REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made by Xxxxxx
Laboratories, Inc., a Maryland corporation (the "Company"), for the benefit of
the undersigned investor ("Investor", collectively, the "Investors"). This
Agreement shall become effective upon acceptance and closing in respect of the
related subscription for the Senior Secured Convertible Promissory Notes
("Notes") and the shares of common stock underlying the Notes, and the
associated warrants to purchase common stock of the Company ("Warrants"). The
Notes and the Warrants are collectively referred to herein as the "Securities."
The common stock of the Company into which the Notes are convertible and the
common stock issuable upon exercise of the Warrants shall be referred to herein
collectively as the "Underlying Stock."
R E C I T A L S
A. The Investors desire to purchase from the Company, and the Company
desires to issue and sell to the Investors, up to an aggregate of $1,505,000 in
face amount of Notes and associated Warrants as described in the Confidential
Offering Memorandum dated January 6, 1997 as amended June 12, 1997 and all of
the Exhibits thereto (the "Offering Memorandum").
B. As further inducement for the Investors to purchase the Notes and
Warrants from the Company, the Company hereby undertakes to register under the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Securities Act"), the Underlying Stock upon the first to
occur of (i) six months after the Company effects a registration, or (ii) July
10, 1998, on any applicable form, of newly issued common stock at any time while
the Investor holds the Notes, the Warrants, or some or all of the Underlying
Stock. This Agreement sets forth the terms and conditions of such undertaking.
The Company and the Investor agree as follows:
1. Definitions. For purposes of this Agreement:
(a) The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement or statements or similar documents in compliance with the
Securities Act and pursuant to Rule 415 under the Securities Act or any
successor rule providing for offering securities on a continuous basis
("Rule 415"), and the declaration or ordering of effectiveness of such
registration statement or document by the Securities and Exchange
Commission (the "SEC").
(b) The term "Registerable Securities" means (i) the
Underlying Stock, and (ii) any common stock of the Company issued as
(or issuable upon the conversion or exercise of any convertible
security, warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for or
in replacement of any Note, Warrant, or any Underlying Stock, excluding
in all cases, however, any Registerable Securities sold by a holder of
such Registerable Securities in a transaction in which its registration
rights under this Agreement are not assigned.
(c) The Investors and assignees with registration rights
assigned to them pursuant to Section 8 of this Agreement may be
referred to herein collectively as "Holders" of Registerable Securities
and each may be referred to herein as a "Holder" of Registerable
Securities.
2. Registration.
(a) Automatic Registration Right - (i) Subject to the
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provisions of Section 3(a), below and no earlier than six months after
the final closing date (the "Closing Date") of a registered offering of
the common stock of the Company to the general public covered by a
registration statement under the Securities Act ("Public Offering"),
the Company shall use good faith efforts to effect the registration
under the Securities Act of all Registerable Securities; provided,
however, that a Holder of Registerable Securities may inform the
Company in writing that it wishes to exclude all or a portion of its
Registerable Securities from such registration and upon such notice,
such Registerable Securities shall be excluded from such registration.
(i) The holders of a majority in interest of the
Registerable Securities shall have the right to select the
managing underwriters, if any, and to approve the terms of the
underwriting agreement in respect of such registration,
subject to the approval of the Company, which shall not be
unreasonably withheld.
(iii) The Company is obligated to use good faith
efforts to effect only one such registration pursuant to this
Section 2(a) of this Agreement.
(b) Piggyback Registration
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(i) On an unlimited number of occasions until the
third anniversary of the Closing of the Company's offering of
the Notes and Warrants, and subject to the terms of this
Agreement and excluding the Public Offering, in the event the
Company decides to register any of its common stock (either
for its own account or the account of a security holder or
holders, other than in connection with a registration being
effected pursuant to Section 2(a) above) on an SEC form (other
than S-4 or S-8 or successor forms) that would be suitable for
a registration involving Registerable Securities, the Company
will: (x) promptly give each Holder of Registerable Securities
written notice thereof (which shall include a list of
jurisdictions in which the Company intends to qualify such
securities under the applicable Blue Sky or other state
securities laws) and (y) include in such registration (and in
any related qualification under the Blue Sky laws or other
state securities laws), and in any underwriting involved
therein, all the Registerable Securities specified in a
written request delivered to the Company by any Holder of
Registerable Securities within 20 days after delivery of such
written notice from the Company. Nothing contained in this
Section 2(b) shall limit the ability of the Company to
withdraw a Registration Statement it has filed either before
or after effectiveness.
(ii) If the registration of which the Company gives
notice pursuant to Section 2(b)(i) is for a registered public
offering involving an underwriting, the Company shall so
advise the Holders of Registerable Securities as a part of the
written notice given pursuant to Section 2(b)(i). In such
event the right of any Holder of Registerable Securities to
registration shall be conditioned upon such underwriting and
the inclusion of such Holders' Registerable Securities in such
underwriting to the extent provided in this Section 2(b). All
Holders of Registerable Securities proposing to distribute
their securities through such an underwriting shall (together
with the Company and the other holders distributing their
securities through such underwriting) enter into an
underwriting agreement with the Underwriter's representative
for such offering; provided that such holders shall have no
right to participate in the selection of the underwriters for
an offering pursuant to this Section 2(b).
(iii) In the event the Underwriters' representative
advises the Holders of Registerable Securities seeking
registration of Registerable Securities pursuant to this
Section 2(b) in writing that market factors (including,
without limitation, the aggregate number of shares of common
stock requested to be registered, the general condition of the
market, and the status of the persons proposing to sell
securities pursuant to this registration) require a limitation
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of the number of shares to be underwritten, the Underwriter's
representative may exclude some or all Registerable Securities
from such registration and underwriting. In such event, the
Underwriters' representative shall so advise all Holders of
Registerable Securities of the number of shares of
Registerable Securities that may be included in such
registration and underwriting (if any), and the number of
shares of Registerable Securities that may be included in such
registration and underwriting (if any) shall be allocated
among all holders seeking registration in proportion, as
nearly as practicable, to the number of shares proposed to be
included in the registration by the Holder. The number of
shares of Registerable Securities to be included in such
underwriting shall not be reduced unless all other securities
(other than those sold by the Company) are similarly limited
from the underwriting. No Registerable Securities or other
securities excluded from the underwriting by reason of this
Section 2(b) shall be included in such Registration Statement.
(iv) If any Holder of Registerable Securities, or a
holder of other securities entitled (upon request) to be
included in such registration, disapproves of the terms of any
underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company delivered at least 20 days prior
to the effective date of the Registration Statement.
3. Obligations of the Company. When required under this Agreement to
effect the registration of the Registerable Securities, the Company shall, as
expeditiously as reasonably possible, use good faith efforts to:
(a) Prepare and file with the SEC a registration statement or
statements or similar documents (the "Registration Statement") with
respect to all Registerable Securities, other than any Registerable
Securities excluded by Holders of Registerable Securities pursuant to
Section 2(a). The Registration Statement shall be filed not later than
six months after the Closing of the Public Offering and the Company
will use good faith efforts to cause such Registration Statement to
become effective. The Company will use good faith efforts to keep the
Registration Statement effective pursuant to Rule 415 at all times
until the earlier of (i) the third anniversary of the final closing
date of the Company's offering of Notes and Warrants to the Investors,
or (ii) the date on which all Investors can sell any of the
Registerable Securities pursuant to Rule 144 of the Securities Act
without restriction under Rule 144(e) thereof; provided, however, that
if a public offering of common stock by the Company is closed on a date
that is more than two years following the first date each Holder of
Registerable Securities held such Registerable Securities, the Company
shall have no obligation to file a Registration Statement in respect of
such Registerable Securities pursuant to this Agreement, except
pursuant to Section 2(b).
(b) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration
Statement and the Prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement
effective at all times until the earlier of (i) the third anniversary
of the final closing date of the Company's offering of the Notes and
Warrants, or (ii) the date on which all Investors can sell their
respective shares of Registerable Securities pursuant to Rule 144 of
the Securities Act without restriction under Rule 144(e) thereof, and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement.
(c) Furnish promptly to the Holders of Registerable Securities
such numbers of copies of a prospectus, including a preliminary
prospectus, and all amendments and supplements thereto, in conformity
with the requirements of the Securities Act, and such other documents
as the Holders of Registerable Securities may reasonably request in
order to facilitate the disposition of Registerable Securities.
(d) Register and qualify the securities covered by the
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Registration Statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Investors
and prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements and to take such other
actions as may be necessary to maintain such registration and
qualification in effect at all times until the earlier of (i) the third
anniversary of the final closing date of the Company offering of the
Notes and Warrants, or (ii) the date on which all Investors can sell
their respective shares of Registerable Securities pursuant to Rule 144
of the Securities Act with out restriction under Rule 144(e) thereof,
and to take all other actions necessary or advisable to enable the
disposition of such securities in such jurisdictions, provided that the
Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions or to provide
any undertaking or make any change in its charter or bylaws which the
Board of Directors determines to be contrary to the best interest of
the Company and its stockholders.
(e) In the event the holders of a majority in interest of the
Registerable Securities select underwriters for the offering, enter
into and perform its 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. The Investors shall also enter into and
perform their customary obligations under any such agreement including,
without limitation, customary indemnification and contribution
obligations.
(f) Notify the Holders of Registerable Securities, at any time
when a prospectus relating to Registerable Securities covered by the
Registration Statement is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus
included in the 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. The
Company shall promptly amend or supplement the Registration Statement
to correct any such untrue statement or omission.
(g) Notify the Holders of Registerable Securities of the
issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for the
purposes. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible time.
(h) Permit a single firm of counsel designated as selling
stockholders' counsel by the holders of a majority in interest of the
Registerable Securities commencing at a reasonable period of time prior
to their filing, to review the Registration Statement and all
amendments and supplements thereto and shall not file any document in a
form to which such counsel reasonably objects.
(i) Make generally available to its security holders as soon
as practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying with
the provisions of Rule 158 under the Securities Act) covering a
12-month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date of the Registration
Statement.
(j) At the request of the Holders of Registerable Securities,
furnish to the underwriters on the date that Registerable Securities
are delivered to the underwriters for sale in connection with a
registration pursuant to this Agreement (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters, and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as
is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters.
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(k) Make available for inspection by the Holders of
Registerable Securities, any underwriters participating in the offering
pursuant to the registration and the counsel, accountants or
other agents retained by the Investors, all pertinent financial and
other records, corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all
information reasonably requested by the Investors in connection with
the registration.
(l) If the Common Stock is then listed on a national
securities exchange, cause the Registerable Securities to be listed on
such exchange. If the Common Stock is not then listed on a national
securities exchange, use good faith efforts to facilitate the reporting
of the Common Stock on NASDAQ.
(m) Provide a transfer agent and registrar, which may be a
single entity, for the Registerable Securities not later than the
effective date of the Registration Statement.
(n) Take all actions necessary to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registerable Securities to be sold pursuant to
the Registration Statement and to enable such certificates to be in
such denominations and registered in such names as the Holders of such
Registerable Securities or any underwriters may reasonably request.
(o) Take all other reasonable actions necessary to expedite
and facilitate disposition by the Investors of the Registerable
Securities pursuant to the Registration Statement.
4. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to each Investor that such Investor shall furnish to the Company such
information regarding itself, the Registerable Securities held by it, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registerable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.
5. Expenses of Registration. All expenses incurred in connection with
registration, filings or qualifications pursuant to Sections 2 and 3, including
without limitation, all registration, listing, filing and qualification fees,
printers and accounting fees, the fees and disbursements of counsel for the
Company and the reasonable fees and disbursements of one counsel for the
Investors shall be borne by the Company (except in the case of the automatic
registration pursuant to Section 2(a) for which underwriter discounts and
commissions shall not be borne by the Company).
6. Indemnification. In the event any Registerable Securities are
included in a Registration Statement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Investor, the directors, employees, agents and
the officers of the Company, each person who signs the Registration
Statement, and each person, if any, who controls any of them, any
underwriter (as defined in the Securities Act) for such Holders of
Registerable Securities and each person, if any, who controls any such
underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), against any losses,
claims, damages, expenses or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arising out of or
based upon any of the following statements, omissions or violations
(collectively, a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, or
(iii) any violation or alleged violation by the Company of the
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Securities Act, the 1934 Act, any state securities laws or any rule or
regulation promulgated under the Securities Act, the 1934 Act or any
state securities laws; and the Company will reimburse the Investors and
each such underwriter or controlling person, promptly as such expenses
are incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided,
however, that the indemnity agreement contained in this Section 6(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Company, which consent shall not be unreasonably
withheld, nor shall the Company be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance upon and
in conformity with written information furnished expressly for use in
connection with such registration by the Investors or any such
underwriter or controlling person, as the case may be. Such indemnity
shall remain in full force and effect regardless of any investigation
made by or on behalf of the Investors or any such underwriter or
controlling person and shall survive the transfer of the Registerable
Securities by the Holders of Registerable Securities.
