Schedule A to Subscription Agreement Dated February 7, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Industries Inc. and Esarbee Investments Limited
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 6, 2003, between
Esarbee Investments Limited, Andell Holdings LLC (collectively the "Investor"),
and Cryopak Industries Inc., a corporation existing under the laws of the
Province of British Columbia (the "Company").
R E C I T A L S
WHEREAS, the Investor has purchased 4,030,000 Shares (as defined
below) and 1,875,000 warrants to acquire Shares from the Company; and
WHEREAS, the Company has agreed, as a condition precedent to the
Investor's purchase of 1,500,000 Shares on the date hereof, to grant the
Investor certain registration rights; and
WHEREAS, the Company and the Investor desire to define the
registration rights of the Investor and certain other persons;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meaning set forth below:
Affiliate: shall have the meaning set forth in Rule 144;
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Holder: shall mean (x) any holder of Registrable Securities
described in clause (A) of the definition of Registrable Securities and in
clause (B) thereof to the extent such clause (B) applies to such clause (A),
regardless of the identity of such Holder, and (y) any holder of any other
Registrable Securities, provided such Holder is the Investor or an Affiliate of
the Investor;
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Person: shall mean an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof;
Public Offering: shall mean a public offering of shares of Common
Stock pursuant to a registration under the Securities Act;
Register, Registered and Registration: shall mean to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the 5,530,000 Shares
described in the recitals to this Agreement and any Shares acquired pursuant to
exercise of the 1,875,000 warrants described in the recitals to this Agreement
by Investor or an Affiliate of the Investor, and (B) any stock of the Company
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, the Shares referred to in clause (A) of this definition;
Registration Expenses: shall mean all expenses incurred by the
Company in compliance with Section 2(a) and (b) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company), but excluding Selling Expenses;
Rule 144: shall mean the Commission's Rule 144 under the Securities
Act or any successor rule or regulation thereto;
Security, Securities: shall have the meaning set forth in Section
2(a)(1) of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended;
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders; and
Shares: shall mean common shares in the capital of the Company.
SECTION 2. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company shall receive from
Holders holding in the aggregate more than 50% of the Registrable
Securities, at any time from
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and after February 28, 2003, a prior written notice of at least 45 days
that the Company effect any registration with respect to all or a part of
the Registrable Securities with a fair market value of no less than
$1,000,000 at the time of such notice, the Company will:
(1) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; provided that such
notice shall not be required to be given to any Affiliate of the Investor
(if provided to the Investor) or to any Holder (other than the Investor)
that is described in clause (y) of the definition of Holder if such Holder
is not known by the Company to be such; and
(2) as soon as practicable, commencing after such 45 day period, use
its diligent best efforts to effect such registration (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested and as
would permit or facilitate the sale and distribution of all or such
portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a written
request received by the Company within 10 business days after written
notice from the Company is given under Section 2(a)(i)(1) above; provided
that the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):
(A) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process
in effecting such registration, qualification or compliance,
unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities
Act or applicable rules or regulations thereunder;
(B) After the Company has effected one (1) such registration
pursuant to this Section 2(a) and such registration has been
declared or ordered effective;
The registration statement filed may, subject to the provisions of Section
2(a)(ii) below, include other securities of the Company which are held by
Persons who, by virtue of agreements with the Company, are entitled to include
their securities in any such registration ("Other Stockholders"). In the event
any Holder requests a registration pursuant to this Section 2(a) in connection
with a distribution of Registrable Securities to its equity owners, the
registration shall provide for the resale by such equity owners, if requested by
such Holder.
The registration rights set forth in this Section 2 may be assigned, in whole or
in part, to any transferee of Registrable Securities (who shall be bound by all
obligations of this Agreement).
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(ii) Underwriting. If a Holder intends to distribute the Registrable
Securities covered by a request by means of an underwriting, then it shall
so advise the Company as a part of the request made pursuant to Section
2(a).
If Other Stockholders request inclusion in such registration, then the Holders
shall offer to include the securities of such Other Stockholders in the
underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section 2. The Holder whose shares are to be
included in such registration and the Company shall (together with all Other
Stockholders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for such underwriting by the Holder
and reasonably acceptable to the Company. Notwithstanding any other provision of
this Section 2(a), if the representative advises the Holder in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the number of shares included in the registration by a Holder and
by any Other Stockholders shall be reduced on a pro rata basis (based on the
number of shares held by such Holder or Other Stockholder), by such minimum
number of shares as is necessary to comply with such request. No Registrable
Securities or any other securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Other Stockholder who has requested inclusion in such registration as
provided above disapproves of the terms of the underwriting, such person may
elect to withdraw therefrom by written notice to the Company, the underwriter
and the Holder. The securities so withdrawn shall also be withdrawn from
registration. If the underwriter has not limited the number of Registrable
Securities or other securities to be underwritten, then the Company and officers
and directors of the Company may include its or their securities for its or
their own account in such registration if the representative so agrees and if
the number of Registrable Securities and other securities which would otherwise
have been included in such registration and underwriting will not thereby be
limited.
(b) Company Registration.
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company will:
(1) promptly give to each of the Holders a written notice (which
notice shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws); and
(2) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by a Holder within fifteen (15) days after receipt of the
written notice from the Company described in clause (i) above,
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except as set forth in Section 2(b)(ii) below. Such written request may
specify all or a part of a Holder's Registrable Securities. In the event
any Holder requests inclusion in a registration pursuant to this Section
2(b) in connection with a distribution of Registrable Securities to its
equity owners, the registration shall provide for the resale by such
equity owners, if requested by such Holder.
(ii) Underwriting. If the registration of which the Company gives
notice is for a registered Public Offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written
notice given pursuant to Section 2(b)(i)(1). In such event, the right of
each of the Holders to registration pursuant to this Section 2(b) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable Securities in the underwriting to
the extent provided herein. The Holders whose shares are to be included in
such registration shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for
underwriting by the Company. Notwithstanding any other provision of this
Section 2(b), if the representative determines that marketing factors
require a limitation on the number of shares to be underwritten, the
representative may (subject to the allocation priority set forth below)
limit the number of Registrable Securities to be included in the
registration and underwriting. The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities
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, directors and Other Stockholders of the Company (other
than Registrable Securities and other than securities held by holders who
by contractual right demanded such registration ("Demanding Holders"))
shall be excluded from such registration and underwriting to the extent
required by such limitation, and, if a limitation on the number of shares
is still required, the number of shares that may be included in the
registration and underwriting by each of the Holders and Demanding Holders
shall be reduced, on a pro rata basis (based on the number of shares held
by such Holder), by such minimum number of shares as is necessary to
comply with such limitation. If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
(c) Expenses of Registration. Selling Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered in relation to the
total number of shares registered. Registration Expenses shall be borne by the
Company.
(d) Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company will:
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(i) keep such registration effective for a period of one hundred
twenty (120) days or until the Holders (or in the case of a distribution
to the partners of such Holder, such partners), as applicable, have
completed the distribution described in the registration statement
relating thereto, whichever first occurs; provided, however, that (A) such
120-day period shall be extended for a period of time equal to the period
during which the Holders or partners, as applicable, refrain from selling
any securities included in such registration as a result of notification
pursuant to Section 2(d)(iii) hereof or at any time when the registration
statement is otherwise not available for the making of sales; and (B) in
the case of any registration of Registrable Securities on Form S-3 which
are intended to be offered on a continuous or delayed basis, such 120-day
period shall be extended until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Securities Act,
permits an offering on a continuous or delayed basis, and provided further
that applicable rules under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a post-effective
amendment which (y) includes any prospectus required by Section 10(a) of
the Securities Act or (z) reflects facts or events representing a material
or fundamental change in the information set forth in the registration
statement, the incorporation by reference of information required to be
included in (y) and (z) above to be contained in periodic reports filed
pursuant to Section 12 or 15(d) of the Exchange Act in the registration
statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time
may reasonably request;
(iii) notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the 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 the light of the
circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of 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 and reasonably
satisfactory to a majority in interest of the Holders participating in
such registration, addressed to the underwriters, if any, and to the
Holders participating in such registration and (2) a letter, dated as of
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 and reasonably satisfactory to a majority in interest of the
Holders participating in such registration, addressed to the underwriters,
if any, and if permitted by applicable accounting standards, to the
Holders participating in such registration.
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(e) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors and partners, and each person controlling
each of the Holders, with respect to each registration which has been
effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based
on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
(in the case of a prospectus, in light of the circumstances under which
they were made) not misleading, or any violation by the Company of the
Securities Act or the Exchange Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of
the Company in connection with any such registration, qualification or
compliance, and will reimburse each of the Holders, each of its officers,
directors and equity owners, and each person controlling each of the
Holders, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission
based upon written information furnished to the Company by the Holders or
underwriter and stated to be specifically for use therein.
(ii) Each of the Holders will, if Registrable Securities held by it
are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each
of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person
who controls the Company or such underwriter, each Other Stockholder and
each of their officers, directors, and equity owners, and each person
controlling such Other Stockholder against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering
circular or other document made by such Holder, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements by such Holder therein (in the
case of a prospectus, in light of the circumstances under which they were
made) not misleading, and will reimburse the Company and such Other
Stockholders, directors, officers, equity owners, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity
with written information furnished to the Company by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder
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shall be limited to an amount equal to the net proceeds to such Holder of
securities sold as contemplated herein.
