EXHIBIT 10.25
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as
of October 22, 2003 is by and between Integrated BioPharma, Inc, a Delaware
corporation (the "Company") and Aloe Commodities International, Inc., a Texas
corporation (the "Investor" or "Aloe").
WHEREAS, the Company has entered into a certain Asset
Purchase Agreement dated the date hereof with Aloe (the "Purchase Agreement";
and defined terms used herein but not defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement);
WHEREAS, pursuant to Section 2.1(c) of the Purchase Agreement,
Aloe shall be entitled to certain "piggy-back" registration rights" with respect
to the Share Consideration as more particularly set forth therein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and promises contained herein, the parties agree as follows:
1. Definitions. For the purposes of this Agreement:
(a) the terms "Register," "Registered" and
"Registration" refer to a registration effected by preparing and filing
a registration statement or similar document in compliance with the
Securities Act of 1933, as amended (the "Act"), and the declaration or
ordering of the effectiveness of such registration statement or
document;
(b) the term "Registerable Securities" means the
"BioPharma Common Stock" issued to Holder pursuant to the Purchase
Agreement to which this Agreement is attached as Exhibit B, together
with any Common Stock of BioPharma issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of,
such BioPharma Common Stock; excluding, in all cases, however, any
Registerable Securities sold or transferred by the Holder thereof;
(c) the number of shares of "Registerable Securities
Then Outstanding" shall be determined by the number of shares of Common
Stock of BioPharma outstanding which are, and the number of shares of
Common Stock issuable pursuant to, such Registerable Securities;
(d) the term "Holder" means Aloe Commodities
International, Inc. and does not and shall not include any assignee or
transferee thereof.
2. Piggy-Back Registration. If (but without any obligation to do so)
BioPharma proposes to register (including for this purpose a registration
effected by BioPharma for shareholders other than the Holder) any of its stock
or other securities under the Act in connection with a public offering of such
securities solely for cash (other than a registration relating solely to the
sale of securities to participants in a stock option plan or registration on any
form which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of the
Registerable Securities), BioPharma shall, at such time, promptly give the
Holder written notice of such proposed registration (the "Piggy-Back
Registration Right"). Such Piggy-Back Registration Right may be exercised by
Holder commencing on the one (1) year anniversary of the Closing Date. Such
Piggy-Back Registration Right shall expire on the third (3rd) anniversary of the
Closing Date. Upon the written request of the Holder given within fifteen (15)
days after the giving of such first notice by BioPharma, BioPharma shall,
subject to the provisions of this Agreement, cause to be registered under the
Act all of the Registerable Securities that such Holder has requested to be
registered.
3. Obligations of Holder. It shall be a condition precedent to the
obligations of BioPharma to include any Registerable Securities that the selling
Holder shall:
(a) furnish to BioPharma such information regarding
itself, Registerable Securities held by Holder and the intended method
of disposition of such securities as shall be required to effect the
registration of their Registerable Securities,
(b) furnish to BioPharma the identity of and
compensation to be paid to any proposed underwriter to be employed in
connection therewith on behalf of the Holder as BioPharma, any
underwriter, the Securities and Exchange Commission (the "SEC") or any
other governmental regulatory agency may request, and
(c) enter into and perform Holder's obligations under
an underwriting agreement, in usual and customary form satisfactory to
BioPharma with the managing underwriter of such offering.
4. Expenses of Piggy-Back Registration. At all times, the selling
Holder shall bear the expenses of any underwriting discounts and commissions
attributable to the sale of Holder's Registerable Securities. Holder shall bear
and pay all those expenses attributable to the inclusion of such Holder's
Registerable Securities and any registration, filing or qualification of
Registerable Securities pursuant to this Agreement including (without
limitation) such Holder's incremental portion of all registration, filing and
qualification fees, printers and accounting fees, fees and disbursements of
counsel of BioPharma and the reasonable fees and disbursements of one counsel
for the Holder, but excluding BioPharma's overhead expenses and expenses related
to the use of time by BioPharma's officers, directors and employees in effecting
any such registration.
5. Underwriting Requirements. In connection with any offering involving
an underwriting of shares being issued by BioPharma, BioPharma shall not be
required under this Agreement to include any of the Holder's securities in such
underwriting unless Holder accepts the terms of the underwriting as agreed upon
between BioPharma and the underwriter selected by BioPharma. If the total amount
of securities, including Registerable Securities, requested to be included in
such offering exceeds the amount of securities that the underwriters reasonably
believe compatible with the success of the offering, then BioPharma shall be
required to include in the offering only that number of securities, including
Registerable Securities, which the underwriters believe will not jeopardize the
success of the offering (the securities so included to be apportioned pro rata
among the selling Holder and any other selling shareholders according to the
total amount of securities entitled to be included therein owned by each selling
shareholder and the Holder or in such other portions as shall mutually be agreed
by such Holder and any other selling shareholders).
6. Indemnification. In the event any Registerable Securities are
included in a registration statement under this Agreement to the extent
permitted by law, the Holder will indemnify and hold harmless BioPharma, each of
its directors, each of its officers who have signed the registration statement,
each person, if any, who controls BioPharma within the meaning of the Act, any
underwriter and any other selling shareholder in such registration statement or
any of its directors or officers or any person which controls any such selling
shareholder against any losses, claims, damages or liabilities (joint and
several) to which BioPharma or any such director, officer, controlling person or
underwriter or controlling person, or other selling shareholder, director,
officer or controlling person may become subject, under the Act, the Securities
Exchange Act of 1934 (the "1934 Act") or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"):
(a) any untrue statement or alleged untrue statement
of a material fact with respect to Holder or its Registerable
Securities contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto,
(b) the omission or alleged omission to state therein
a material fact with respect to the Holder or its Registerable
Securities required to be stated therein, or necessary to make the
statements therein not misleading, or
(c) any violation or alleged violation by Holder of
the Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the Act, the 1934 Act or any state
securities law;
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 expressly for use in connection with such registration; and such Holder
will reimburse any legal or other expenses reasonably incurred by BioPharma or
any such director, officer, controlling person, underwriting or controlling
person or other shareholder, officer, director or controlling person in
connection with investigating or defending such loss, claim, damage, liability,
or action; provided, however, that the indemnity agreement contained herein
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
Holder, which consent shall not be unreasonably withheld.
7. Assignment of Registration Rights. The rights to cause BioPharma to
register Registerable Securities pursuant to this Agreement may not be assigned
by the Holder to any transferee or assignee of such securities.
8. "Market Standoff" Agreement. The Holder hereby agrees that Holder
shall not, to the extent requested by BioPharma and an underwriter of common
stock (or other securities) of BioPharma, sell or otherwise transfer or dispose
(other than to donees who agree to be similarly bound) of any Registerable
Securities during the ninety-day period following the effective date of a
registration statement of BioPharma filed under the Act; provided, however, that
all officers and directors of BioPharma and all other persons with registration
rights enter into similar agreements. In order to enforce the foregoing
covenant, BioPharma may impose stop-transfer instructions with respect to the
Registerable Securities of the Holder (and the shares of securities of every
other person subject to the foregoing restriction) until the end of such
ninety-day period.
9. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under this
Agreement shall be made in writing, and shall be effective when mailed, by
registered or certified mail as follows:
Company: Integrated BioPharma, Inc.
225 Long Avenue
Hillside, NJ 07205
Phone: (973) 926-0816
Fax: (973) 926-1735
Attn: Chief Executive Officer
Copy to: St. John & Wayne, LLC
Two Penn Plaza East
Newark, New Jersey 07105
Phone: (973) 491-3600
Fax: (973) 491-3407
Attn: William P. Oberdorf, Esq.
Aloe: Aloe Commodities International, Inc.
2161 Hutton Drive, Suite 126
Carrollton, Texas 75006
Phone: (972) 241-4251
Fax: (972) 241-4376
Attn: L. Scott McKnight, President
Copy to: Vial, Hamilton, Koch & Knox, L.L.P.
1700 Pacific Avenue, Suite 2800
Dallas, Texas 75201
Phone: (214) 712-4400
Fax: (214) 712-4402
Attn: Mark W. Romney, Esq.
Any party may change said address by notice to the other parties in
accordance with the terms hereof.
(b) Press Releases and Announcements. Neither Party shall issue any
press release or public announcement relating to the subject
matter of this Agreement without the prior written consent of
the other Party; provided, however, that either Party may make
any public disclosure it believes in good faith is required by
applicable law, regulation or national exchange rule (in which
case the disclosing Party shall use reasonable efforts to advise
the other Party and provide it with a copy of the proposed
disclosure prior to making such disclosure).
(c) Entire Agreement; Amendment. This Agreement shall constitute the
entire agreement between the Parties with respect to the subject
matter hereof and shall supersede all previous negotiations,
commitments and writings. The Parties hereto may, by mutual
consent, amend or modify and supplement this Agreement in such
manner as may be agreed upon in writing.
(d) Captions. The captions and heading contained herein are solely
for convenience of reference and will not affect the
interpretation of any provision hereof.
(e) Waiver, Discharge, etc. This Agreement may not be released,
discharged or modified except by an instrument in writing signed
on behalf of each of the Parties. The failure of a party to
enforce any provision of this Agreement shall not be deemed a
waiver by such party of any other provision or subsequent breach
of the same or any other obligation hereunder.
(f) Governing Law. This Agreement shall be construed and the rights
of the Parties hereunder shall be governed by laws of the State
of New Jersey. Venue for any dispute regarding this Agreement
shall be in a court of competent jurisdiction in Union County,
New Jersey.
(g) Counterparts and Facsimile Signatures. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one
Agreement. This Agreement may be executed by facsimile
signature.
(h) Severability. Any portion of this Agreement which a court of
competent jurisdiction shall determine to be void or
unenforceable against public policy, or for any other reason,
shall be deemed to be severable from this Agreement and shall
have no effect on the other covenants or provisions in this
Agreement. It is agreed that the court shall be empowered to
reform and construe any provision that would otherwise be void
or unenforceable in a manner that will be valid and enforceable
to the maximum extent permitted by law.
[signature page follows]
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the 22nd day of October, 2003.
Integrated BioPharma, Inc.
By: /s/ E. Gerald Kay
---------------------
Name: E. Gerald Kay
Title: Chief Executive Officer
Aloe Commodities International, Inc.
By: /s/ L. Scott McKnight
-------------------------
Name: L. Scott McKnight
Title: Chairman & CEO