PLACEMENT AGENT REGISTRATION RIGHTS AGREEMENT
THIS PLACEMENT AGENT REGISTRATION RIGHTS AGREEMENT (this "Agreement")
dated __________ 2004 is entered into by and between Marc Pharmaceuticals, Inc.
(the "Company") and Wien Securities Corp. (the "Placement Agent").
W I T N E S S E T H
WHEREAS, the Company is filing a registration statement on Form SB-2
("Current Registration Statement") under the Securities Act of 1933, as amended,
with the Securities and Exchange Commission, File No. 333-113734 relating to the
subscription for and sale of 20,000,000 units of the Issuer (the "Offering") at
$.25 per unit, each unit consisting of one (1) share of common stock of the
Company, $.0001 par value and, one (1) class A warrant to purchase one (1) share
of common stock of the Company at $.50 per share and two (2) class B warrant to
purchase one (1) share of common stock of the Company at $1.00 per share (the
"Unit");
WHEREAS, prospective investors may from time to time purchase a certain
number of Units in the Company in accordance with the terms of the prospectus
dated __________, 2004 as amended and supplemented (the "Prospectus");
WHEREAS, the Placement Agent has been named as placement agent in
connection with the proposed offering of the Units in accordance with the terms
of the placement agreement between the Placement Agent and the Company dated as
of even date herewith (the "Placement Agreement") to sell Units on the date
("Effective Date") the Registration Statement becomes effective with the
Commission until the earlier of the termination of the Offering on December 31,
2004, if not terminated sooner by the Company ("Offering Period"); and
WHEREAS, as partial consideration for its services as placement agent,
the Placement Agent has been issued a warrant to purchase up to 2,000,000 Units
(the "Placement Agent's Warrant"), and, upon exercise of the Placement Agent
Warrant and/or the Future Warrants referred to in the Placement Agent's Warrant
(the Future Warrants collectively with the Placement Agent's Warrant, the
"Warrants"), the Placement Agent will be issued shares of Common Stock;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, in addition to the terms defined elsewhere
in this Agreement, the following terms shall have the following respective
meanings:
"Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act and the
Exchange Act.
"Common Stock" means the common stock, $0.0001 par value per
share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Initial Public Offering" means the initial underwritten
public offering of shares of Common Stock pursuant to the Current Registration
Statement.
"Other Holders" shall mean the holders of securities of the
Company who are entitled, by contract with the Company, to have securities
included in a registration.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
"Registration Statement" means a registration statement filed
by the Company with the Commission for a public offering and sale of securities
of the Company or any Other Holders (other than a registration statement on Form
S-8 or Form S-4, or their successors, or any other form for a similar limited
purpose, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in
Section 4.
"Registrable Shares" means (i) the shares of Common Stock
ultimately issued or issuable after the exercise of the Warrants, (ii) any other
shares of Common Stock issued in respect of such shares (because of stock
splits, stock dividends, reclassifications, recapitalizations, or similar
events); provided, however, that shares of Common Stock which are Registrable
Shares shall cease to be Registrable Shares upon (i) any sale pursuant to a
Registration Statement or Rule 144 under the Securities Act or (ii) any sale in
any manner to a person or entity which, by virtue of Section 13 of this
Agreement, is not entitled to the rights provided by this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Selling Stockholder" means any Stockholder owning Registrable
Shares included in a Registration Statement.
"Stockholders" means the Placement Agent and any persons or
entities to whom the rights granted under this Agreement are transferred by the
Placement Agent, its successors or assigns pursuant to Section 12 hereof.
2. Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
(other than the Current Registration Statement) at any time
after one year from the date hereof until seven (7) years from
the date hereof in compliance with NASD Rule 27-10(f)(2)(H), it
will, prior to such filing, give written notice to all
Stockholders of its intention to do so; provided, that, to the
extent relevant, such notice shall describe any determination
of the managing underwriter pursuant to Section 2(b). Upon the
written request of Stockholder(s) holding Common Stock and/or
Warrants representing at least 25% of the Registrable Shares
then held by all Stockholders given within twenty (20) days
after the Company provides such notice (which request shall
state the intended method of disposition of such Registrable
Shares), but subject to any determination of a managing
underwriter pursuant to Section 2(b) below, the Company shall
use its best efforts to cause all Registrable Shares which the
Company has been requested by such Stockholder or Stockholders
to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in
accordance with the intended methods of distribution specified
in the request of such Stockholder or Stockholders; provided
that the Company shall have the right to postpone or withdraw
any registration effected pursuant to this Section 2 without
obligation to any Stockholder.
(b) If the registration for which the Company gives notice pursuant
to Section 2 is a registered public offering involving an
underwriting, the Company shall so advise the Stockholders as a
part of the written notice given pursuant to Section 2. In such
event, the right of any Stockholder to include its Registrable
Shares in such registration pursuant to Section 2 shall be
conditioned upon such Stockholder's participation in such
underwriting on the terms set forth herein. All Stockholders
proposing to distribute their securities through such
underwriting shall (together with the Company, Other Holders,
and any officers or directors distributing their securities
through such underwriting) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected
for the underwriting by the Company. Notwithstanding any other
provision of this Section 2, if the managing underwriter
determines in writing that the inclusion of all shares
requested to be registered would adversely affect the offering,
the Company may limit the number of Registrable Shares to be
included in the registration and underwriting. The Company
shall so advise all holders of Registrable Shares requesting
registration, and the number of shares that are entitled to be
included in the registration and underwriting shall be
allocated in the following manner. The securities of the
Company held by officers and directors of the Company (other
than Registrable Shares) shall be excluded from such
registration and underwriting to the extent deemed advisable by
the managing
underwriter, and, if a further limitation on the number of
shares is required, the number of shares that may be included
in such registration and underwriting shall be allocated among
all Stockholders and Other Holders requesting registration in
proportion, as nearly as practicable, to the respective number
of Registrable Shares which they held at the time the Company
gives the notice specified in Section 2. If any Stockholder or
Other Holder would thus be entitled to include more securities
than such holder requested to be registered, the excess shall
be allocated among other requesting Stockholders and Other
Holders pro rata in the manner described in the preceding
sentence. If any holder of Registrable Shares or any officer,
director or Other Holder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by
written notice to the Company, and any Registrable Shares or
other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
(c) Notwithstanding the foregoing, the Company shall not be
required, pursuant to this Section 2, to include any
Registrable Shares in a Registration Statement if such
Registrable Shares can then be sold pursuant to Rule 144(k)
under the Securities Act.
3. Registration Procedures.
(a) If and whenever the Company is required by the provisions of
this Agreement to use its best efforts to effect the
registration of any Registrable Shares under the Securities
Act, the Company shall:
(i) file with the Commission a Registration Statement with
respect to such Registrable Shares and use its best
efforts to cause that Registration Statement to become
effective as soon as practicable;
(ii) as expeditiously as practicable prepare and file with
the Commission any amendments and supplements to the
Registration Statement and the prospectus included in
the Registration Statement as may be necessary to
comply with the provisions of the Securities Act
(including the anti-fraud provisions thereof) and to
keep the Registration Statement effective from the
effective date until all such Registrable Shares are
sold.
(iii) as expeditiously as practicable furnish to each Selling
Stockholder such reasonable numbers of copies of the
Prospectus, including any preliminary Prospectus, in
conformity with the requirements of the Securities Act,
and such other documents as such Selling Stockholder
may reasonably request in order to facilitate the
public sale or other disposition of the Registrable
Shares owned by such Selling Stockholder;
(iv) as expeditiously as practicable use its best efforts to
register or qualify the Registrable Shares covered by
the Registration Statement under the securities or Blue
Sky laws of such states as the Selling Stockholders
shall reasonably request, and do any and all other acts
and things that may be necessary or desirable to enable
the Selling Stockholders to consummate the public sale
or other disposition
in such states of the Registrable Shares owned by the
Selling Stockholder; provided, however, that the
Company shall not be required in connection with this
paragraph (iv) to qualify as a foreign corporation or
execute a general consent to service of process in any
jurisdiction;
(v) as expeditiously as practicable, cause all such
Registrable Shares to be listed on each securities
exchange or automated quotation system on which similar
securities issued by the Company are then listed;
(vi) promptly provide a transfer agent and registrar for all
such Registrable Shares not later than the effective
date of such Registration Statement;
(vii) promptly make available for inspection by the Selling
Stockholders, any managing underwriter participating in
any disposition pursuant to such Registration
Statement, and any attorney or accountant or other
agent retained by any such underwriter or selected by
the Selling Stockholders, all financial and other
records, pertinent corporate documents and properties
of the Company and cause the Company's officers,
directors, employees and independent accountants to
supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in
connection with such Registration Statement;
(viii) as expeditiously as practicable, notify each Selling
Stockholder, promptly after it shall receive notice
thereof, of the time when such Registration Statement
has become effective or a supplement to any Prospectus
forming a part of such Registration Statement has been
filed; and
(ix) as expeditiously as practicable following the
effectiveness of such Registration Statement, notify
each Selling Stockholder of any request by the
Commission for the amending or supplementing of such
Registration Statement or Prospectus.