(iii) Each party entitled to indemnification under this Section 2(e)
(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 any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and
the Indemnified Party may participate in such defense at such party's
expense (unless the Indemnified Party shall have reasonably concluded that
there may be a conflict of interest between the Indemnifying Party and the
Indemnified Party in such action, in which case the fees and expenses of
counsel shall be at the expense of the Indemnifying Party), 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 2 unless the Indemnifying Party is
materially prejudiced thereby. 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 to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the
claim in question as an Indemnifying Party may reasonably request in
writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(e) is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense 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, liability, claim,
damage or expense, as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party
shall be determined by reference to, among other things, whether the
untrue (or alleged untrue) statement of a material fact or the omission
(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.
(v) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten Public Offering
contemplated by this Agreement are in
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conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the Company and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage arising out of a statement made in or omitted from a
preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration
statement in question becomes effective or the amended prospectus filed
with the Commission pursuant to Commission Rule 424(b) (the "Final
Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Holder if a copy of the Final Prospectus
was furnished to the underwriter or Holder, as the case may be, and was
not furnished to the person asserting the loss, liability, claim or damage
at or prior to the time such action is required by the Securities Act.
(f) Information by the Holders.
(i) Each of the Holders holding securities 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 reasonably required in
connection with any registration, qualification or compliance referred to
in this Section 2.
(ii) In the event that, either immediately prior to or subsequent to
the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its equity owners, such Holder shall
so advise the Company and provide such information as shall be necessary
to permit an amendment to such registration statement to provide
information with respect to such equity owners, as selling
securityholders. Promptly following receipt of such information, the
Company shall file an appropriate amendment to such registration statement
reflecting the information so provided. Any incremental expense to the
Company resulting from such amendment shall be borne by such Holder.
(g) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144, at all times from and after ninety
(90) days following the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to
the general public;
(ii) 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
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(iii) so long as the Holder owns any Registrable Securities, furnish
to the Holder upon request, 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, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed as the Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such
securities without registration.
(h) Termination. The registration rights set forth in this Section 2
shall not be available to any Holder if, (i) in the written opinion of counsel
to the Company, all of the Registrable Securities then owned by such Holder
could be sold in any 90-day period pursuant to Rule 144 or (ii) all of the
Registrable Securities held by such Holder have been sold in a registration
pursuant to the Securities Act or pursuant to Rule 144.
(i) Canada Registration. In the event that the Company shall proceed
to any offering of its shares in Canada in lieu of or in conjunction with a
registration in the United States, the registration rights hereby granted by the
Company and all of the other provisions hereof (with the exception of paragraph
2(h) shall apply to the Canadian offering, mutatis mutandis, and the Company
shall file a prospectus under the laws of the provinces and territories of
Canada in which such offering is to occur and receive receipts therefor and take
all other reasonable action as is necessary to ensure that the Holders will be
permitted to legally sell the Registrable Securities to the public in Canada
without resale restrictions, other than such restrictions as are applicable to
the Company and from which there exist no statutory exceptions under applicable
Canadian securities laws. The Company hereby agrees and undertakes in favour of
the Investor to take all such reasonable action as is necessary to remain a
reporting issuer in good standing in any of the provinces or territories in
which it is or may be a reporting issuer from time to time."
SECTION 3. MISCELLANEOUS
(a) Foreign Private Issuer Status. Notwithstanding anything to the
contrary contained herein, The Company shall not be required to take any action
or file any form with the Commission that would subject it to greater
requirements under the Securities Act and/or the Exchange Act than it currently
is subject to because of its status as a "foreign private issuer" as that term
is defined in the foregoing Acts.
(b) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such Province.
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(d) Section Headings. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(e) Notices.
(i) All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or
by registered or certified mail, postage prepaid:
(1) if to the Company, at: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: The
President, or at such other address or facsimile number as it may have
furnished to the Investor in writing, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
(2) if to the Investor, ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
(facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, or at such
other address or facsimile number as may have been furnished to the
Company in writing.
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(f) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Holders
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Holders may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Holders in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(h) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Holders holding a majority of the then
outstanding Registrable Securities.
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(i) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(k) Language. The parties hereto confirm their express wish that
this Agreement and all documents and agreements directly or indirectly relating
thereto be drawn up in the English language.
(l) Les parties reconnaissent leur volonte expresse que la presente
convention ainsi que tous les documents et contrats s'y rattachant directement
ou indirectement soient rediges en anglais.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
ESARBEE INVESTMENTS LIMITED
By:_____________________________________
Name:
Title:
ANDELL HOLDINGS LLC
By:_____________________________________
Name:
Title:
CRYOPAK INDUSTRIES INC.
By:_____________________________________
Name:
Title: