REGISTRATION RIGHTS AGREEMENT
TABLE
OF CONTENTS
|
Page
|
||||
|
1.
|
|
Definitions
|
2
|
|
|
2.
|
|
Registration
Rights
|
4
|
|
|
2.1
|
Demand
Registration
|
4
|
||
|
2.2
|
Company
Registration
|
6
|
||
|
2.3
|
Underwriting
Requirements
|
6
|
||
|
2.4
|
Obligations
of the Company
|
7
|
||
|
2.5
|
Furnish
Information
|
9
|
||
|
2.6
|
Expenses
of Registration
|
9
|
||
|
2.7
|
Delay
of Registration
|
9
|
||
|
2.8
|
Indemnification
|
10
|
||
|
2.9
|
Reports
Under Exchange Act
|
12
|
||
|
2.10
|
Limitations
on Subsequent Registration Rights
|
12
|
||
|
2.11
|
“Market
Stand-off” Agreement
|
12
|
||
|
2.12
|
Restrictions
on Transfer
|
13
|
||
|
2.13
|
Termination
of Registration Rights
|
14
|
||
|
3.
|
|
Information
and Observer Rights
|
14
|
|
|
3.1
|
Delivery
of Financial Statements
|
14
|
||
|
3.2
|
Inspection
|
15
|
||
|
3.3
|
Termination
of Information Rights
|
15
|
||
|
3.4
|
Confidentiality
|
16
|
||
|
4.
|
|
Miscellaneous
|
16
|
|
|
4.1
|
Successors
and Assigns
|
16
|
||
|
4.2
|
Governing
Law
|
17
|
||
|
4.3
|
Counterparts;
Facsimile
|
17
|
||
|
4.4
|
Titles
and Subtitles
|
17
|
||
|
4.5
|
Notices
|
17
|
||
|
4.6
|
Amendments
and Waivers
|
17
|
||
|
4.7
|
Severability
|
18
|
||
|
4.8
|
Aggregation
of Stock
|
18
|
||
|
4.9
|
Entire
Agreement
|
18
|
||
|
4.11
|
Dispute
Resolution
|
18
|
||
|
4.12
|
Delays
or Omissions
|
18
|
||
i
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”) is
made
as of the 18th day of November 2008, by and among
Neuro-Hitech, Inc., a Delaware corporation (the “Company”),
and
each of TG United Pharmaceuticals, Inc. and Xxxxx Xxxxxxx (each, an
“Investor”).
The
Company and Investors are sometimes referred to herein as a “Party”
and
collectively as the “Parties.”
RECITALS
WHEREAS,
the
Company and Investors are parties to that certain Modification Agreement
and
Release, dated of even date herewith (the “Modification
Agreement”);
and
WHEREAS,
in
order to induce the Investors to enter into the Modification Agreement, the
Investors and the Company hereby agree that this Agreement shall govern the
rights of the Investors to receive certain information from the Company,
shall
cause the Company to register shares of Common Stock issuable to the Investors
upon the conversion of Series A Preferred Stock and Series B Preferred Stock
issued to the Investors pursuant to the Modification Agreement, and shall
govern
certain other matters as set forth in this Agreement;
NOW,
THEREFORE,
the
parties hereby agree as follows:
| 1. |
Definitions. For
purposes of this Agreement:
|
1.1 “Affiliate”
means,
with respect to any specified Person, any other Person who, directly or
indirectly, controls, is controlled by, or is under common control with such
Person, including without limitation any general
partner,
managing member, officer
or
director of
such
Person or any venture capital fund now or hereafter existing that is controlled
by
one or
more general partners or managing members of, or shares the same management
company with, such Person.
1.2 “Common
Stock”
means
shares of the Company’s common stock, par value $0.001 per share.
1.3 “Damages”
means
any loss, damage,
or liability (joint or several) to which a party hereto may become subject
under
the Securities Act, the Exchange Act, or other federal or state law, insofar
as
such loss, damage,
or liability (or any action in respect thereof) arises out of or is based
upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement of the Company, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto; (ii) an omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make
the
statements therein not misleading; or (iii) any violation or alleged violation
by the indemnifying party
(or
any
of its agents or Affiliates) of
the
Securities Act, the Exchange Act, any state securities law, or any rule or
regulation promulgated under the Securities Act, the Exchange Act, or any
state
securities law.
1.4 “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
2
1.5 “Excluded
Registration”
means
(i)
a
registration relating to
the
sale of securities to employees of the Company or
a
subsidiary pursuant
to a stock option, stock purchase, or similar plan;
(ii) a
registration relating
to an
SEC Rule 145 transaction; (iii) a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities; or (iv) a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities that are also being
registered.
1.6 “Form
S-1”
means
such form under the Securities Act as in effect on the date hereof or any
successor registration form under the Securities Act subsequently adopted
by the
SEC.
1.7 “Form
S-3”
means
such form under the Securities Act as in effect on the date hereof or any
registration form under the Securities Act subsequently adopted by the SEC
that
permits incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
1.8 “GAAP”
means
generally accepted accounting principles in the United States.
1.9 “Holder”
means
any holder of Registrable Securities who is a party to this
Agreement.
1.10 “Immediate
Family Member”
means
a
child,
stepchild,
grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law,
including adoptive relationships, of a natural person referred to
herein.
1.11 “Initiating
Holders”
means,
collectively, Holders who properly initiate a registration request under
this
Agreement.
1.12 “Person”
means
any individual, corporation, partnership, trust, limited liability company,
association or other
entity.
1.13 “Preferred
Stock”
means,
collectively, shares of the Company’s Series A
Preferred Stock and
Series B Preferred Stock.
1.14 “QPO”
means
the closing
of the sale of shares of the Company’s Common Stock to the public, in a
firm-commitment underwritten public offering pursuant to an effective
registration statement under the Securities Act, resulting in at least
$20,000,000 of proceeds, net of the underwriting discount and commissions,
to
the Company.
1.15 “Registrable
Securities”
means
(i) the Common Stock issuable or issued upon conversion of the Series
A
Preferred
Stock; (ii) the Common Stock issuable or issued upon conversion of the
Series B Preferred Stock; (iii) any Common Stock held by the Investors that
is not registered with the SEC; and
(iv) any Common Stock issued as (or issuable upon the conversion or
exercise of any warrant, right, or other security that is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement
of,
the shares referenced in clauses (i)
and
(ii)
above;
excluding in all cases, however, any Registrable Securities sold by a Person
in
a transaction in which the applicable rights
under this
Agreement
are not
assigned pursuant
to Section
4.1,
and
excluding for purposes of Section
2 any
shares for which registration rights have terminated pursuant to Section
2.13 of
this
Agreement.
3
1.16 “Registrable
Securities then outstanding”
means
the number of shares determined by adding the number
of
shares of outstanding Common
Stock that
are
Registrable Securities
and
the
number
of shares of Common
Stock issuable (directly
or indirectly) pursuant
to then exercisable and/or
convertible securities that are Registrable Securities.
1.17 “Restricted
Securities”
means
the securities of the Company required to bear the legend set forth in
Section 2.12(b)
hereof.
1.18 “SEC”
means
the Securities and Exchange Commission.
1.19 “SEC
Rule 144”
means
Rule 144 promulgated by the SEC under the Securities Act.
1.20 “SEC
Rule 145”
means
Rule 145 promulgated by the SEC under the Securities Act.
1.21 “Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
1.22 “Selling
Expenses”
means
all underwriting discounts, selling commissions, and stock transfer taxes
applicable to the sale of Registrable Securities, and fees and disbursements
of
counsel for any Holder, except for
the
fees and disbursements of the Selling Holder Counsel borne and paid by the
Company as
provided in Section
2.6.
1.23 “Series
A Preferred Stock”
means
shares of the Company’s Series A Preferred Stock, par value $0.001 per
share.
1.24 “Series
B Preferred Stock”
means
shares of the Company’s Series B Preferred Stock, par value $0.001 per
share.
| 2. |
Registration
Rights.
The Company covenants and agrees as
follows:
|
2.1 Demand
Registration.
(a) Form
S-1 Demand.
If
at any
time after the earlier of (i) five years after the date of this Agreement
or (ii) 180 days
after
the effective date of the registration statement for the QPO, the Company
receives a request from Holders of at least 750,000 shares of Series A Preferred
Stock (subject
to appropriate adjustment for stock splits, stock dividends, combinations,
and
other recapitalizations) that
the
Company file
a
Form
S-1
registration
statement with
respect to 50% of the Registrable Securities then outstanding, then the Company
shall (i) within 10 days after the date such request is given, give notice
thereof (the “Demand
Notice”)
to all
Holders other than the Initiating Holders; and (ii) as soon as practicable,
and
in any event within 60 days after the date such request is given by the
Initiating Holders, file a
Form
S-1
registration statement under the Securities Act covering all Registrable
Securities that the Initiating
Holders
requested to
be
registered,
subject
to the limitations of Section 2.1(c)
and
Section
2.3.
4
(b) Form
S-3 Demand.
If at
any time when it is eligible to use a Form S-3 registration statement, the
Company receives a request from Holders of at least 750,000 shares of Series
A
Preferred Stock (subject
to appropriate adjustment for stock splits, stock dividends, combinations,
and
other recapitalizations) that
the
Company file a Form S-3 registration statement with respect to at least 25%
of
the Registrable Securities then outstanding, then the Company shall (i) within
10 days after the date such request is given, give a Demand Notice to all
Holders other than the Initiating Holders; and (ii) as soon as practicable,
and
in any event within 45 days after the date such request is given by the
Initiating Holders, file a Form S-3 registration statement under the Securities
Act covering all Registrable Securities requested to be included in such
registration by any other Holders, as specified by notice given by each such
Holder to the Company within 20 days of the date the Demand Notice is given,
and
in each case, subject to the limitations of Section
2.1(c)
and
Section 2.3.
(c) Notwithstanding
the foregoing obligations, if the Company furnishes to Holders requesting
a
registration pursuant to this Section
2.1
a
certificate signed by the Company’s chief executive officer stating that in the
good faith judgment of the Company’s Board of Directors it would be materially
detrimental to the Company and its stockholders for such registration statement
to either become effective or remain effective for as long as such registration
statement otherwise would be required to remain effective, because such action
would (i) materially interfere with a significant acquisition, corporate
reorganization, or other similar transaction involving the Company; (ii)
require
premature disclosure of material information that the Company has a bona
fide
business purpose for preserving as confidential; or (iii) render the
Company unable to comply with requirements under the Securities Act or Exchange
Act,
then the
Company shall have the right to defer taking action with respect to such
filing,
and any time periods with respect to filing or effectiveness thereof shall
be
tolled correspondingly, for a period of not more than 90
days
after the request of the Initiating Holders is given; provided,
however,
that
the Company may not invoke this right more than once in any twelve (12) month
period;
and
provided
further
that the
Company shall not register any securities for its own account or that of
any
other stockholder during such 90 day period other than an
Excluded Registration.
(d) The
Company shall not be obligated to effect, or to take any action to effect,
any
registration pursuant to Section
2.1(a)
(i)
during the period that is 60
days
before the Company’s good faith estimate of the date of filing of, and ending on
a date that is 180 days after the effective date of, a Company-initiated
registration, provided,
that
the Company is actively employing in good faith commercially reasonable efforts
to cause such registration statement to become effective; (ii)
after the Company has effected one registration
pursuant
to Section
2.1(a);
or
(iii) if the Initiating Holders propose to dispose of shares of Registrable
Securities that may be immediately registered on Form S-3 pursuant to a request
made pursuant to Section
2.1(b).
The
Company shall not be obligated to effect, or to take any action to effect,
any
registration pursuant to Section
2.1(b)
(i)
during the period that is 30 days before the Company’s good faith estimate of
the date of filing of, and ending on a date that is 90 days after the effective
date of, a Company-initiated registration, provided, that the Company is
actively employing in good faith commercially reasonable efforts to cause
such
registration statement to become effective; or (ii) if the Company has effected
two registrations pursuant to Section
2.1(b)
within
the twelve (12) month period immediately preceding the date of such
request. A
registration shall not be counted as “effected” for purposes of this
Section
2.1(d)
until
such time as the applicable registration statement has been declared effective
by the SEC, unless the Initiating Holders withdraw their request for such
registration, elect not to pay the registration expenses therefor, and
forfeit their right to one demand registration statement pursuant
to Section
2.6,
in which
case such withdrawn registration statement shall be counted as “effected” for
purposes of this Section 2.1(d).
5
2.2 Company
Registration. If
the
Company proposes to register (including, for this purpose, a registration
effected by the Company for stockholders other than the Holders) any of its
Common
Stock
under
the Securities Act in connection with the public offering of such securities
solely for cash (other than in
an
Excluded Registration), the Company shall, at such time, promptly give each
Holder notice of such registration. Upon the request of each Holder given
within
20 days after such notice is given by the Company, the Company shall, subject
to
the provisions of Section
2.3,
cause to
be registered all of the Registrable Securities that each such Holder has
requested to be included in such registration. The Company shall have the
right
to terminate or withdraw any registration initiated by it under this
Section
2.2
before
the effective date of such registration, whether or not any Holder has elected
to include Registrable Securities in such registration. The expenses
(other
than Selling Expenses) of
such
withdrawn registration shall be borne by the Company in accordance with
Section
2.6.
2.3 Underwriting
Requirements.
(a) If,
pursuant to Section 2.1,
the
Initiating Holders intend
to
distribute the Registrable Securities covered by their request by means of
an
underwriting, they shall so advise the Company as a part of their request
made
pursuant to Section
2.1,
and the
Company shall include such information in the Demand Notice.
The
underwriter(s)
will be
selected by the Company and shall be reasonably acceptable to a majority
in
interest of the Initiating Holders. In such event, the right of any Holder
to
include such Holder’s Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company as provided in
Section
2.4(e))
enter
into an underwriting agreement in customary form with the underwriter(s)
selected for such underwriting. Notwithstanding any other provision of this
Section
2.3,
if the
underwriter(s) advise(s) the Initiating Holders in writing that marketing
factors require a limitation on the number of shares to be underwritten,
then
the Initiating Holders shall so advise all Holders of Registrable Securities
that otherwise would be underwritten pursuant hereto, and the number of
Registrable Securities that may be included in the underwriting shall be
allocated among such
Holders
of Registrable Securities, including the Initiating Holders, in proportion
(as
nearly as practicable) to the number of Registrable Securities owned
by
each Holder
or in
such other proportion as shall mutually be agreed to by all such selling
Holders;
provided,
however,
that
the number of Registrable Securities held by the Holders to be included in
such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
6
(b) In
connection with any offering involving an underwriting of shares of the
Company’s capital stock pursuant to Section
2.2,
the
Company shall not be required to include any of the Holders’ Registrable
Securities in such underwriting unless the Holders accept the terms of the
underwriting as agreed upon between the Company and its underwriters, and
then
only in such quantity as the underwriters in their sole discretion determine
will not jeopardize the success of the offering by the Company. If the total
number of securities, including Registrable Securities, requested by
stockholders to be included in such offering exceeds the number of securities
to
be sold (other than by the Company) that the underwriters in their reasonable
discretion determine is compatible with the success of the offering, then
the
Company shall be required to include in the offering only that number of
such
securities, including Registrable Securities, which the underwriters and
the
Company in their sole discretion determine will not jeopardize the success
of
the offering. If
the
underwriters determine that less than all of the Registrable Securities
requested to be registered can be included in such offering, then the
Registrable Securities that are included in such offering shall be allocated
among
the selling Holders in
proportion (as nearly as practicable to)
the
number of Registrable Securities owned
by
each
selling
Holder
or in
such other proportions as shall mutually be agreed to by all such selling
Holders. Notwithstanding
the foregoing, in no event shall (i)
the
number of Registrable Securities included in the offering be reduced unless
all
other securities (other than securities to be sold by the Company) are first
entirely excluded from the offering, or
(ii) the
number of Registrable Securities included in the offering be reduced below
30%
of the total number of securities included in such offering, unless such
offering is the QPO, in which case the selling Holders may be excluded further
if the underwriters make the determination described above and no other
stockholder’s securities are included in such offering. For purposes of the
provision in this Section
2.3(b)
concerning apportionment, for any selling Holder
that
is
a
partnership, limited liability company, or corporation, the partners, members,
retired partners, retired members, stockholders, and Affiliates of such Holder,
or the estates and Immediate Family Members of any such partners, retired
partners, members, and retired members and any trusts for the benefit of
any of
the foregoing Persons, shall be deemed to be a single “selling Holder,” and any
pro rata reduction with respect to such “selling Holder” shall be based upon the
aggregate number of Registrable Securities owned by all Persons included
in such
“selling Holder,” as defined in this sentence.
(c) For
purposes of Section 2.1,
a
registration shall not be counted as “effected” if, as a result of an exercise
of the underwriter’s cutback provisions in Section
2.3(a),
all of
the Registrable Securities that Holders have requested to be included in
such
registration statement are not actually included.
2.4 Obligations
of the Company.
Whenever
required under this Section
2
to
effect the registration of any Registrable Securities, the Company shall,
as
expeditiously as reasonably possible:
(a) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts
to cause
such registration statement to become effective and, upon the request of
the
Holders of a majority of the Registrable Securities registered thereunder,
keep
such registration statement effective for a period of up to 120 days or,
if
earlier, until the distribution contemplated in the registration statement
has
been completed; provided,
however,
that
(i) such 120 day period shall be extended for a period of time equal to the
period the Holder refrains, at the request of an underwriter of Common Stock
(or
other securities) of the Company, from selling any securities included in
such
registration, and (ii) in the case of any registration of Registrable Securities
on Form S-3 that are intended to be offered on a continuous or delayed basis,
subject to compliance with applicable SEC rules, such 120 day period shall
be
extended for up to 180 days, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold;
7
(b) prepare
and file with the SEC such amendments and supplements to such registration
statement, and the prospectus used in connection with such registration
statement, as may be necessary to comply with the Securities Act in order
to
enable the disposition of all securities covered by such registration
statement;
(c) furnish
to the selling Holders such numbers of copies of a prospectus, including
a
preliminary prospectus, as required by the Securities Act, and such other
documents as the Holders may reasonably request in order to facilitate their
disposition of their Registrable Securities;
(d) use
its
commercially reasonable efforts to register and qualify the securities covered
by such registration statement under such other securities or blue-sky laws
of
such jurisdictions as shall be reasonably requested by the selling Holders;
provided
that
the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions,
unless
the Company is already subject to service in such jurisdiction and except
as may
be required by the Securities Act;
(e) in
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form,
with
the underwriter(s)
of such
offering;
(f) use
its
commercially reasonable efforts to cause all such Registrable Securities
covered
by such registration statement to be listed on a national securities exchange
or
trading system and each securities exchange and trading system (if any) on
which
similar securities issued by the Company are then listed;
(g) provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
to this Agreement and provide a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration;
(h) promptly
make available for inspection by the selling Holders, any
underwriter(s)
participating in any disposition pursuant to such registration statement,
and
any attorney or accountant or other agent retained by any such underwriter
or
selected by the selling Holders, all financial and other records, pertinent
corporate documents, and properties of the Company, and cause the Company’s
officers, directors, employees, and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant, or agent,
in each
case, as necessary or advisable to verify the accuracy of the information
in
such registration statement and to conduct appropriate due diligence
in
connection therewith;
8
(i) notify
each selling Holder, promptly after the Company receives notice thereof,
of the
time when such registration statement has been declared effective or a
supplement to any prospectus forming a part of such registration statement
has
been filed; and
(j) after
such registration statement becomes effective, notify each selling Holder
of any
request by the SEC that the Company amend or supplement such registration
statement or prospectus.
2.5 Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take
any
action pursuant to this Section
2
with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as is reasonably required to effect the registration of such Holder’s
Registrable Securities.
2.6 Expenses
of Registration.
All
expenses (other than Selling Expenses) incurred in connection with
registrations, filings, or qualifications pursuant to Section 2,
including all registration, filing, and qualification fees; printers’ and
accounting fees; fees and disbursements of counsel for the Company; and the
reasonable fees and disbursements, not to exceed $50,000, of one counsel
for the
selling Holders (“Selling
Holder Counsel”),
shall
be borne and paid by the Company; provided,
however,
that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section
2.1 if
the
registration request is subsequently withdrawn at the request of the Holders
of
a majority of the Registrable Securities to be registered (in which case
all
selling Holders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be included in the withdrawn registration),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one registration pursuant to Section
2.1(a)
or
Section
2.1(b),
as the
case may be; provided
further
that if,
at the time of such withdrawal, the Holders shall have learned of a material
adverse change in the condition, business, or prospects of the Company from
that
known to the Holders at the time of their request and have withdrawn the
request
with reasonable promptness after learning of such information then the Holders
shall not be required to pay any of such expenses and shall not forfeit their
right to one registration pursuant to Section
2.1(a)
or
Section
2.1(b).
All
Selling Expenses relating to Registrable Securities registered pursuant to
this
Section
2
shall be
borne and paid by the Holders pro rata on the basis of the number of Registrable
Securities registered on their behalf.
2.7 Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any registration pursuant to this Agreement as the result
of
any controversy
that might arise with respect to the interpretation or implementation of
this
Section
2.
9
2.8 Indemnification.
If any
Registrable Securities are included in a registration statement under this
Section
2:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
selling Holder, and the partners, members, officers, directors, and stockholders
of each such Holder; legal counsel and accountants for each such Holder;
any
underwriter (as defined in the Securities Act) for each such Holder; and
each
Person, if any, who controls such Holder or underwriter within the meaning
of
the Securities Act or the Exchange Act, against any Damages, and the Company
will pay to each such Holder, underwriter, controlling Person, or other
aforementioned Person any legal or other expenses reasonably incurred thereby
in
connection with investigating or
defending any
claim
or
proceeding from which Damages may result, as such expenses are incurred;
provided,
however,
that
the indemnity agreement contained in this Section
2.8(a)
shall
not apply to amounts paid in settlement of any such claim
or
proceeding if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld, nor shall the Company be
liable for any Damages to the extent that they arise out of or are based
upon
actions or omissions made in reliance upon and in conformity with written
information furnished by or on behalf of any such Holder, underwriter,
controlling Person, or other aforementioned Person expressly for use in
connection with such registration.
(b) To
the
extent permitted by law, each selling Holder, severally and not jointly,
will
indemnify and hold harmless the Company, and each of its directors, each
of its
officers who has signed the registration statement, each Person (if any),
who
controls the Company within the meaning of the Securities Act, legal counsel
and
accountants for the Company, any underwriter (as defined in the Securities
Act),
any other Holder selling securities in such registration statement, and any
controlling Person of any such underwriter or other Holder, against any Damages,
in each case only to the extent that such Damages arise out of or are based
upon
actions or omissions made in reliance upon and in conformity with written
information furnished by or on behalf of such selling Holder expressly for
use
in connection with such registration; and each such selling Holder will pay
to
the Company and each other aforementioned Person any legal or other expenses
reasonably incurred thereby in connection with investigating or
defending any
claim
or
proceeding from which Damages may result, as such expenses are incurred;
provided,
however,
that
the indemnity agreement contained in this Section
2.8(b)
shall
not apply to amounts paid in settlement of any such claim
or
proceeding if such settlement is effected without the consent of the Holder,
which consent shall not be unreasonably withheld; and provided
further
that in
no event shall the aggregate amounts payable by any Holder by way of indemnity
or contribution under Sections
2.8(b)
and
2.8(d) exceed
the proceeds from the offering received
by such Holder (net
of
any Selling Expenses
paid by
such Holder),
except
in the case of fraud or willful misconduct by such Holder.
(c) Promptly
after receipt by an indemnified party under this Section 2.8 of
notice
of the commencement of any action (including any governmental action) for
which
a party may be entitled to indemnification hereunder, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying
party
under this Section
2.8,
give the
indemnifying party notice of the commencement thereof. The indemnifying party
shall have the right to participate in such action and, to the extent the
indemnifying party so desires, participate jointly with any other indemnifying
party to which notice has been given, and to assume the defense thereof with
counsel mutually satisfactory to the parties; provided,
however,
that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such action. The failure to give notice to
the
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Section
2.8,
to the
extent that such failure materially prejudices the indemnifying party’s ability
to defend such action. The failure to give notice to the indemnifying party
will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section
2.8.
10
(d) To
provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any party otherwise entitled
to
indemnification hereunder makes a claim for indemnification pursuant to this
Section
2.8
but it
is judicially determined (by the entry of a final judgment or decree by a
court
of competent jurisdiction and the expiration of time to appeal or the denial
of
the last right of appeal) that such indemnification may not be enforced in
such
case, notwithstanding the fact that this Section
2.8
provides
for indemnification in such case, or (ii) contribution under the Securities
Act
may be required on the part of any party hereto for which indemnification
is
provided under this Section 2.8,
then,
and in each such case, such parties will contribute to the aggregate losses,
claims, damages, liabilities, or expenses to which they may be subject (after
contribution from others) in such proportion as is appropriate to reflect
the
relative fault of each
of
the
indemnifying party and the indemnified party in connection with the statements,
omissions, or other actions that resulted in such loss, claim, damage,
liability, or expense, as well as to reflect any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or allegedly untrue statement of a material fact, or the
omission or alleged omission of a material fact, relates to information supplied
by the indemnifying party or by the indemnified party and the parties’ relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission; provided,
however,
that,
in any such case, (x) no Holder will be required to contribute any amount
in
excess of the public offering price of all such Registrable Securities offered
and sold by such Holder pursuant to such registration statement, and (y)
no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation; and provided
further
that in
no event shall a Holder’s liability pursuant to this Section
2.8(d),
when
combined with the amounts paid or payable by such Holder pursuant to
Section
2.8(b),
exceed
the proceeds from the offering received
by such Holder (net
of
any Selling Expenses) paid
by such
Holder),
except
in the case of willful misconduct or fraud by such Holder.
(e) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(f) Unless
otherwise superseded by an underwriting agreement entered into in connection
with the underwritten public offering, the obligations of the Company and
Holders under this Section
2.8
shall
survive the completion of any offering of Registrable Securities in a
registration under this Section
2,
and
otherwise shall survive the termination of this Agreement.
11
2.9 Reports
Under Exchange Act.
With a
view to making available to the Holders the benefits of SEC Rule 144 and
any
other rule or regulation of the SEC that may at any time permit a Holder
to sell
securities of the
Company to the public without registration or pursuant to a registration
on Form
S-3, the Company shall:
(a) continue
to make and keep available
adequate current public
information,
as
those terms are understood and defined in SEC Rule 144, at all
times;
(b) use
commercially reasonable efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities
Act and
the Exchange Act; and
(c) furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) to
the
extent accurate, a
written
statement by the Company that it has complied with the reporting requirements
of
SEC Rule 144, the Securities Act, and the Exchange Act, or that it qualifies
as
a registrant whose securities may be resold pursuant to Form S-3 (at any
time
after the Company so qualifies); (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by
the Company; and (iii) such other information as may be reasonably requested
in
availing any Holder of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to Form
S-3
(at any time after the Company so qualifies to use such form).
2.10 Limitations
on Subsequent Registration Rights.
From
and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the Registrable Securities
then
outstanding, enter into any agreement with any holder or prospective holder
of
any securities of the Company that (i) would provide to such holder the
right to include securities in any registration on other than either a pro
rata
basis with respect to the Registrable Securities or on a subordinate basis
after
all Holders have had the opportunity to include in the registration and offering
all shares of Registrable Securities that they wish to so include or (ii)
allow
such holder or prospective holder to initiate a demand for registration of
any
securities held by such holder or prospective holder.
2.11 “Market
Stand-off” Agreement.
Each
Holder hereby agrees that it will not, without the prior written consent
of the
managing underwriter, during the period commencing on the date of the final
prospectus relating to the registration
by the Company for its own behalf of shares of its Common Stock or any other
equity securities under
the
Securities Act on a registration
statement on
Form
S-1 or Form S-3, and
ending on the date specified by the Company and the managing underwriter
(such
period not to exceed 180 days in the case of the QPO, which period may be
extended upon the request of the managing underwriter, to the extent required
by
any FINRA rules, for an additional period of up to 15 days if the Company
issues
or proposes to issue an earnings or other public release within 15 days of
the
expiration of the 180-day lockup period),
(i)
lend;
offer; pledge; sell; contract to sell; sell any option or contract to purchase;
purchase any option or contract to sell; grant any option, right, or warrant
to
purchase; or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable
or
exchangeable (directly
or indirectly) for
Common Stock held
immediately before
the effective date of the registration statement for such offering
or
(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of such
securities,
whether
any such transaction described in clause (i) or (ii) above is to be settled
by
delivery of Common Stock or other securities, in cash, or otherwise. The
foregoing provisions of this Section
2.11 shall
not
apply to the sale of any shares to an underwriter pursuant to an underwriting
agreement, and shall be applicable to the Holders only if all officers and
directors are subject to the same restrictions. The underwriters in connection
with such registration
are
intended third-party beneficiaries of this Section
2.11
and
shall have the right, power, and authority to enforce the provisions hereof
as
though they were a party hereto. Each Holder further agrees to execute such
agreements as may be reasonably requested by the underwriters in connection
with such registration
that are
consistent with this Section
2.11
or that
are necessary to give further effect thereto.
12
2.12 Restrictions
on Transfer.
(a) The
Series A Preferred
Stock,
Series
B Preferred Stock and the Registrable Securities shall not be sold, pledged,
or
otherwise transferred, and the Company shall not recognize and shall issue
stop-transfer instructions to its transfer agent with respect to any such
sale,
pledge, or transfer, except upon the conditions specified in this Agreement,
which conditions are intended to ensure compliance with the provisions of
the
Securities Act. A transferring Holder will cause any proposed purchaser,
pledgee, or transferee of the Series A Preferred
Stock,
Series
B Preferred Stock and the Registrable Securities held by such Holder to agree
to
take and hold such securities subject to the provisions and upon the conditions
specified in this Agreement.
(b) Each
certificate or
instrument representing
(i) the Series A Preferred
Stock,
(ii) the Series B Preferred Stock, (iii) the Registrable Securities,
and (iv) any other securities issued in respect of the securities
referenced in clauses (i), (ii) and (iii), upon any stock split, stock
dividend, recapitalization, merger, consolidation, or similar event, shall
(unless otherwise permitted by the provisions of Section 2.12(c))
be
stamped or otherwise imprinted with a legend substantially
in
the
following form:
THE
SECURITIES
REPRESENTED HEREBY
HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. SUCH SHARES MAY NOT BE SOLD, PLEDGED, OR TRANSFERRED IN THE
ABSENCE
OF SUCH REGISTRATION OR A VALID EXEMPTION FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT.
THE
SECURITIES
REPRESENTED HEREBY
MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF
THE COMPANY.
The
Holders consent to the Company making a notation in its records and giving
instructions to any transfer agent of the Restricted Securities in order
to
implement the restrictions on transfer set forth in this Section 2.12.
13
(c) The
holder of each certificate representing Restricted Securities, by acceptance
thereof, agrees to comply in all respects with the provisions of this
Section 2.
Before
any proposed sale, pledge, or transfer of any Restricted Securities, unless
there is in effect a registration statement under the Securities Act covering
the proposed transaction, the Holder thereof shall give notice to the Company
of
such Holder’s intention to effect such sale, pledge, or transfer. Each such
notice shall describe the manner and circumstances of the proposed sale,
pledge,
or transfer in sufficient detail and, if reasonably requested by the Company,
shall be accompanied at such Holder’s expense by either (i) a written
opinion of legal counsel who shall, and whose legal opinion shall, be reasonably
satisfactory to the Company, addressed to the Company, to the effect that
the
proposed transaction may be effected without registration under the Securities
Act; (ii) a “no action” letter from the SEC to the effect that the proposed
sale, pledge, or transfer of such Restricted Securities without registration
will not result in a recommendation by the staff of the SEC that action be
taken
with respect thereto; or (iii) any other evidence reasonably satisfactory
to counsel to the Company to the effect that the proposed sale, pledge, or
transfer of the Restricted Securities may be effected without registration
under
the Securities Act, whereupon the Holder of such Restricted Securities shall
be
entitled to sell, pledge, or transfer such Restricted Securities in accordance
with the terms of the notice given by the Holder to the Company. The Company
will not require such a legal opinion or “no action” letter (x) in any
transaction in compliance with SEC
Rule
144
or (y) in any transaction in which such Holder distributes Restricted
Securities to an Affiliate of such Holder for no consideration; provided
that
each transferee agrees in writing to be subject to the terms of this
Section 2.12.
Each
certificate or
instrument evidencing
the Restricted Securities transferred as above provided shall bear, except
if
such transfer is made pursuant to SEC
Rule 144,
the appropriate restrictive legend set forth in Section 2.12(b),
except
that such certificate shall not bear such restrictive legend if, in the opinion
of counsel for such Holder and the Company, such legend is not required in
order
to establish compliance with any provisions of the Securities Act.
2.13 Termination
of Registration Rights. The
right
of any Holder to request registration or inclusion of Registrable Securities
in
any registration pursuant to Section
2.1
or
Section
2.2
shall
terminate upon the
earliest
to occur
of:
(a) the
closing of a Deemed Liquidation Event, as such term is defined in the Company’s
Certificate
of Incorporation;
(b) when
all
of such Holder’s Registrable Securities could be sold without restriction under
SEC Rule 144
within
any 90-day period;
and
(c) the
fifth
anniversary of the QPO.
| 3. |
Information
and Observer Rights.
|
3.1 Delivery
of Financial Statements.