(b) If the Company has delivered a Prospectus to the Selling
Stockholders and after having done so the Prospectus is
amended, the Company shall promptly notify the Selling
Stockholders and, if requested, the Selling Stockholders shall
immediately cease making offers of Registrable Shares and
return all Prospectuses to the Company. The Company shall
promptly provide the Selling Stockholders with revised
Prospectuses and, following receipt of the revised
Prospectuses, the Selling Stockholders shall be free to resume
making offers of the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a
Registration Statement due to pending material developments or
other events that have not yet been publicly disclosed and as
to which the Company believes public disclosure would be
detrimental to the Company, the Company shall notify all
Selling Stockholders to such effect, and, upon receipt of such
notice, each such Selling Stockholder shall immediately
discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Stockholder has
received copies of a supplemented or amended Prospectus or
until such Selling Stockholder is advised in writing by the
Company that the then current
Prospectus may be used and has received copies of any
additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus.
Notwithstanding anything to the contrary herein, the Company
shall not exercise its rights under this Section 3(c) to
suspend sales of Registrable Shares for a period in excess of
sixty (60) days in any 365-day period.
4. Allocation of Expenses. The Company will pay all Registration
Expenses for all registrations under this Agreement. For purposes of this
Section, the term "Registration Expenses" shall mean all expenses incurred by
the Company in complying with this Agreement, including, without limitation, all
registration and filing fees, exchange listing fees, printing expenses,
reasonable fees and expenses of counsel for the Company and the fees and
expenses of one counsel selected by the Selling Stockholders to represent the
Selling Stockholders, state Blue Sky fees and expenses, and the expense of any
special audits incident to or required by any such registration. Registration
Expenses shall not include underwriting discounts, selling commissions and the
fees and expenses of Selling Stockholders' own counsel (other than the counsel
selected to represent all Selling Stockholders), which shall be borne by Selling
Stockholders.
5. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Selling
Stockholder, each underwriter of such Registrable Shares, and
each other person, if any, who controls such seller or
underwriter within the meaning of the Securities Act or the
Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such Selling
Stockholder, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, but only insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final Prospectus contained in the
Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse such
Selling Stockholder, underwriter and each such controlling
person for any legal or any other expenses reasonably incurred
by such Selling Stockholder, underwriter or controlling person
in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus,
or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in
writing, by or on behalf of such Selling Stockholder,
underwriter or controlling person specifically for use in the
preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement,
each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors
and officers and each underwriter (if any) and each person, if
any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against
any losses, claims, damages or liabilities, joint or several,
to which the Company, such directors and officers, underwriter
or controlling person may become subject under the Securities
Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement under
which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus
contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or
are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, if the statement or
omission was made in reliance upon and in conformity with
information relating to such Selling Stockholder furnished in
writing to the Company by or on behalf of such Selling
Stockholder specifically for use in connection with the
preparation of such Registration Statement, prospectus,
amendment or supplement; provided, however, that the
obligations of a Selling Stockholder hereunder shall be limited
to an amount equal to the net proceeds to such Selling
Stockholder of Registrable Shares sold in connection with such
registration (except in case of fraud by such Selling
Stockholder).
(c) Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom; provided, that counsel for
the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party
(whose approval shall not be unreasonably withheld); and,
provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except
to the extent that the Indemnifying Party is adversely affected
by such failure. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the
Indemnifying Party shall pay such expense if representation of
such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or
potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding;
provided further that in no event shall the Indemnifying Party
be required to pay the expenses of more than one law firm per
jurisdiction as counsel for the Indemnified Party. The
Indemnifying Party also shall be responsible for the expenses
of such defense if the Indemnifying Party does not elect to
assume such defense. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no
Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written
consent of the Indemnifying Party, which consent shall not be
unreasonably withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this
Section 5 is due in accordance with its terms but for any
reason is held to be unavailable to an Indemnified Party in
respect to any losses, claims, damages and liabilities referred
to herein, then the Indemnifying Party shall, in lieu of
indemnifying such Indemnified Party, contribute to the amount
paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities to which such party may
be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the
Stockholders on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the
Stockholders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of
material fact related to information supplied by the Company or
the Stockholders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such statement or omission. The Company and the Stockholders
agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph of Section 5,
(a) in no case shall any one Stockholder be liable or
responsible for any amount in excess of the net proceeds
received by such Stockholder from the offering of Registrable
Shares except in case of fraud by such Stockholder and (b) the
Company shall be liable and responsible for any amount in
excess of such proceeds; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made
against another party or parties under this Section, notify
such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom
contribution may be sought shall not relieve such party from
any other obligation it or they may have thereunder or
otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or
claim settled without its prior written consent, which consent
shall not be unreasonably withheld.
