EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
March 23, 1999, is by and between Sepracor Inc., a Delaware corporation
("Sepracor"), and HemaSure Inc., a Delaware corporation (the "Company").
PRELIMINARY STATEMENT
WHEREAS, pursuant to a Securities Purchase Agreement of even date
herewith (the "Securities Purchase Agreement") by and between the parties
hereto, the Company issued and granted to Sepracor (i) 1,333,334 shares of
common stock, par value $.01 per share ("Common Stock"), of the Company, and
(ii) warrants to purchase 667,000 shares of Common Stock; and
WHEREAS, the Company and Sepracor desire to provide for certain
arrangements with respect to the registration of such shares of Common Stock
(the "Shares") under the Securities Act of 1933, as amended.
NOW THEREFORE, in consideration of these premises, and the respective
promises and covenants contained herein, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Certain Definitions. For purposes of this Agreement,
capitalized terms used herein and not defined elsewhere herein shall have the
following meanings:
"Act" means the United States Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under the Act, as they each may, from time to time, be in effect.
"Commission" means the United States Securities and Exchange
Commission, or any other Federal agency at the time administering the Act.
"Common Stock" means the shares of common stock, par value $0.01 per
share, of the Company.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the rules and regulations
of the Commission issued under the Exchange Act, as they each may, from time to
time, be in effect.
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"Indemnified Party" has the meaning described in Section 2.4(c)
below.
"Indemnifying Party" has the meaning described in Section 2.4(c)
below.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of its equity
securities (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means all expenses incurred by the Company in
complying with Section 2.1 and Section 2.2, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company, state Blue Sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts on the Registrable Shares,
selling commissions on the Registrable Shares, transfer taxes and the fees and
expenses of any selling Stockholders', including such selling Stockholders' own
counsel, which shall be borne by the participating Stockholders in proportion to
the number of Registrable Shares offered by each.
"Registrable Shares" means (i) the Shares, and (ii) any other shares
of Common Stock issued in respect thereof (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
that shares of Common Stock which are Registrable Shares shall cease to be
Registrable Shares (i) when they have been sold, transferred or otherwise
disposed of or exchanged pursuant to a registration statement under the Act,
(ii) when such shares are eligible for resale pursuant to Rule 144 (k) (or its
successor) or in single transaction pursuant to Rule 144(e) (or its successor)
under the Act, or (iii) upon any sale, transfer or other disposition in any
manner to any person or entity which, by virtue of Section 2.9 of this
Agreement, is not entitled to the rights provided by this Agreement.
"Stockholders" means Sepracor and any person or entities to whom the
rights granted under this Agreement are validly transferred by Sepracor, and
their permitted successors or assigns pursuant to Section 2.9 hereof.
ARTICLE 2.
REGISTRATION RIGHTS
Section 2.1 Required Registrations.
(a) Commencing on the date hereof, a Stockholder or
Stockholders may request, in writing (which request shall state the number of
Registrable Shares to be so registered, the intended method of distribution and
a certification as to the market value of such shares as
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described below), that the Company effect the registration of Registrable Shares
owned by such Stockholder or Stockholders having an aggregate offering price of
at least $1,000,000 (based on the last reported sale price for the Common Stock
on the business day preceding the date of such written request, as reported by
the OTC Bulletin Board or any other exchange or market on which the Common Stock
is then listed or included for quotation). Upon receipt of any such request, the
Company shall within 10 days give written notice of such proposed registration
to all Stockholders. Such Stockholders shall have the right, by giving written
notice to the Company within 30 days after the Company provides its notice, to
elect to have included in such registration such of their Registrable Shares as
such Stockholders may request in such notice of election; provided that if the
underwriter (if any) managing the offering determines that, because of marketing
factors, all of the Registrable Shares requested to be registered by all
Stockholders may not be included in the offering, then all Stockholders who have
requested registration shall participate in the registration pro rata based upon
the number of Registrable Shares which they have requested to be so registered,
provided, however, that the number of Registrable Shares shall not be reduced
unless all securities that are not Registrable Shares are first excluded from
the underwriting. Thereupon, the Company shall file a Registration Statement
under the Act, to the extent necessary to permit the sale or other disposition
of the subject Registrable Shares in accordance with the intended method of
distribution specified in the written registration request.