(b) To the extent permitted by law, each Holder of
Registerable Securities, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers
who have signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the
1934 Act, any underwriter and any other stockholder selling securities
pursuant to the Registration Statement of any of its directors or
officers or any person who controls such holder or underwriter, against
any losses, claims, damages of liabilities (joint or several) to which
any of them may become subject, under the Securities Act, the 1934 Act
of other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity
with written information furnished by such Holder of Registerable
Securities expressly for use in connection with such registration; and
such Holder of Registerable Securities will reimburse 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, that the indemnity agreement contained in
this Section 6(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is
effected without the consent of such Holder of Registerable Securities,
which consent shall not be unreasonably withheld; and provided,
further, that the Investor shall be liable under this paragraph for
only that amount of losses, claims, damages and liabilities as does not
exceed the proceeds to such Investor as a result of the sale of
Registerable Securities pursuant to such registration.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to
the parties; provided, however, than an indemnified party shall have
the right to retain its own counsel, with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable opinion of
counsel for the indemnifying party, 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 proceeding. The failure to deliver written 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 6 only to the extent
prejudicial to its ability to defend such action, but the omission so
to deliver written 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 6. The indemnification required by this Section
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6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, promptly as such expense, loss,
damage or liability is incurred.
(d) To the extent any indemnification by an indemnifying party
is prohibited or limited by law, the indemnifying party agrees to make
the maximum contribution with respect to any amounts for which it would
otherwise be liable under this Section 6 to the extent permitted by
law, provided that (i) no contribution shall be made under
circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in this Section 6,
(ii) no seller of Registerable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of
Registerable Securities who was not guilty of such fraudulent
misrepresentation, and (iii) contribution by any seller of Registerable
Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registerable Securities.
7. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders of Registerable Securities the benefits of SEC Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit the Investors to sell securities of the Company to
the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934
Act; and
(c) furnish to each Holder of Registerable Securities, so long
as such Holder of Registerable Securities owns any Registerable
Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC
Rule 144, the Securities Act and the 1934 Act, (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 the Investors of any rule or
regulation of the SEC which permits the selling of any such securities
without registration.
8. Assignment of Registration Rights. The rights to have the Company
register Registerable Securities pursuant to this Agreement may be assigned by
the Holders of Registerable Securities, subject to the Holders of such
Registerable Securities and such assignment being in compliance with the terms
of this Agreement and any agreements incorporated herein, and subject to such
assignment being in conformity with federal and state securities law, rules and
regulations, unless exempt therefrom; to transferees or assignees, of such
securities provided such transferee or assignee within a reasonable time after
such transfer, furnishes the Company written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; provided, further, that such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act. The term "Investor" as used in this Agreement shall include
permitted assignees.
9. Miscellaneous.
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(a) Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when
personally delivered or sent by registered mail, return-receipt
request, addressed (i) if to the Company at Xxxxxx Laboratories, Inc.
c/o Xxxxxxxxx Xxxxxx, PhD., Chairman of the Board and Chief Executive
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Office at 00000-X Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, and
(ii) if to an Investor, at the address set forth under his name in the
Subscription Agreement, or at such other address as each such party
shall furnish by notice given in accordance with this Section 9(a).
(b) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such
right to remedy, will not operate as a waiver thereof. No waiver will
be effective unless and until it is in writing and signed by the party
giving the waiver.
(c) The Agreement shall be enforced, governed and construed in
all respects in accordance with the laws of the State of Maryland, as
such laws are applied by Maryland courts to agreements entered into and
to be performed in Maryland by and between residents of Maryland. In
the event that any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such
provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or
enforceability of any other provision hereof.
(d) The Company will not, after the date of this Agreement,
enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of Registerable
Securities in this Agreement or otherwise conflicts with the provisions
hereof.
(e) The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of holders of
at least a majority of shares of the Registerable Securities.
Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof with respect to a matter which relates
exclusively to the rights of Holders of Registerable Securities whose
securities are being sold pursuant to a Registration Statement and
which does not directly or indirectly affect the rights of other
Holders of Registerable Securities may be given by the holders of a
majority of the shares of the Registerable Securities being sold by
such holders, provided that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(f) Subject to Section 8 hereof, this Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns
of each of the parties, including without limitation and without the
need for an express assignment, subsequent holders of Registerable
Securities.
(g) This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts and by
facsimile signatures, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and
the same agreement.
(h) This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company with respect to the securities sold in
connection with the Offering. This Agreement supersedes all prior
agreements and understanding between the parties with respect to such
subject matters.
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Dated this ____ day of __________ 19_____.
INVESTOR: XXXXXX LABORATORIES, INC.
__________________ By: _________________________________________
Signature
__________________ Title: ______________________________________
Printed Name
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