So long
as an Investor holds at least 750,000 shares of Registrable Securities,
the
Company shall deliver to the Investor:
(a) as
soon
as practicable, but in any event within 90 days after the end of each fiscal
year of the Company, (i) a balance sheet as of the end of such year,
(ii)
statements of income and of cash flows for such year, and a comparison between
(x) the actual amounts as of and for such fiscal year and (y) the comparable
amounts for the prior year and as included in the Budget (as defined in
Section
3.1(c))
for
such year, with an explanation of any material differences between such amounts
and a schedule as to the sources and applications of funds for such
year,
and
(iii) a statement of stockholders’ equity as of the end of such year,
all such
financial statements
audited
and certified by Sherb & Co., LLP, the Company’s independent public
accountants, or such other nationally recognized public accountants selected
by
the Company;
14
(b) as
soon
as practicable, but in any event within 45 days after the end of each of
the
first three quarters of each fiscal year of the Company, unaudited statements
of
income and of cash flows for such fiscal quarter, and an unaudited balance
sheet
as of the end of such fiscal quarter,
all
prepared in accordance with GAAP (except that such
financial statements
may (i)
be subject to normal year-end audit adjustments and (ii) not contain all
notes
thereto that may be required in accordance with GAAP);
(c) as
soon
as practicable, but in any event 30 days before the end of each fiscal year,
a
budget and business plan for the next fiscal year (collectively, the
“Budget”),
approved
by the Board of Directors and
prepared
on a monthly basis, including balance sheets, income statements, and statements
of cash flow for such months and, promptly after prepared, any other budgets
or
revised budgets prepared by the Company;
If,
for
any period, the Company has any subsidiary whose accounts are consolidated
with
those of the Company, then in respect of such period the financial statements
delivered pursuant to the foregoing sections shall be the consolidated and
consolidating financial statements of the Company and all such consolidated
subsidiaries.
Notwithstanding
anything else in this Section
3.1
to the
contrary, so long as the Company is providing the information set forth in
this
Section
3.1
to the
SEC, the Company’s compliance with the reporting requirements of the SEC in
respect of such periodic reports shall constitute compliance with the Company’s
obligations to the Investor set forth in this Section
3.1.
3.2 Inspection.
So
long
as an Investor holds at least 750,000 shares of Registrable
Securities,
the
Company shall permit the Investor,
at such
Investor’s expense, to visit and inspect the Company’s properties; examine its
books of account and records; and discuss the Company’s affairs, finances, and
accounts with its officers, during normal business hours of the Company as
may
be reasonably requested by the Investor; provided,
however,
that
the Company shall not be obligated pursuant to this Section
3.2
to
provide access to any information that it reasonably and in good faith considers
to be a trade secret or confidential information (unless covered by an
enforceable confidentiality agreement, in form acceptable to the Company)
or the
disclosure of which would adversely affect the attorney-client privilege
between
the Company and its counsel.
3.3 Termination
of Information Rights.
The
covenants set forth in Section
3.1
and
Section
3.2
shall
terminate and be of no further force or effect (i) upon a Deemed
Liquidation Event, as such term is defined in the Company’s Certificate
of Incorporation.
15
3.4 Confidentiality.
Each
Investor agrees that such Investor will keep confidential and will not disclose,
divulge, or use
for
any purpose (other than to monitor its investment in the Company) any
confidential information obtained from the Company pursuant to the terms
of this
Agreement, unless such confidential information (a) is known or becomes known
to
the
public in general (other than as a result of a breach of this Section
3.4
by such
Investor), (b) is or has been independently developed or conceived by the
Investor without use of the Company’s confidential information, or (c) is or has
been made known or disclosed to the Investor by a third party without a breach
of any obligation of confidentiality such third party may have to the Company;
provided,
however,
that an
Investor may disclose confidential information (i) to its attorneys,
accountants, consultants, and other professionals to the extent necessary
to
obtain their services in connection with monitoring its investment in the
Company; (ii) to any prospective purchaser of any Registrable Securities
from
such Investor, if such prospective purchaser agrees to be bound by the
provisions of this Section
3.4
and is
not a competitor of the Company;
(iii) to
any Affiliate,
partner, member, stockholder, or wholly owned subsidiary of such Investor
in the
ordinary course of business, provided
that
such
Investor informs such Person that such information is confidential and directs
such Person to maintain the confidentiality of such information;
or (iv)
as may otherwise be required by law, provided
that
the
Investor promptly notifies the Company of such disclosure and takes reasonable
steps to minimize the extent of any such required disclosure.
| 4. |
Miscellaneous.
|
4.1 Successors
and Assigns.
The
rights under this Agreement
may be assigned
(but
only
with all related obligations)
by
a
Holder to a transferee of
Registrable Securities that
(i)
is an Affiliate of a Holder; (ii) is a Holder’s Immediate Family Member or trust
for the benefit of an individual Holder or one or more of such Holder’s
Immediate Family Members; or (iii)
after
such transfer, holds at least 250,000 shares of Registrable Securities (subject
to appropriate adjustment for stock splits, stock dividends, combinations,
and
other recapitalizations); provided, however, that (x) the Company is, within
a
reasonable time after such transfer, furnished with written notice of the
name
and address of such transferee and the Registrable Securities
with
respect to which
such
rights
are
being
transferred; and (y) such transferee agrees in
a
written instrument delivered
to
the
Company
to be
bound by and
subject to the
terms
and
conditions of
this
Agreement,
including the provisions of Section
2.11.
For the
purposes of determining the number of shares of Registrable Securities held
by a
transferee, the holdings of a
transferee (1) that is an Affiliate or stockholder
of
a
Holder; (2) who
is
a
Holder’s Immediate
Family Member; or (3) that is a trust for the benefit of an individual
Holder or such Holder’s Immediate Family Member
shall be
aggregated together and with those of the transferring Holder; provided further
that all transferees who would not qualify individually for assignment of
rights
shall have a single attorney-in-fact for the purpose of exercising any rights,
receiving notices, or taking any action under this Agreement.