(b) The Company shall not be required to effect more than
two (2) registrations pursuant to paragraph (a) above. In addition, the Company
shall not be required to effect any registration within six months after the
effective date of any other Registration Statement registering shares to be sold
by the Company.
(c) If at any time any request to register Registrable
Shares pursuant to this Section 2 is received by the Company, the Company is
engaged in, or the Board of Directors of the Company has resolved to initiate
within 30 days of the time of the request for a registration as provided in this
Section 2, a registered public offering as to which the Stockholders are
entitled to include Registrable Shares pursuant to Section 2.2, or is engaged in
any activity other than such a public offering which, in the good faith
determination of the Company's Board of Directors, would be materially adversely
affected by the requested registration, then the Company may at its option
direct that such request be delayed for a period not in excess of 120 days from
(i) the earlier of (1) the effective date of such offering and (2) the 60th day
after the filing of such offering, or (ii) the date of commencement of such
other material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any consecutive 12-month period.
Section 2.2 Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement at
any time and from time to time (including, to the extent the Company is so
permitted, a registration effected by the Company for stockholders other than
the Stockholder (a "Registration"), it will, prior to such filing, give written
notice to all Stockholders of its intention to do so and, upon the written
request
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of a Stockholder or Stockholders given within 10 days after the Company provides
such notice (which request shall state the number of Registrable Shares to be
registered and the intended method of distribution of such Registrable Shares),
the Company shall, subject to Section 2.2(b) below, cause all Registrable Shares
which the Company has been requested by such Stockholder or Stockholders to be
included in the Registration; provided that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 2.2
without obligation or liability to any Stockholder.
(b) In connection with any Registration under this Section 2.2
involving an underwritten offering, the Company shall not be required to include
any Registrable Shares in such Registration unless the holders thereof accept
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If in the opinion of the managing underwriter
employed by the Company for the distribution of equity securities it shall
determine, in its sole discretion, that the registration of all, or part of, the
Registrable Shares which the holders have requested to be included would
interfere with the successful marketing of the proposed public offering, then
the Company shall be required to include in the Registration only that number of
Registrable Shares, if any, which the managing underwriter believes may be sold
without interfering with the successful marketing of the proposed public
offering. If the number of Registrable Shares to be included in Registration in
accordance with the foregoing is less than the total number of shares which the
holders of Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such Registration shall participate in
the underwritten offering pro rata based upon their total ownership of shares of
Common Stock of the Company. If any holder would thus be entitled to include
more shares than such holder requested to be registered, the excess shall be
allocated among other requesting holders pro rata based upon their total
ownership of shares of Common Stock of the Company.
Section 2.3 Registration Procedures.
(a) If and whenever the Company is required by the provisions of this
Agreement to effect the registration of any of the Registrable Shares under the
Act, the Company shall:
(i) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best efforts to cause
that Registration Statement to become and remain effective for such
period of time (not exceeding three months) as may be necessary to
effect the sale or other disposition of all Registrable Shares
covered by such Registration Statement or until the Registrable
Shares covered thereby cease to be Registrable Shares, whichever is
sooner;
(ii) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement
as may be necessary to keep the Registration Statement effective for
the period described in Section 2.3(a)(i) above;
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(iii) as expeditiously as possible furnish to each selling
Stockholder such reasonable numbers of copies of the prospectus,
including a preliminary prospectus, and such other documents as each
selling Stockholder may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Shares owned by
such selling Stockholder;
(iv) as expeditiously as possible register or qualify the
Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholder
shall reasonably request; provided, however, that (x) the Company
shall not for any purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified or execute a general consent to service of process in any
jurisdiction and (y) if the Company is offering securities for its
own account, it need not register or qualify under the securities or
Blue Sky laws of any jurisdiction in which the managing underwriter
has no intention of offering or selling securities for the account of
the Company (except that the Company will use its best efforts to
register or qualify Registrable Securities in such additional
jurisdiction as any Stockholder may request subject to the limitation
of clause (x) and at such Stockholder's expense);
(v) if the distribution is to be made by means of an
underwritten public offering and subject to receiving reasonable
assurances of confidentiality, make available for inspection by the
underwriters and its counsel or other advisors, such financial and
other information and books and records of the Company, and cause the
officers, directors, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries as
shall be reasonably necessary, in the judgment of such underwriters'
counsel, to conduct a reasonable investigation within the meaning of
Section 11 of the Act; and
(vi) use best efforts to make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months which shall satisfy the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(b) Each selling Stockholder of Registrable Shares agrees that, upon
receipt of any notice from the Company of (i) any request by the Commission for
amendments or supplements to a Registration Statement or related prospectus
covering any of such selling Stockholder's Registrable Shares, (ii) the issuance
by the Commission of any stop order suspending the effectiveness of a
Registration Statement covering any of such selling Stockholder's Registrable
Shares or the initiation of any proceedings for that purpose, (iii) the receipt
by the Company of any notification with respect to the suspension of the
qualification of any Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) the happening
of any event that requires the making of any changes in the Registration
Statement covering any of such selling Stockholder's Registrable Shares so that
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
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make the statements therein not misleading or that any related prospectus will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading, and (v) the Company's
reasonable determination that a post-effective amendment to a Registration
Statement covering any of such selling Stockholder's Registrable Shares or a
supplement to any related prospectus is required under the Act; such selling
Stockholder will forthwith discontinue disposition of such Registrable Shares
until it is advised in writing by the Company that the use of the applicable
prospectus (as amended or supplemented, as the case may be) and disposition of
the Registrable Shares covered thereby pursuant thereto may be resumed provided,
however, (x) that such selling Stockholder shall not resume its disposition of
Registrable Shares pursuant to such Registration Statement or related prospectus
unless it has received notice from the Company that such Registration Statement
or amendment has become effective under the Act and has received a copy or
copies of the related prospectus (as then amended or supplemented, as the case
may be) unless the Registrable Shares are then listed on a national securities
exchange and the Company has advised such selling Stockholder that the Company
has delivered copies of the related prospectus, as then amended or supplemented,
in transactions effected upon such exchange, subject to any subsequent receipt
by such selling Stockholder from the Company of notice of any of the events
contemplated by Stock clauses (i) through (iv) of this paragraph, and, (y) if so
directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Stockholder's possession, of the prospectus covering such Registrable Shares
current at the time of receipt of such notice.
Section 2.4 Allocation of Expenses. The Company will pay all
Registration Expenses of all Registrations under this Agreement.
Section 2.5 Indemnification.
(a) In the event of any Registration of any of the Registrable Shares
under the Act pursuant to this Agreement, the Company will indemnify and hold
harmless the seller of such Registrable Shares, and each other person, if any,
who controls such seller within the meaning of the Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller or controlling person may become subject under the Act, the Exchange
Act, state securities or Blue Sky laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of any material fact contained in any
Registration Statement under which such Registrable Shares were registered under
the Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and, subject to Section 2.5(c) below, the Company will reimburse
such seller and each such controlling person for any legal or any other expenses
reasonably incurred by such seller or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
810765.2
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out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or final prospectus, or any such
amendment or supplement, in conformity with information furnished to the
Company, in writing, by or on behalf of such seller or controlling person for
use in the preparation thereof or inclusion therein.
The indemnity provisions in this Section 2.5(a) are subject to the
condition that, insofar as they relate to any untrue statement or omission made
in a preliminary prospectus or prospectus but eliminated or remedied in a final
prospectus or an amended or supplemented prospectus on file with the Commission
at the time the Registration Statement becomes effective or any amended or
supplemented prospectus filed with the Commission pursuant to Rule 424 or any
successor provision under the Act (the "Final Prospectus"), such indemnity
provisions shall not inure to the benefit of any selling Stockholder of
Registrable Shares (x) if such selling Stockholder is not selling Registrable
Shares through an underwriter, if the Company has previously delivered copies of
such Final Prospectus to such selling Stockholder of Registrable Shares or, if
Registrable Shares are then listed on a national securities exchange, if the
Company has previously delivered copies of such Final Prospectus to such
national securities exchange in accordance with Rule 153 or any successor rule
under the Act, or (y) if such selling Stockholder is selling Registrable Shares
through an underwriter or underwriters, the Company has previously delivered
copies of such Final Prospectus to such underwriter or underwriters.
(b) In the event of any registration of any of the Registrable Shares
under the Act pursuant to this Agreement, each seller of Registrable Shares,
severally and not jointly, will indemnify and hold harmless the Company, each of
its directors and officers and each underwriter (if any), and each person, if
any, who controls the Company or any such underwriter within the meaning of the
Act or the Exchange Act, against any losses, claims, damages or liabilities,
joint or several, to which the Company, such directors and officers, underwriter
or controlling person may become subject under the Act, Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement of a material fact contained in any Registration
Statement under which such Registrable Shares were registered under the Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission to state a material fact required to
be stated therein or necessary to make the statement therein not misleading, if
the statement or omission was made in conformity with information furnished in
writing to the Company by or on behalf of such seller, specifically for use in
connection with the preparation of or inclusion in such Registration Statement,
prospectus, amendment or supplement; and shall reimburse the Company, its
directors and officers, and each such controlling person for any legal or other
expenses reasonably incurred by any of them in connection with investigation or
defending any such loss, claim, damage, liability or action, provided, however,
in no event shall any Stockholder's indemnification obligations hereunder exceed
the gross proceeds (less any underwriting discounts and commissions) from the
sale of Registrable Shares by such Stockholder. This indemnity shall remain in
full force and effect for the applicable statute of limitation period
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regardless of any investigation made by or on behalf of the Company or such
controlling person and shall survive the transfer of shares.
(c) Each party entitled to indemnification under this Section 2.5
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any loss, claim, action, damage or liability as to which
indemnity may be sought, and shall permit the Indemnified Party to assume the
defense of any such claim or any litigation resulting therefrom; provided, that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnified Party of its obligations under this Section 2.5, except to the
extent that such failure to give notice prejudices the Indemnifying Party or
such Indemnifying Party is damaged by such delay. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense (but in no event shall the
Indemnifying Party be obligated to pay the fees and expenses of more than one
counsel for the Indemnified Party or Parties) if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential conflict of interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
(d) If the indemnification provided for in this Section 2.5 is
finally determined by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage, or expense
referred to therein or contribution is required under the Act in circumstances
for which indemnification is provided under this Section 2, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage, or expense (i) in such proportion
as is appropriate to reflect the relative benefits received by the Indemnifying
Party on the one hand and the Indemnified Party on the other or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Indemnifying Party on the one hand and the Indemnified Party on
the other but also the relative fault of the Indemnifying Party and the
Indemnified Party as well as 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 alleged
untrue statement of a material fact or the omission to state a material fact
related 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
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case, (A) no Stockholder will be required to contribute any amount in excess of
the gross proceeds of all Registrable Shares sold by it pursuant to such
Registration Statement, and (B) no person or entity guilty of fraudulent
misrepresentation, within the meaning of Section 11(f) of the Act, shall be
entitled to contribution from any person or entity who is not guilty of such
fraudulent misrepresentation.
(e) The obligations under this Section 2.5 shall survive the
completion of any offering of Registrable Shares in a registration statement.
Section 2.6 Indemnification with Respect to Underwritten Offering.
(a) In the event that Registrable Shares are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Section 2.2, the Company
agrees to enter into an underwriting agreement containing customary
representations and warranties with respect to the business and operations of
the Company and customary covenants and agreements to be performed by the
Company, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering.
(b) No Stockholder may participate in any underwritten registration
pursuant to Section 2 hereunder unless such Stockholder (i) agrees to sell the
Registrable Shares which it proposes to sell in such underwritten registration
on the basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, reasonable and customary indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements and provides such other information and documentation
as the Company or the underwriters may reasonably request in connection with
such underwritten registration.
Section 2.7 Information by Holder. Each holder of Registrable Shares
included in any Registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Article 2.
Section 2.8 "Stand-Off" Agreement. Each Stockholder, if requested by
the Company and an underwriter of Common Stock or other securities of the
Company, shall agree not to sell or otherwise transfer or dispose of any
Registrable Shares or other securities of the Company held by such Stockholder
for a specified period of time (not to exceed 180 days) following the effective
date of a Registration Statement; provided, that all officers and directors of
the Company enter into similar agreements. Such agreement shall be in writing in
a form satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the Registrable Shares or other
securities subject to the foregoing restriction until the end of the standoff
period.
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Section 2.9 Transfer of Rights.
(a) The rights and obligations of Sepracor under this Agreement may
be transferred by Sepracor to another person or entity that is then a
stockholder of the Company, to any affiliate of the Company or Sepracor or to
any person or entity acquiring at least 10,000 Registrable Shares (as adjusted
for stock splits, stock dividends, recapitalization or similar events).
(b) Any transferee (other than a stockholder who is already a party
to an agreement in form and substance similar to this Agreement) to whom rights
under this Agreement are transferred shall, as a condition to such transfer,
deliver to the Company a written instrument by which such transferee identifies
itself, gives the Company notice of the transfer of such rights, indicates the
Registrable Shares owned by it and agrees to be bound by the obligations imposed
upon Sepracor under this Agreement.
(c) A transferee to whom rights are transferred pursuant to this
Section 2.9 may not again transfer such rights to any other person or entity,
other than as provided in this Section 2.9.
Section 2.10 Exchange Act Registration; Rule 144 Reporting. The
Company covenants and agrees that until such time as Sepracor no longer holds
any Registrable Shares (or such Registrable Shares otherwise cease to be
Registrable Shares) it will:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 under the Act,
even if the Company subsequently ceases to be subject to such reporting
requirements; and
(b) file with the Commission in a timely manner all reports and
documents required of the Company under the Act and the Exchange Act.
ARTICLE 3.
MISCELLANEOUS
Section 3.1 Notices. All notices, requests, demands, claims, and
other communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered two (2)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one (1) business day after it is sent via a
reputable nationwide overnight courier service, in each case to the intended
recipient as set forth below:
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If to Sepracor:
Sepracor Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Senior Vice President, Finance and Administration
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxx, Esq.
If to the Company:
HemaSure Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: President and Chief Executive Officer
with a copy to:
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, III, Esq.
Either party hereto may hereto give any notice, request, demand, claim or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Either party
hereto may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
hereto notice in the manner herein set forth.
Section 3.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
permitted assigns of the parties hereto.
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Section 3.3 Headings. Article and Section headings used in this
Agreement are for convenience of reference only and shall not constitute a part
of this Agreement for any purpose or affect the construction of this Agreement.
Section 3.4 Survival of Agreements, Representations and Warranties.
All agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement.
Section 3.5 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), with the written consent of the Company and the holders of at
least 51% of the Registrable Shares; provided, that this Agreement may be
amended with the consent of the holders of less than all Registrable Shares (but
not less than 51% of such shares) only in a manner which affects all Registrable
Shares in the same fashion. 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.
Section 3.6 Governing Law. This Agreement shall be deemed to have
been made in the State of New York and the validity of this Agreement, the
construction, interpretation and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of New York, without regard to
principles of conflicts of law.
Section 3.7 Arbitration. Any dispute or controversy arising under,
out of, in connection with, or in relation to this Agreement shall be determined
and settled by arbitration in New York by a panel of three (3) members in
accordance with the commercial rules of the American Arbitration Association.
Any award rendered therein shall be final and binding upon the parties and their
legal representatives, successors and assigns and judgment may be entered in any
court having jurisdiction thereof.
Section 3.8 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
one and the same Agreement. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto.
(Signatures on Following Page)
810765.2
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
HEMASURE INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President of Finance
and Administration
SEPRACOR INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President of Finance
and Administration
810765.2
