EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 11, 2000, between Omni
Nutraceuticals, Inc., a Utah corporation (together with any successors, the
"Company"), and R. Xxxxxxx Xxxxxx and Xxxxxx Xxxxxxx (collectively, "Xxxxxx").
Xxxxxx owns or has the right to acquire 7,000,000 shares of Common Stock
(as defined) of the Company. The Company and the Xxxxxx xxxx it to be in their
respective best interests to set forth the rights of the Xxxxxx in connection
with public offerings and sales of shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and Xxxxxx hereby agree as
follows:
SECTION 1. DEFINITIONS.
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As used in this Agreement, the following terms shall have the following
meanings:
"Common Stock" shall mean the Common Stock, $0.01 par value per share, of
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the Company.
"Commission" shall mean the Securities and Exchange Commission or any other
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Federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Information" has the meaning ascribed thereto in Section 6(i).
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"Inspectors" has the meaning ascribed thereto in Section 6(i).
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"Xxxxxx" shall mean Xxxxxx or any successor to, or assignee or transferee
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of, Xxxxxx.
"Xxxxxx'x Counsel" has the meaning ascribed thereto in Section 6(b).
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"Material Transaction" means any material transaction in which the Company
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or any of its Subsidiaries proposes to engage or is engaged, including a
purchase or sale of assets or securities, financing, merger, consolidation,
tender offer or any other transaction that would require disclosure pursuant to
the Exchange Act, and with respect to which the board of directors of the
Company reasonably has determined in good faith that compliance with this
Agreement may reasonably be expected to either materially interfere with the
Company's or such Subsidiary's ability to consummate such transaction in a
timely fashion or require the Company to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
"Other Shares" shall mean at any time those shares of Common Stock which do
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not constitute Primary Shares or Registrable Shares.
"Person" shall be construed as broadly as possible and shall include,
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without limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint shares company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Prior Registration Rights Agreement" shall refer to that certain
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Registration Rights Agreement, dated January 24, 2000, by and between the
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Company and the Investors (as defined therein).
"Primary Shares" shall mean at any time authorized but unissued shares of
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Common Stock or shares of Common Stock held by the Company in its treasury.
"Registrable Shares" shall mean any Restricted Shares owned by Xxxxxx, but
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not to exceed 7,000,000 shares.
"Restricted Shares" means, at any time, with respect to Xxxxxx, shares of
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Common Stock then owned by Xxxxxx, and includes: (i) Common Stock which may be
issued as a dividend or distribution; (ii) any other securities which by their
terms are exercisable or exchangeable for or convertible into Common Stock
issued; and (iii) any securities received in respect of, or upon exercise,
exchange or conversion of, the foregoing, in each case in clauses (i) through
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(iii) which at any time are held by such Xxxxxx, or any transferee of Xxxxxx.
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As to any particular shares of Restricted Shares, such shares shall cease to be
Restricted Shares when: (A) they have been registered under the Securities Act,
the registration statement in connection therewith has been declared effective
and they have been disposed of pursuant to and in the manner described in such
effective registration statement; (B) they are sold or distributed pursuant to
Rule 144; (C) they have ceased to be outstanding; or (D) provided Xxxxxx is the
beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act)
of less than ten percent (10%) of the issued and outstanding shares of Common
Stock as of the date of the filing of a registration statement pursuant to which
Xxxxxx would otherwise have the right to require such shares to be included in
such registration statement, if such shares could lawfully then be sold in an
open market transaction, without registration, and without restriction or
limitation as to the amount of such sales (other than pursuant to a lock-up
agreement).
"Registration Date" shall mean the date upon which the registration
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statement pursuant to which the Company shall have registered shares of Common
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Stock under the Securities Act for sale to the public shall have been declared
effective.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act or any
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successor rule thereto or any complementary rule thereto (such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933 or any successor
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Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"Subsidiary" means, with respect to any Person, any other Person of which
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the securities having a majority of the ordinary voting power in electing the
board of directors (or other governing body) of such other Person, at the time
as of which any determination is being made, are owned by such first Person
either directly or through one or more of its Subsidiaries.
SECTION 2. FORM S-8 REGISTRATION.
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If the Company at any time proposes for any reason to register shares of
Common Stock under the Securities Act on Form S-8 promulgated under the
Securities Act or any successor forms thereto, it shall promptly give written
notice to Xxxxxx of its intention to so register such shares and, upon the
written request, delivered to the Company within 10 days after delivery of any
such notice by the Company, of Xxxxxx to include in such registration
Registrable Shares issuable upon exercise of options or warrants and which are
eligible for inclusion on Form S-8 (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the Company
shall cause all such Registrable Shares to be included in such registration on
the same terms and conditions as the securities otherwise being sold in such
registration.
SECTION 3. PIGGYBACK REGISTRATION.
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If the Company at any time proposes for any reason to register shares of
Common Stock under the Securities Act (other than on Form S-4, F-4 or S-8
promulgated under the Securities Act or any successor forms thereto), including,
without limitation, the registration statement to be filed by the Company
pursuant to the Prior Registration Rights Agreement, it shall promptly give
written notice to Xxxxxx of its intention to so register such shares and, upon
the written request, delivered to the Company within 30 days after delivery of
any such notice by the Company, of Xxxxxx to include in such registration
Registrable Shares (which request shall specify the number of Registrable Shares
proposed to be included in such registration), the Company shall cause all such
Registrable Shares to be included in such registration on the same terms and
conditions as the securities otherwise being sold in such registration;
provided, however, that, if the managing underwriter advises the Company that
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the inclusion of all Registrable Shares requested to be included in such
registration would interfere with the successful marketing (including pricing)
of the shares proposed to be registered by the Company, then the number of
shares proposed to be included in such registration shall be included in the
following order of priority:
(i) first, the Registrable Shares requested to be included in such
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registration (or, if necessary (and other than as provided below), such
Registrable Shares pro rata among the holders thereof based upon the number of
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Registrable Shares requested to be registered by each such holder), along with
the Registrable Shares (as defined in the Prior Registration rights Agreement)
to be included in such registration pursuant to the provisions of the Prior
Registration Rights Agreement;
(ii) second, the Primary Shares; and
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(iii) third, the Other Shares.
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Notwithstanding the foregoing, in the event that an underwriter does not
permit all of Xxxxxx'x Registrable Shares and the Registrable Shares of the
Investors, as defined in the Prior Registration Rights Agreement (the
"Investors' Registrable Shares"), to be included in such registration, then
Xxxxxx and the Investors shall have the right to include an equal number of
shares in such registration statement.
SECTION 4. REGISTRATIONS ON FORM S-3.
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Notwithstanding anything herein to the contrary, at such time as the
Company shall have qualified for the use of Form S-3 promulgated under the
Securities Act or any successor form thereto, Xxxxxx shall have the right to
request in writing one registration on Form S-3 (or any successor form thereto)
of Registrable Shares within any 12-month period, which request or requests
shall: (i) specify the number of Registrable Shares intended to be sold or
disposed of and the holders thereof; (ii) state the intended method of
disposition of such Registrable Shares; and (iii) relate to Registrable Shares
having an aggregate gross offering price of at least $500,000.
SECTION 5. REQUIRED REGISTRATION.
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The Company shall, within 90 days of the date hereof (the "Required Filing
Date"), file a registration statement covering up to 7,000,000 shares of Common
Stock beneficially owned by Xxxxxx. Such registration statement shall be
effective within 150 days of the date hereof (the "Required Effective Date").
The Company shall pay all registration expenses (other than commissions and
selling expenses) associated with such registration, and shall keep such
registration statement effective and current for a period of not less than the
sooner of (i) two years from the date of this Agreement, or (ii) the date on
which all the shares of Common Stock registered under such registration
statement have been disposed of pursuant to and in the manner described in such
effective registration statement, or (iii) provided Xxxxxx is the beneficial
owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of less than
ten percent (10%) of the issued and outstanding shares of Common Stock, the date
on which such shares of Common Stock become eligible for sale pursuant to Rule
144(k) or its equivalent, but in any event such registration statement shall be
kept current for at least one year.
SECTION 6. PREPARATION AND FILING.
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If, and whenever, the Company is under an obligation pursuant to this
Agreement to effect the registration of any Registrable Shares, the Company
shall, as expeditiously as practicable:
(a) cause a registration statement that registers such Registrable
Shares to become and remain effective for a period of two years or such earlier
period in which all of such Registrable Shares have been disposed of pursuant to
and in the manner described in such effective registration statement or,
provided Xxxxxx is the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of less than ten percent (10%) of the issued and
outstanding shares of Common Stock, such Shares become eligible for sale
pursuant to Rule 144(k) or its equivalent, but in any event such registration
statement shall be kept current for at least one year;
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by Xxxxxx ("Xxxxxx'x Counsel"), copies of
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all such documents proposed to be filed (it being understood that such
five-business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are supplied to
Xxxxxx'x Counsel in advance of the proposed filing by a period of time that is
customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
at least a period of two years or such earlier period in which all of such
Registrable Shares have been disposed of pursuant to and in the manner described
in such effective registration statement or, provided Xxxxxx is the beneficial
owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of less than
ten percent (10%) of the issued and outstanding shares of Common Stock, such
Shares become eligible for sale pursuant to Rule 144(k) or its equivalent, but
in any event such registration statement shall be kept current for at least one
year, and to comply with the provisions of the Securities Act with respect to
the sale or other disposition of such Registrable Shares;
(d) notify in writing Xxxxxx' Counsel promptly of (i) the receipt by
the Company of any notification with respect to any comments by the Commission
with respect to such registration statement or prospectus or any amendment or
supplement thereto or any request by the Commission for the amending or
supplementing thereof or for additional information with respect thereto, (ii)
the receipt by the Company of any notification with respect to the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or prospectus or any amendment or supplement thereto or
the initiation or threatening of any proceeding for that purpose (and the
Company shall use its best efforts to prevent the issuance thereof or, if
issued, to obtain its withdrawal) and (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes;
(e) register or qualify such Registrable Shares under such other
securities or blue sky laws of such jurisdictions as Xxxxxx reasonably requests,
to keep such registrations or qualifications in effect for so long as the
registration statement covering such Registrable Shares remains in effect and do
any and all other acts and things which may be reasonably necessary or advisable
to enable Xxxxxx to consummate the disposition in such jurisdictions of the
Registrable Shares owned by Xxxxxx; provided, however, the Company shall not be
required to qualify to do business in any such jurisdictions;
(f) furnish to Xxxxxx or other holders of such Registrable Shares such
number of copies of a summary prospectus, if any, or other prospectus, including
a preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Xxxxxx or holders may reasonably request
in order to facilitate the public sale or other disposition of such Registrable
Shares;
(g) cause such Registrable Shares to be registered with or approved by
such other governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable Xxxxxx or other holders of
such Registrable Shares to consummate the disposition of such Registrable
Shares;
(h) notify on a timely basis Xxxxxx or other holders of such
Registrable Shares at any time when a prospectus relating to such Registrable
Shares is required to be delivered under the Securities Act within the
appropriate period mentioned in subsection (a) of this Section 6, of the
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happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing and, at the request of Xxxxxx or other holders of
Registrable Shares, prepare and furnish to Xxxxxx or such other holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) make available upon reasonable notice and during normal business
hours, for inspection by Xxxxxx or other holders of such Registrable Shares, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by Xxxxxx or
underwriter (collectively, the "Inspectors"), all pertinent financial and other
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records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable them
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to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such Inspector in
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connection with such registration statement. Any of the Information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the Inspectors, unless
(i) the disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the registration statement, (ii) the release of such
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, or (iii) such Information has been made generally
available to the public through no breach of any duty owed the Company. Xxxxxx
agrees that he will, upon learning that disclosure of such Information is sought
in a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at customary
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times and covering matters of the type customarily covered by cold comfort
letters;
(k) use its best efforts to obtain from its counsel an opinion or
opinions in customary form, naming Xxxxxx as an additional addressee or party
who may rely thereon;
(l) provide a transfer agent and registrar (which may be the same
entity and which may not be the Company) for such Registrable Shares;
(m) issue to any underwriter to which Xxxxxx holding such Registrable
Shares may sell shares in such offering certificates evidencing such Registrable
Shares;
(n) list such Registrable Shares on any national securities exchange on
which any shares of Common Stock are listed or, if shares of Common Stock are
not listed on a national securities exchange, use its best efforts to qualify
such Registrable Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the "NASD"), or such other
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national securities exchange as the holders of a majority of such Registrable
Shares shall reasonably request and provided that the Company meets the listing
criteria of such exchange; and
(o) otherwise comply with all applicable rules of the Commission, and
timely file all reports required to be filed pursuant to the Securities and
Exchange Act of 1934, as amended; and
(p) use its best efforts to take all other commercially reasonable
steps necessary to effect the registration of such Registrable Shares
contemplated hereby.
Each holder of Registrable Shares which are being or have been registered
pursuant to this Agreement shall provide to the Company, upon the request of the
Company, such written information and materials as the Company may reasonably
request in order to effect or maintain such registration. Each holder of
Registrable Shares, upon receipt of any notice from the Company of any event of
the kind described in Section 6(h), shall forthwith discontinue the disposition
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of such Registrable Shares pursuant to the registration statement covering such
Registrable Shares until such holder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 6(h), and, if so directed by the
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Company, such holder shall deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Shares at the time of receipt of such notice.
SECTION 7. EXPENSES.
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All expenses (other than underwriting discounts and commissions relating to
the Registrable Shares, as provided in the last sentence of this Section 7)
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incurred by the Company or Xxxxxx in complying with this Agreement, including,
without limitation, all registration and filing fees (including all expenses
incident to filing with the NYSE, AMEX, NASD and other domestic or foreign
exchanges, as applicable), fees and expenses of complying with securities and
blue sky laws, printing expenses, fees and expenses of the Company's counsel and
accountants and fees and expenses of one legal counsel for Xxxxxx, shall be paid
by the Company; provided, however, that all underwriting discounts and selling
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commissions (but not non-accountable expense allowances) applicable solely to
the Registrable Shares and Other Shares shall be borne by the holders selling
such Registrable Shares and Other Shares, in proportion to the number of
Registrable Shares and Other Shares sold by each such holder.
SECTION 8. INDEMNIFICATION.
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(a) To the extent permitted by law, in connection with any registration
of any Registrable Shares under the Securities Act pursuant to this Agreement,
the Company shall indemnify and hold harmless each holder of Registrable Shares
and any other Person acting on behalf of the holders of Registrable Shares and
each other Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act, and if the holder is an individual, his heirs and
legal representatives, against any losses, claims, damages or liabilities, joint
or several (or actions in respect thereof), to which any of the foregoing
Persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or allegedly untrue statement
of a material fact contained in the registration statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon the 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, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Company of the Securities Act or state securities or
blue sky laws applicable to the Company and relating to action or inaction
required of the Company in connection with such registration or qualification
under such state securities or blue sky laws; and shall reimburse the holders of
Registrable Shares, such other Person acting on behalf of the holders of
Registrable Shares and each such controlling Person for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action (including any legal or other
expenses incurred) arises out of or is based upon an untrue statement or
allegedly untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by the holders of
Registrable Shares specifically for use in the preparation thereof;
(b) To the extent permitted by law, in connection with any registration
of Registrable Shares under the Securities Act pursuant to this Agreement, each
seller of Registrable Shares shall severally and not jointly indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
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8(a)) the Company, each director of the Company, each officer of the Company who
shall sign such registration statement, each underwriter, broker or other Person
acting on behalf of the holders of Registrable Shares and each Person who
controls any of the foregoing Persons within the meaning of the Securities Act
with respect to any statement or omission from such registration statement, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or such underwriter through an instrument
duly executed by such seller specifically for use in connection with the
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; provided, however, that the
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maximum amount of liability in respect of such indemnification shall be in
proportion to and limited to, in the case of each seller of Registrable Shares,
an amount equal to the net proceeds actually received by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in Sections 8(a) and
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8(b), such indemnified party will, if a claim in respect thereof is made against
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an indemnifying party, give written notice to the latter of the commencement of
such action. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that, if any indemnified party shall have reasonably
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concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 8, then the indemnifying party shall not have the right to
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assume the defense of such action on behalf of such indemnified party and such
indemnifying party shall reimburse such indemnified party and any Person
controlling such indemnified party for that portion of the fees and expenses of
any counsel retained by the indemnified party which is reasonably related to the
matters covered by the indemnity agreement provided in this Section 8. The
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indemnifying party shall not be liable to indemnify any indemnified party for
any settlement of any claim or action effected without the consent of the
indemnifying party, which consent may not be unreasonably withheld. The
indemnifying party may not settle any claim or action brought against an
indemnified party without such party's consent unless (i) such indemnified party
is unconditionally released from all and any liability as part of such
settlement and (ii) such settlement does not impose any consent order,
injunction or decree which would restrict the future activity or conduct of the
indemnified party.
(d) If the indemnification provided for in this Section 8 is held by a
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court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage, liability or action referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions which resulted in such loss, claim, damage,
liability or action as well as any other relevant equitable considerations;
provided, however, that, if the circumstances described in either proviso of
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Section 8(a) apply to the indemnified party, then the indemnifying party shall
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not be obligated to contribute with respect to such loss, claim, damage,
liability or action to the extent set forth in such proviso. 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 or alleged omission to state 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.
(e) The Company and the sellers of Registrable Shares agree that it
would not be just and equitable if contribution pursuant to Section 8(d) were
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determined by pro rata allocation (even if the holders and any underwriters were
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treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
Sections 8(c) and 8(d). The amount paid or payable by an indemnified party as a
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result of the losses, claims, damages and liabilities referred to in subsection
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(d) of this Section 8 shall be deemed to include, subject to the limitations set
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forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
SECTION 9. UNDERWRITING AGREEMENT.
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Notwithstanding the provisions of Sections 5, 6, 7 and 8, to the extent
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that the sellers of Registrable Shares shall enter into an underwriting or
similar agreement, which agreement contains provisions covering one or more
issues addressed in such Sections, the provisions contained in such agreement
addressing such issue or issues shall control; provided, however, that any such
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agreement to which the Company is not a party shall not be binding upon the
Company.
SECTION 10. OBLIGATIONS OF XXXXXX.
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(a) Each seller of Registrable Shares shall furnish to the Company such
written information regarding such seller and the distribution proposed by the
seller as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
(b) Xxxxxx, by Xxxxxx'x acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of the Registration Statement(s)
hereunder, unless Xxxxxx has notified the Company in writing of Xxxxxx'x
election to exclude all of Xxxxxx'x Registrable Securities from the Registration
Statement, thereby waiving its rights to have his Registrable Securities
registered thereunder.
(c) In the event that the holders of a majority of Xxxxxx'x Registrable
Shares and the Investors' Registrable Shares (combined) being registered
determine to engage the services of an underwriter, Xxxxxx agrees to enter into
and perform his obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary indemnification and
contribution obligations, with the managing underwriter of such offering and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of Xxxxxx'x Registrable Shares and the Investors'
Registrable Shares, unless Xxxxxx notifies the Company in writing of his
election to exclude all of his Registrable Shares from the Registration
Statement(s), thereby waiving his rights to have his Registrable Shares
registered thereunder.
(d) Xxxxxx agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 6(h), Xxxxxx will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement(s) covering such Registrable Securities until Xxxxxx'x
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 6(h), which the Company agrees will be prepared and filed with the
Commission as expeditiously as possible, and, if so directed by the Company,
Xxxxxx shall deliver to the Company (at the expense of the Company) all copies
in Xxxxxx'x possession of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
(e) Xxxxxx may not participate in any underwritten registration
hereunder unless Xxxxxx (i) agrees to sell Xxxxxx'x Registrable Securities on
the basis provided in any underwriting arrangements relating to such
underwritten registration, (ii) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, lock-up agreements for periods
up to 180 days, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay his
pro rata share of all underwriting discounts and commissions.
SECTION 11. EXCHANGE ACT COMPLIANCE.
-------------------------
From the Registration Date or such earlier date as a registration statement
filed by the Company pursuant to the Securities Act relating to any class of the
Company's securities shall have become effective, the Company shall comply with
all of the reporting requirements of the Exchange Act applicable to it (whether
or not it shall be required to do so) and shall comply with all other public
information reporting requirements of the Commission which are conditions to the
availability of Rule 144 for the sale of the Common Stock. The Company shall
cooperate with Xxxxxx in supplying such information as may be necessary for
Xxxxxx to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of Rule
144.
SECTION 12. MERGERS, ETC.
-------------
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation unless the surviving corporation shall, prior to such merger,
consolidation or reorganization, agree in writing to assume the obligations of
the Company under this Agreement, and for that purpose references hereunder to
"Registrable Shares" shall be deemed to include the common stock, if any, that
holders of Registrable Shares would be entitled to receive in exchange for
Common Stock under any such merger, consolidation or reorganization; provided,
--------
however, that, to the extent holders of Registrable Shares receive securities
------
that are by their terms convertible into common stock of the issuer thereof,
-
then only such shares of common stock as are issued or issuable upon conversion
-
of said convertible securities shall be included within the definition of
"Registrable Shares."
SECTION 13. NEW CERTIFICATES.
-----------------
As expeditiously as possible after the effectiveness of any registration
statement filed pursuant to this Agreement, the Company will deliver in exchange
for any legended certificate evidencing Restricted Shares so registered, new
stock certificates not bearing any restrictive legends, provided that, in the
--------
event less than all of the Restricted Shares evidenced by such legended
certificate are registered, the holder thereof agrees that a new certificate
evidencing such unregistered shares will be issued bearing the appropriate
restrictive legend. Notwithstanding any provision herein to the contrary, the
Company shall be required by the terms of this Agreement to deliver new stock
certificates without a restrictive legend in exchange for any legended
certificates representing the 1,000,000 Restricted Shares to be issued by the
Company to Xxxxxx pursuant to that certain letter agreement with Xxxx Xxxxx
dated as of March 11, 2000 only after Xxxxxx notifies the Company in writing
that he has sold, or has a present intent to sell, such Restricted Shares
pursuant to an effective registration statement filed pursuant to this
Agreement.
SECTION 14. NO CONFLICT OF RIGHTS.
------------------------
The Company represents and warrants to Xxxxxx that the registration rights
granted to Xxxxxx hereby do not conflict with any other registration rights
granted by the Company. The Company shall not, after the date hereof, grant any
registration rights which conflict with or impair the registration rights
granted hereby.
SECTION 15. TERMINATION.
-----------
This Agreement shall terminate and be of no further force or effect on the
date on which all the Registrable Shares have been registered under the
Securities Act and have been disposed of in accordance with such registration.
SECTION 16. SUCCESSORS AND ASSIGNS; GENDER, ETC.
---------------------------------------
This Agreement shall bind and inure to the benefit of the Company and
Xxxxxx and, subject to Section 17, the respective heirs, legal representatives,
----------
successors and assigns of the Company and Xxxxxx. Words in the masculine gender
shall include the feminine and neuter and vice versa and the meaning ascribed to
terms defined herein shall be applicable to both the singular and plural forms
of such terms.
SECTION 17. ASSIGNMENT.
----------
Xxxxxx may assign his rights hereunder to any purchaser or transferee of
Registrable Shares, whereupon such purchaser or transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement as if such purchaser or transferee was substituted for "Xxxxxx" herein
and had originally been a party hereto. Within a reasonable time following such
assignment, the assignee shall provide to the Company a written notice of the
name and address of such transferee or assignee, and such other information as
the Company may reasonably request.
SECTION 18. SEVERABILITY.
------------
It is the desire and intent of the parties hereto that the provisions of
this Agreement be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any particular provision of this Agreement shall be adjudicated
by a court of competent jurisdiction to be invalid, prohibited or unenforceable
for any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 19. ENTIRE AGREEMENT.
-----------------
This Agreement and the other writings referred to therein or delivered
pursuant thereto, contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
SECTION 20. NOTICES.
-------
All notices, requests, demands, claims, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally, telecopied, sent by internationally-recognized overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(i) If to the Company, to:
Omni Nutraceuticals, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Chief Executive Officer
(ii) If to Xxxxxx, to:
R. Xxxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy:(000) 000-0000
All such notices and other communications shall be deemed to have been
given and received (a) in the case of personal delivery or delivery by telecopy,
on the date of such delivery, (b) in the case of delivery by
internationally-recognized overnight courier, on the first business day
following such dispatch and (c) in the case of mailing, on the third business
day following such mailing.
SECTION 21. MODIFICATIONS; AMENDMENTS; WAIVERS.
------------------------------------
The terms and provisions of this Agreement may not be modified or amended,
nor may any provision be waived, except pursuant to a writing signed by the
Company and the holders of at least a majority of the Registrable Shares then
outstanding; provided, however, that no such modification, amendment or waiver
-------- -------
that would treat any holder of Registrable Shares then outstanding in a
non-ratable, discriminatory manner shall be made without the prior written
consent of such holder. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
SECTION 22. COUNTERPARTS; FACSIMILE SIGNATURES.
------------------------------------
This Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. A facsimile
counterpart signature to this Agreement shall be acceptable if the originally
executed counterpart is delivered within a reasonable period thereafter.
SECTION 23. HEADINGS.
--------
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
SECTION 24. GOVERNING LAW.
--------------
This Agreement will be governed by and construed in accordance with the
domestic laws of the State of California, without giving effect to any choice of
law or conflicting provision or rule.
SECTION 25. JURISDICTION AND VENUE.
------------------------
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself or himself and its or his property, to the non-exclusive
jurisdiction of any California court or federal court of the United States of
America sitting in the State of California, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
California court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Should any party
institute any action, suit or other proceeding arising out of or relating to
this Agreement, the prevailing party shall be entitled to receive from the
losing party reasonable attorneys' fees and costs incurred in connection
therewith, along with all costs of defense, investigation, preparation, experts
and collection.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it or he may legally and effectively do so, any objection
that it or he may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to the Agreement in any of the
courts referred to in Section 25(a). Each of the parties hereto irrevocably
-------------
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) The parties further agree that the mailing by certified or
registered mail, return receipt requested, of any process required by any such
court shall constitute valid and lawful service of process against them, without
the necessity for service by any other means provided by law.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
OMNI NUTRACEUTICALS, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
/s/ R. Xxxxxxx Xxxxxx
R. Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