The terms and conditions of this Agreement inure to the benefit of and are
binding upon the respective successors and permitted assignees of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon
any
party other than the parties hereto or their respective successors and permitted
assignees any rights, remedies, obligations or liabilities under or by reason
of
this Agreement, except as expressly provided herein.
16
4.2 Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, regardless of the laws that might otherwise govern
under
applicable principles of conflicts of law.
4.3 Counterparts;
Facsimile.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed and delivered by facsimile
signature and in two or more counterparts, each of which shall be deemed
an
original, but all of which together shall constitute one and the same
instrument.
4.4 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are for convenience only and
are not
to be considered in construing or interpreting this Agreement.
4.5 Notices.
All
notices and other communications given or made pursuant to this Agreement
shall
be in writing and shall be deemed effectively given
upon the
earlier of actual receipt or: (i) personal delivery to the party to be notified;
(ii) when sent, if sent by electronic mail or facsimile during the recipient’s
normal business hours, and if not sent during normal business hours, then
on the
recipient’s next business day; (iii) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid;
or (iv)
one business
day
after
the
business day of
deposit
with a nationally recognized overnight courier, freight prepaid, specifying
next-day delivery, with written verification of receipt. All communications
to
the Investor shall be sent to the address on file with the Company, and if
to
the Company, to the
principal office of the Company and to the attention of the Chief Financial
Officer, or to such
email address, facsimile number, or address as subsequently modified by written
notice given in accordance with this Section
4.5.
If
notice is given to the Company, a copy shall also be sent to Arent Fox LLP,
0000
Xxxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxx,
Esq., and if notice is given to the Investor, a copy shall also be given
to
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
4.6 Amendments
and Waivers. Any
term
of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance, and
either retroactively or prospectively) only with the written consent of the
Company and the holders of a majority of the Registrable Securities then
outstanding; provided
that
the
Company may in its sole discretion waive compliance with Section
2.12(c)
(and the
Company’s failure to object promptly in writing after
notification of
a
proposed assignment allegedly in violation of Section
2.12(c)
shall be
deemed to be a waiver);
and
provided further that any provision hereof may be waived by any waiving party
on
such party’s own behalf, without the consent of any other party.
Notwithstanding the foregoing, this Agreement may not be amended or terminated
and the observance of any term hereof may not be waived with respect to any
Holder without the written consent of such Holder, unless such amendment,
termination, or waiver applies to all Holders in the same fashion. The Company
shall give prompt notice of any amendment or termination hereof or waiver
hereunder to any party hereto that did not consent in writing to such amendment,
termination, or waiver. Any amendment, termination, or waiver effected in
accordance with this Section
4.6
shall be
binding on all parties hereto, regardless of whether any such party has
consented thereto. No waivers of or exceptions to any term, condition, or
provision of this Agreement, in any one or more instances, shall be deemed
to be
or construed as a further or continuing waiver of any such term, condition,
or
provision.
17
4.7 Severability.
In
case
any one or more of the provisions contained in this Agreement is for any
reason
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision of this
Agreement, and such invalid, illegal, or unenforceable provision shall be
reformed and construed so that it will be valid, legal, and enforceable to
the
maximum extent permitted by law.
4.8 Aggregation
of Stock. All
shares of Registrable Securities held or acquired by Affiliates shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement and such Affiliated persons may apportion such
rights as among themselves in any manner they deem appropriate.
4.9 Entire
Agreement.
This
Agreement (including any Schedules and Exhibits hereto) constitutes the full
and
entire understanding and agreement among
the
parties with respect to the subject matter hereof, and any other written
or oral
agreement relating to the subject matter hereof existing between the parties
is
expressly canceled.
4.11 Dispute
Resolution. Each
of
the Parties submits to the jurisdiction of any state or federal court sitting
in
Wilmington, Delaware, in any action or proceeding arising out of or relating
to
this Agreement and agrees that all claims in respect of the action or proceeding
may be heard and determined in any such court. Each Party also agrees not
to
bring any action or proceeding arising out of or relating to this Agreement
in
any other court. Each of the Parties waives any defense of inconvenient forum
to
the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other Party with
respect
thereto. Any Party may make service on any other Party by sending or delivering
a copy of the process to the Party to be served at the address and in the
manner
provided for the giving of notices in Section
4.5.
Nothing
in this Section
4.11,
however, shall affect the right of any Party to bring any action or proceeding
arising out of or relating to this Agreement in any other court or to serve
legal process in any other manner permitted by law or at equity. Each Party
agrees that a final judgment in any action or proceeding so brought shall
be
conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or at equity.
4.12 Delays
or Omissions.
No
delay or omission to exercise any right, power, or remedy accruing to any
party
under this Agreement, upon any breach or default of any other party under
this
Agreement, shall impair any such right, power, or remedy of such nonbreaching
or
nondefaulting party, nor shall it be construed to be a waiver of or acquiescence
to any such breach or default, or to any similar breach or default thereafter
occurring, nor shall any waiver of any single breach or default be deemed
a
waiver of any other breach or default theretofore or thereafter occurring.
All
remedies, whether under this Agreement or by law or otherwise afforded to
any
party, shall be cumulative and not alternative.
[Remainder
of Page Intentionally Left Blank]
18
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
| By: | /s/ Xxxxx Xxxxxxx |
| Name: | Xxxxx Xxxxxxx |
| Title: | Chief Financial Officer |
TG
UNITED PHARMACEUTICALS, INC.
| By: | /s/ Xxxxx Xxxxxxx |
| Name: | Xxxxx Xxxxxxx |
| Title: |
|
/s/
Xxxxx Xxxxxxx
|
|
| Xxxxx Xxxxxxx |