6. Other Matters with Respect to Underwritten Offerings. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2, the Company agrees to (a) enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters with respect
to the Registration Statement; and (c) use its best efforts to cause its
independent public accounting firm to issue customary "cold comfort letters" to
the underwriters with respect to the Registration Statement.
7. Information by Holder. Each holder of Registrable Shares included in
any registration shall furnish to the Company such information regarding such
holder and the distribution proposed by such holder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
8. "Stand-Off" Agreement; Confidentiality of Notices. Each Stockholder,
if requested by the Company and the managing underwriter of an underwritten
public offering by the Company of Common Stock (provided that all officers and
directors of the Company and any other selling shareholders shall also agree to
such restriction), shall not sell or otherwise transfer or dispose of any
Registrable Shares or other securities of the Company held by such Stockholder
for a period of one hundred and twenty (120) days following the effective date
of a Registration Statement.
The Company may impose stop-transfer instructions with respect to the
Registrable Shares or other securities subject to the foregoing restriction
until the end of such 180-day period.
Any Stockholder receiving any written notice from the Company regarding
the Company's plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise its rights under this Agreement.
9. Limitations on Subsequent Registration Rights. The Company shall
not, without the prior written consent of Stockholders holding at least a
majority of the Registrable Shares then held by all Stockholders, enter into any
agreement (other than this Agreement) with any holder or prospective holder of
any securities of the Company which grant such holder or prospective holder
rights to include securities of the Company in any Registration Statement,
unless (a) such rights to include securities in a registration initiated by the
Company or by Stockholders are not more favorable than the rights granted to the
Purchasers under Section 2 of this Agreement, and (b) no rights are granted to
initiate a registration, other than registration pursuant to a registration
statement on Form S-3 (or its successor) in which Stockholders are entitled to
include Registrable Shares on a pro rata basis with such holders based on the
number of Registrable Shares owned by Stockholders and such holders.
10. Rule 144 Requirements. After the earliest of (i) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule
144;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements);
and
(c) furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act
and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent
annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company as such holder may
reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such
securities without registration.
11. Termination. All of the Company's obligations to register
Registrable Shares under Section 2 of this Agreement shall terminate upon the
earlier of (i) the term of the Placement Agent's Warrant plus one (1) year or
(ii) when there shall not be any Registrable Shares; provided, however, that the
obligations of the Company and corresponding rights of the Stockholders under
Section 2 hereof shall be inapplicable as to any Stockholder whenever the
provisions of Rule 144(k) are applicable to all Registrable Shares then held by
such Stockholder.
12. Transfer of Rights. Subject to the NASD Conduct Rules, the
Placement Agent shall have the rights to transfer as set forth in Section 9 of
the Placement Agent's Warrant.
13. Miscellaneous.
(a) Governing Law. This Agreement shall be construed in accordance
with the laws of the State of New York applicable to contracts
made and performed within such State, without giving effect to
conflicts of law principles.
(b) Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall
be mailed by certified mail, return receipt requested, or by
Federal Express, Express Mail or similar overnight delivery or
courier service or delivered (in person or by telecopy, telex
or similar telecommunications equipment) against receipt to the
party to whom it is to be given, (i) if to the Company, at its
address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
President, (ii) if to the Placement Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇, or (iii) in
either case, to such other address as the party shall have
furnished in writing in accordance with the provisions of this
Section 13(c). Any notice or other communication given by
certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt
thereof. Any notice given by other means permitted by this
Section 13(c) shall be deemed given at the time of receipt
thereof.
(c) Waiver. No course of dealing and no delay or omission on the
part of the Placement Agent in exercising any right or remedy
shall operate as a waiver thereof or otherwise prejudice the
Placement Agent's rights, powers or remedies. No right, power
or remedy conferred by this Agreement upon the Placement Agent
shall be exclusive of any other right, power or remedy referred
to herein or now or hereafter available at law, in equity, by
statute or otherwise, and all such remedies may be exercised
singly or concurrently.
(d) Amendment. This Agreement may be amended only by a written
instrument executed by the Company and the Placement Agent. Any
amendment shall be endorsed upon this Agreement, and all future
Stockholders shall be bound thereby.
(e) Captions. Paragraph captions contained in this Agreement are
inserted only as a matter of convenience and for reference and
in no way define, limit or extend or describe the scope of this
Agreement or the intent of any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
MARC PHARMACEUTICALS, INC.
By:
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer,
Chief Financial Officer
and President
WIEN SECURITIES CORP.
By:
---------------------------------
Name:
Title:
