EX-10.2



 







Exhibit 10.2




EXECUTION COPY




REGISTRATION RIGHTS AGREEMENT




          This Registration Rights Agreement (this “Agreement”) is made and entered into as of
August 6, 2007, among Marshall Edwards, Inc., a Delaware corporation (the “Company”), and
the purchasers signatory hereto (each such purchaser is a “Purchaser” and, collectively,
the “Purchasers”).




          This Agreement is made pursuant to the Securities Subscription Agreement, dated as of August
1, 2007, among the Company and the Purchasers (the “Purchase Agreement”).




          The Company and the Purchasers hereby agree as follows:




     1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the following meanings:




     “Advice” shall have the meaning set forth in Section 7(c).




     “Common Stock” means the common stock of the Company, par value $0.00000002,
and any other class of securities into which such shares may hereafter have been
reclassified or changed.




     “Effectiveness Date” means the 90th calendar day following the Closing,
extended by a period of 30 additional days if the Commission reviews the Registration
Statement, provided, however, in the event that the Company is notified by
the Commission that the Registration Statement will not be reviewed or is no longer subject
to further review and comments, the Effectiveness Date as to the Registration Statement
shall be the tenth Trading Day following the date on which the Company is so notified if
such date precedes the dates required above.




     “Effectiveness Period” shall have the meaning set forth in Section 2(a).




     “Filing Date” means the 5th calendar day following the filing of the Company’s
Form 10-K for the year ended June 30, 2007.




     “Holder” or “Holders” means the holder or holders, as the case may be,
from time to time of Registrable Securities.




     “Indemnified Party” shall have the meaning set forth in Section 6(c).




     “Indemnifying Party” shall have the meaning set forth in Section 6(c).




     “Liquidated Damages” shall have the meaning set forth in Section 2(b).




     “Losses” shall have the meaning set forth in Section 6(a).




     “Permitted Shares” means that number of (i) Shares, (ii) Warrant Shares and
(iii) Common Stock issued or issuable upon any stock split, dividend or other distribution,



 









 







recapitalization or similar event with respect to the foregoing that the Commission
permits the Company to register for resale.




     “Plan of Distribution” shall have the meaning set forth in Section 2(a).




     “Proceeding” means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or threatened.




     “Prospectus” means the prospectus included in the Registration Statement
(including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such Prospectus.




     “Registrable Securities” means all of the Permitted Shares until, in the case
of any such security, (A) the earliest of (1) its effective registration under the
Securities Act and resale in accordance with the Registration Statement covering it, (2)
expiration of the holding period that would be applicable thereto under Rule 144(k) to a
sale by a non-Affiliate of the Company or (3) its sale to the public pursuant to Rule 144
(or any similar provision then in force, but not Rule 144A) under the Securities Act, and
(B) as a result of the event or circumstance described in any of the foregoing clauses
(A)(1) through (3), the legend with respect to transfer restrictions therein is removed or
removable in accordance with the terms of such legend.




     “Registration Statement” means the registration statement required to be filed
hereunder, including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by reference in such
registration statement.




     “Registration Default” shall have the meaning set forth in Section 2(b).




     “Registration Default Date” shall have the meaning set forth in Section 2(b).




     “Rule 415” means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.




     “Rule 424” means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same purpose and
effect as such Rule.



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     “Selling Security Holder Questionnaire” shall mean the Questionnaire attached
to this form as Annex B.




     “Shares” shall mean the Common Stock issued pursuant to the Purchase Agreement.




     “Warrants” shall mean the warrants to purchase Common Stock issued pursuant to
the Purchase Agreement.




     “Warrant Shares” shall mean the Common Stock issuable upon exercise of the
Warrants.



     2. Shelf Registration.




     (a) On or prior to the Filing Date, the Company shall prepare and file with the
Commission the Registration Statement covering the resale of the Registrable Securities for
an offering to be made on a continuous basis pursuant to Rule 415. The Registration
Statement shall be on Form S-3 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form S-3, in which case such registration shall be on
another appropriate form in accordance herewith) and shall contain (unless otherwise
directed by the Holders) substantially the “Plan of Distribution” attached hereto as
Annex A. Not less than three business days prior to filing of the Registration
Statement, the Company shall provide each Holder with a copy of the Registration Statement
proposed to be filed and shall consider all appropriate comments that are timely provided by
such Holder with respect to the Registration Statement. Subject to the terms of this
Agreement, the Company shall use its commercially reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event prior to the Effectiveness Date, and
shall use its commercially reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act until all Registrable Securities covered by
the Registration Statement have been sold or may be sold without volume restrictions
pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and
the affected Holders (the “Effectiveness Period”). The Company shall notify the
Holders via facsimile or electronic mail of the effectiveness of the Registration Statement
within three Trading Days of the Company telephonically confirming effectiveness with the
Commission. The Company shall, by 9:30 AM Eastern Time on the Trading Day that is three
Trading Days after the Effective Date (as defined in the Purchase Agreement), file a Form
424(b)(5) with the Commission. Each Holder agrees to furnish to the Company a completed
Selling Security Holder Questionnaire simultaneously with the execution of this Agreement.




     (b) If (i) the Registration Statement is not filed on or prior to the Filing Date, or
(ii) the Registration Statement covering the Registrable Shares ceases to be effective or
usable at any time during the Effectiveness Period (without being succeeded on the same date
immediately by a post-effective amendment or supplement to the Registration Statement that
cures such failure and that is itself, in the case of a post-effective



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amendment, declared effective within ten Trading Days of filing with the Commission) or
the Holders are not permitted to utilize the Prospectus therein to resell such Registrable
Securities for twenty consecutive Trading Days or in any individual case an aggregate of
thirty Trading Days during any twelve-month period (which need not be consecutive Trading
Days) (any of the foregoing being a “Registration Default” and for purposes of
clause (i) the date on which such Registration Default occurs, or for purposes of clause
(ii) the date on which such twenty or thirty Trading Day period, as applicable, is exceeded,
each being a “Registration Default Date”) then, subject to Section 3, the Company
shall pay to each Holder an amount in cash, as liquidated damages and not a penalty
(“Liquidated Damages”) equal to 1% of the aggregate purchase price paid by such
Holder pursuant to the Purchase Agreement for any Registrable Shares then held by such
Holder per month of time between the Registration Default Date and the date such
Registration Default is cured, prorated for any period less than one month; provided
that such Liquidated Damages paid to each Holder may not exceed more than 10% of the
purchase price paid by such Holder for its Registrable Securities. The foregoing represents
the sole monetary remedy to any Holder in connection with any Registration Default. In no
event shall the Company be required to pay Liquidated Damages in excess of the applicable
amount set forth above, regardless of whether one or multiple Registration Defaults exists.
The Company shall pay the Holders any Liquidated Damages accrued for the first month after a
Registration Default Date within seven calendar days after the end of such month, and any
Liquidated Damages accrued for any subsequent month within seven calendar days after the end
of such month. If the Company fails to pay any Liquidated Damages pursuant to this Section
in full within seven days after the date payable, the Company will pay interest thereon at a
rate of 8% per annum (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such liquidated damages are due
until such amounts, plus all such interest thereon, are paid in full. A Registration
Default under clause (i) above shall be cured on the date that the Registration Statement is
filed with the SEC and a Registration Default under clause (ii) above shall be cured on the
date that the Registration Statement covering the Permitted Shares is declared effective by
the SEC or is otherwise usable. Notwithstanding the foregoing, no Liquidated Damages shall
accumulate as to any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the Effectiveness Period.
Further, each Holder acknowledges that it is aware of the possibility that the Commission
may not permit the registration of some or all (i) Shares, (ii) Warrant Shares or (iii)
Common Stock issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing, at no fault of the Company
in which case, no Liquidated Damages will accumulate as to such securities other than the
Permitted Shares.




     (c) If the Commission does not permit the registration of some or all (i) Shares, (ii)
Warrant Shares or (iii) Common Stock issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event with respect to the foregoing, the
Permitted Shares shall include, and the Company shall cover in the Registration Statement,
securities in the following order: (x) first, such amount of Shares as the
Commission shall permit, with the Holders thereof participating in such registration on a
pro rata basis in accordance with the percentage of Shares purchased by



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each such Holder pursuant to the Purchase Agreement; and (y) second, such
amount of Warrant Shares as the Commission shall permit, with the Holders thereof
participating in such registration on a pro rata basis in accordance with the percentage of
Warrants issued to each such Holder pursuant to the Purchase Agreement.



     3. Registration Procedures.



          In connection with the Company’s registration obligations hereunder, the Company shall:





     (a) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep the Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement (subject to
the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule
424; (iii) respond as promptly as reasonably possible to any comments received from the
Commission with respect to the Registration Statement or any amendment thereto; and (iv)
comply in all material respects with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities covered by the
Registration Statement during the applicable period in accordance (subject to the terms of
this Agreement) with the intended methods of disposition by the Holders thereof set forth in
the Registration Statement as so amended or in such Prospectus as so supplemented.




     (b) Notify the Holders of Registrable Securities to be sold (which notice shall,
pursuant to clauses (ii) through (v) hereof, be accompanied by an instruction to suspend the
use of the Prospectus until the requisite changes have been made) as promptly as reasonably
possible and (if requested by any such Person) confirm such notice in writing no later than
one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is filed; and (B) with respect to the
Registration Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission or any other Federal or state governmental authority
for amendments or supplements to the Registration Statement or Prospectus or for additional
information; (iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Registration
Statement covering any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that
makes the financial statements included in the Registration Statement ineligible for
inclusion therein or any statement made in the Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to the Registration Statement, Prospectus or
other documents so that, in the case of the Registration Statement or the Prospectus, as the
case



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may be, it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading; provided
that any and all of such information provided pursuant to clause (v) above shall remain
confidential to each Holder until such information otherwise becomes public, unless
disclosure by a Holder is required by law; provide, further, notwithstanding
each Holder’s agreement to keep such information confidential, the Holders make no
acknowledgement that any such information is material, non-public information.




     (c) Use its commercially reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction, at the
earliest practicable moment.




     (d) Furnish to each Holder, upon written request of such Holder, without charge, at
least one conformed copy of the Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated
therein by reference to the extent requested by such Person, and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated by
reference).




     (e) Promptly deliver to each Holder, upon written request of such Holder, without
charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus)
and each amendment or supplement thereto as such Persons may reasonably request in
connection with resales by the Holder of Registrable Securities. Subject to the terms of
this Agreement, the Company hereby consents to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto, except after the giving of any notice pursuant to Section 3(b).




     (f) Prior to any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders in
connection with the registration or qualification (or exemption from the Registration or
qualification) of such Registrable Securities for the resale by the Holder under the
securities or Blue Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing, to keep each registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other acts or
things reasonably necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by each Registration Statement; provided that the Company
shall not be required to qualify generally to do business in any jurisdiction where it is
not then so qualified or subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such
jurisdiction.



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     (g) If requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to the Registration Statement, which certificates shall be free, to
the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable
such Registrable Securities to be in such denominations and registered in such names as any
such Holders may request.




     (h) Upon the occurrence of any event contemplated by this Section 3, as promptly as
reasonably possible under the circumstances taking into account the Company’s good faith
assessment of any adverse consequences to the Company and its shareholders of the premature
disclosure of such event, prepare a supplement or amendment, including a post-effective
amendment, to the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, neither the Registration Statement nor
such Prospectus will contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. If the Company
notifies the Holders in accordance with clauses (ii) through (v) of Section 3(b) above to
suspend the use of any Prospectus until the requisite changes to such Prospectus have been
made, then the Holders shall suspend use of such Prospectus. The Company will use its
commercially reasonable best efforts to ensure that the use of the Prospectus may be resumed
as promptly as is practicable. The Company will use its commercially reasonable best
efforts to ensure that the use of the Prospectus may be resumed as promptly as is
practicable. The Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement and Prospectus for a period not to
exceed 90 days (which need not be consecutive days) in any 365 day period.




     (i) Comply with all applicable rules and regulations of the Commission and the Trading
Market.




     (j) The Company may require each selling Holder to furnish to the Company (i) a
certified statement as to the number of shares of Common Stock beneficially owned by such
Holder, (ii) if required by the Commission, the person thereof that has voting and
dispositive control over the Shares and (iii) any further information required by the
Commission. During any periods that the Company is unable to meet its obligations hereunder
with respect to the registration of the Registrable Securities solely because any Holder
fails to furnish such information within three Trading Days of the Company’s request, any
Liquidated Damages that are accruing at such time as to such Holder only shall be tolled and
any Registration Default that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is delivered to the Company.



     4. Holder’s Obligations. Each selling Holder agrees, by acquisition of the Registrable
Securities, that no selling Holder shall be entitled to sell any of such Registrable Securities
pursuant to the Registration Statement or to receive the Prospectus relating thereto, or to receive
Liquidated Damages, if any, of the type described in Section 2(b) in respect of the



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Registrable Securities, unless the selling Holder has previously furnished the Company at
least five Trading Days prior to the selling Holder’s proposed sale with a Selling Security Holder
Questionnaire as required by Section 2(a) (including the information required to be included in
such Selling Security Holder Questionnaire). Any sale of any Registrable Securities by any selling
Holder shall constitute a representation and warranty by the selling Holder that the information
relating to the selling Holder and its plan of distribution is as set forth in the Prospectus
delivered by the selling Holder in connection with such disposition, that such Prospectus does not
as of the time of such sale contain any untrue statement of material fact provided by the selling
Holder and that the Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by the selling Holder necessary to make the statements in the Prospectus,
in light of the circumstances in which they are made, not misleading.



     5. Registration Expenses. All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect to filings required
to be made with the Trading Market on which the Common Stock are then listed for trading and (B) in
compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in
writing (including, without limitation, fees and disbursements of counsel for the Company in
connection with Blue Sky qualifications or exemptions of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment under the laws of
such jurisdictions as requested by the Holders); (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of printing
prospectuses for a Holder if the printing of prospectuses is reasonably requested by such Holder);
(iii) messenger, telephone and delivery expenses related to the Company’s obligations hereunder;
(iv) fees and disbursements of counsel for the Company; (v) Securities Act liability insurance, if
the Company so desires such insurance; and (vi) fees and expenses of all other Persons retained by
the Company in connection with the consummation of the transactions contemplated by this Agreement.
In addition, the Company shall be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities exchange as required
hereunder, including all fees and expenses of the depositary. In no event shall the Company be
responsible for any broker or similar commissions or, except to the extent provided for in the
Transaction Documents including Section 5.1 of the Purchase Agreement, any legal fees or other
costs of the Holders.



     6. Indemnification.




     (a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the officers,
directors, members, partners, agents, brokers (including brokers who offer and sell
Registrable Securities as principal as a result of a pledge or any failure to perform under
a margin call of Ordinary Shares), investment advisors and employees of each of



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them, each Person who controls any such Holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers, directors, members,
partners, agents and employees of each such controlling Person, to the fullest extent
permitted by applicable law, from and against any and all losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs (including, without limitation,
reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred,
arising out of or relating to (i) any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out of or
relating to any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in light of the circumstances under which they were
made) not misleading, except to the extent, but only to the extent, that (a) such untrue
statements or omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities as set forth in Annex A hereto or any changes to Annex
A hereto that are expressly approved in writing by such Holder expressly for, use in the
Registration Statement, such Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (b) in the case of an occurrence of an event of the type specified in
Section 3(b)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after
the Company has notified such Holder in writing that the Prospectus is outdated or defective
and prior to the receipt by such Holder of the Advice contemplated in Section 7(c); (ii) any
violation by the Company of the Securities Act, or any other law, including, without
limitation, any state securities laws, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities pursuant to the Registration Statement; or (iii)
any material violation of this Agreement by the Company, its agents or representatives. The
Company shall notify the Holders promptly of the institution, threat or assertion of any
Proceeding arising from or in connection with the transactions contemplated by this
Agreement of which the Company is aware.




     (b) Indemnification by Holders. Each Holder shall, notwithstanding any
termination of this Agreement, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to the fullest
extent permitted by applicable law, from and against all Losses as to the extent arising
solely out of or based solely upon (i) such Holder’s failure to comply with the prospectus
delivery requirements of the Securities Act; or (ii) upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any Prospectus, or any
form of prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein not
misleading to the extent that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to such Holder or
such Holder’s proposed method of distribution of



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Registrable Securities as set forth in Annex A hereto or any changes to
Annex A hereto that are expressly approved in writing by such Holder expressly for
use in the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence of an event of the type
specified in Section 3(b)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the Prospectus is
outdated or defective and prior to the receipt by such Holder of the Advice contemplated in
Section 7(c). In no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the net proceeds received by such Holder upon the sale of
the Registrable Securities covered by such Registration Statement giving rise to such
indemnification obligation.




     (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought
or asserted against any Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have
the right to assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not subject to
appeal or further review) that such failure shall have prejudiced the Indemnifying Party.




     An Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the
Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying
Party shall have failed promptly to assume the defense of such Proceeding; (3) the
Indemnifying Party shall have failed promptly to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding; or (4) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall reasonably believe that a material
conflict of interest is likely to exist if the same counsel were to represent such
Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the reasonable fees and expenses of one separate counsel
shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be
liable for any settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending Proceeding in
respect of which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.




     The Indemnified Party shall promptly reimburse the Indemnifying Party for that portion
of such fees and expenses applicable to such actions for which such Indemnified



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Party is not entitled to indemnification hereunder, determined based upon the relative
faults of the parties.




     (d) Contribution. If the indemnification under Section 6(a) or 6(b) is
unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless
for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable
by such Indemnified Party, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified Party shall
be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be deemed to include,
subject to the limitations set forth in Section 6(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection with any Proceeding to the
extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in accordance with
its terms.




     The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations referred to in
the immediately preceding paragraph. Notwithstanding the provisions of this Section 6(d), no
Holder shall be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, except in the case of fraud by such Holder.




     The indemnity and contribution agreements contained in this Section are in addition to
any liability that the Indemnifying Parties may have to the Indemnified Parties.



     7. Miscellaneous.




     (a) Remedies. Subject to Section 2(b), (i) in the event of a breach by the
Company or by a Holder, of any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by
law and under this Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement and (ii) the Company and each Holder agree
that monetary damages would not provide adequate compensation for any losses incurred by
reason of a breach by it of any of the provisions of this Agreement and



11









 







hereby further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be adequate




     (b) Compliance. Each Holder covenants and agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration Statement.




     (c) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Section 3(b)(ii) through Section 3(c)(v), such Holder
will forthwith discontinue disposition of such Registrable Securities under the Registration
Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the “Advice”) by
the Company that the use of the applicable Prospectus may be resumed, and, in either case,
has received copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus or Registration Statement. The
Company agrees and acknowledges that any periods during which the Holder is required to
discontinue the disposition of the Registrable Securities hereunder shall be subject to the
provisions of Section 2(b). The Company will use its commercially reasonable best efforts
to ensure that the use of the Prospectus may be resumed as promptly as it practicable.




     (d) Piggy-Back Registrations. If at any time during the Effectiveness Period
there is not an effective Registration Statement covering all of the Registrable Securities
and the Company shall determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of others under the
Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity or business
or equity securities issuable in connection with the stock option or other employee benefit
plans, then the Company shall send to each Holder a written notice of such determination
and, if within fifteen days after the date of such notice, any such Holder shall so request
in writing, the Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered; provided,
however, that, the Company shall not be required to register any Registrable
Securities pursuant to this Section 7(d) that are eligible for resale pursuant to Rule
144(k) promulgated under the Securities Act or that are the subject of a then effective
Registration Statement.




     (e) Amendments and Waivers. 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 same shall be
in writing and signed by the Company and each Holder of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the rights of Holders
and that does not directly or indirectly affect the rights of other Holders may be given by
Holders of all of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be



12









 







amended, modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.




     (f) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be delivered as set forth in the
Purchase Agreement.




     (g) Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and permitted assigns of each of the parties and shall inure
to the benefit of each Holder. The Company may not assign its rights or obligations
hereunder without the prior written consent of all of the Holders of the then outstanding
Registrable Securities. Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Purchase Agreement.




     (h) No Inconsistent Agreements. Neither the Company nor any of its
subsidiaries has entered, as of the date hereof, nor shall the Company or any of its
subsidiaries, on or after the date of this Agreement, enter into any agreement with respect
to its securities, that would have the effect of impairing the rights granted to the Holders
in this Agreement.




     (i) Execution and Counterparts. This Agreement may be executed in any number
of counterparts, 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. In the event that any
signature is delivered by facsimile transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such signature is executed)
the same with the same force and effect as if such facsimile signature were the original
thereof.




     (j) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined with the provisions of
the Purchase Agreement.




     (k) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.




     (l) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their commercially reasonable efforts to find
and employ an alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.




     (m) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.



13









 






     (n) Independent Nature of Holders’ Obligations and Rights. The obligations of
each Holder hereunder are several and not joint with the obligations of any other Holder
hereunder, and no Holder shall be responsible in any way for the performance of the
obligations of any other Holder hereunder. Nothing contained herein or in any other
agreement or document delivered at any closing, and no action taken by any Holder pursuant
hereto or thereto, shall be deemed to constitute the Holders as a partnership, an
association, a joint venture or any other kind of entity, or create a presumption that the
Holders are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled to protect and
enforce its rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Holder to be joined as an additional party in
any proceeding for such purpose.



****************************




14









 








          IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.




	 	 	 	 	 
	 	MARSHALL EDWARDS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE OF HOLDERS FOLLOWS]




15









 










[SIGNATURE PAGE OF HOLDER TO

REGISTRATION RIGHTS AGREEMENT]



IN WITNESS WHEREOF, the undersigned have caused this Registration Rights Agreement to be duly
executed by their respective authorized signatories as of the date first written above.




	 	 	 
	Name of Holder:
	 	 
	 

	Signature of Authorized Signatory of Holder:
	 	 
	 

	 	 
	Name of Authorized Signatory:
	 	 
	 

	Title of Authorized Signatory:
	 	 
	 






[SIGNATURE PAGES CONTINUE]





16









 





Annex A




Plan of Distribution



     The selling security holders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares of common stock
being offered under this prospectus on any stock exchange, market or trading facility on which
shares of our common stock are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling security holders may use any one or more of the following methods
when disposing of shares:




	 	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers;
	 
	 	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the transaction;
	 
	 	•	 	purchases by a broker-dealer as principal and resales by the broker-dealer for its
account;
	 
	 	•	 	an exchange distribution in accordance with the rules of the applicable exchange;
	 
	 	•	 	privately negotiated transactions;
	 
	 	•	 	to cover short sales made after the date that the registration statement of which
this prospectus is a part is declared effective by the Commission;
	 
	 	•	 	broker-dealers may agree with the selling security holders to sell a specified number
of such shares at a stipulated price per share;
	 
	 	•	 	a combination of any of these methods of sale; and
	 
	 	•	 	any other method permitted pursuant to applicable law.





     The shares may also be sold under Rule 144 under the Securities Act of 1933, as amended
(“Securities Act”), if available, rather than under this prospectus. The selling security holders
have the sole and absolute discretion not to accept any purchase offer or make any sale of shares
if they deem the purchase price to be unsatisfactory at any particular time.



     The selling security holders may pledge their shares to their brokers under the margin
provisions of customer agreements. If a selling security holder defaults on a margin loan, the
broker may, from time to time, offer and sell the pledged shares.



     Broker-dealers engaged by the selling security holders may arrange for other broker-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from the selling security
holders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in
amounts to be negotiated, which commissions as to a particular broker or dealer may be in excess of
customary commissions to the extent permitted by applicable law.



 









 





     If sales of shares offered under this prospectus are made to broker-dealers as principals, we
would be required to file a post-effective amendment to the registration statement of which this
prospectus is a part. In the post-effective amendment, we would be required to disclose the names
of any participating broker-dealers and the compensation arrangements relating to such sales.



     The selling security holders and any broker-dealers or agents that are involved in selling the
shares offered under this prospectus may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with these sales. Commissions received by these broker-dealers or
agents and any profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. Any broker-dealers or agents that
are deemed to be underwriters may not sell shares offered under this prospectus unless and until we
set forth the names of the underwriters and the material details of their underwriting arrangements
in a supplement to this prospectus or, if required, in a replacement prospectus included in a
post-effective amendment to the registration statement of which this prospectus is a part.



     The selling security holders and any other persons participating in the sale or distribution
of the shares offered under this prospectus will be subject to applicable provisions of the
Exchange Act, and the rules and regulations under that act, including Regulation M. These
provisions may restrict activities of, and limit the timing of purchases and sales of any of the
shares by, the selling security holders or any other person. Furthermore, under Regulation M,
persons engaged in a distribution of securities are prohibited from simultaneously engaging in
market making and other activities with respect to those securities for a specified period of time
prior to the commencement of such distributions, subject to specified exceptions or exemptions.
All of these limitations may affect the marketability of the shares.



     If any of the shares of common stock offered for sale pursuant to this prospectus are
transferred other than pursuant to a sale under this prospectus, then subsequent holders could not
use this prospectus until a post-effective amendment or prospectus supplement is filed, naming such
holders. We offer no assurance as to whether any of the selling security holders will sell all or
any portion of the shares offered under this prospectus.



     We have agreed to pay all fees and expenses we incur incident to the registration of the
shares being offered under this prospectus. However, each selling security holder and purchaser is
responsible for paying any discounts, commissions and similar selling expenses they incur.



     We and the selling security holders have agreed to indemnify one another against certain
losses, damages and liabilities arising in connection with this prospectus, including liabilities
under the Securities Act.



 









 





Annex B




Marshall Edwards, Inc.




Selling Security Holder Notice and Questionnaire




     The undersigned beneficial owner of common stock, par value $0.00000002 (the “Common
Stock”), of Marshall Edwards, Inc., a Delaware corporation (the “Company”), (the
“Registrable Securities”) understands that the Company has filed or intends to file with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-3 (the “Registration Statement”) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), of the Registrable Securities,
in accordance with the terms of the Registration Rights Agreement, dated as of August ___, 2007
(the “Registration Rights Agreement”), among the Company and the Purchasers named therein.
A copy of the Registration Rights Agreement is available from the Company upon request at the
address set forth below. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.



     Certain legal consequences arise from being named as a selling security holder in the
Registration Statement and the related prospectus. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling security holder in the Registration
Statement and the related prospectus.



NOTICE




     The undersigned beneficial owner (the “Selling Security Holder”) of Registrable
Securities hereby elects to include the Registrable Securities owned by it and listed below in Item
3 (unless otherwise specified under such Item 3) in the Registration Statement.



 









 




The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate:




QUESTIONNAIRE




	 	 	 	 	 
	1.

	 	Name.	 	 
	 

	 	(a)
	 	Full Legal Name of Selling Security Holder:
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	(b)
	 	Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held:
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	(c)
	 	Full Legal Name of Natural Control Person (which means a natural
person who directly or indirectly alone or with others has power to
vote or dispose of the securities covered by the questionnaire):
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 






	2.	 	Address for Notices to Selling Security Holder:





	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 
	 
	Telephone:	 	 	 	 
	 	 	 	 	 
	Fax:
	 	 	 	 	 	 
	 	 	 
	Contact Person:	 	 
	 

	 	 	 	 	 	 






	3.	 	Beneficial Ownership of Registrable Securities:





	 	 	 	 	 
	 

	 	(a)
	 	Type and Number of Registrable Securities beneficially owned:
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





 









 






	4.	 	Broker-Dealer Status:






	 	(a)	 	Are you a broker-dealer?
	 
	 	 	 	                                                             Yes o               
                          No o
	 
	 	(b)	 	If “yes” to Section 4(a), did you receive your Registrable Securities
as compensation for investment banking services of the Company.
	 
	 	 	 	                                                             Yes o                  
                        No o
	 
	 	Note: If no, the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration Statement.
	 
	 	(c)	 	Are you an affiliate of a broker-dealer?
	 
	 	 	 	                                                             Yes o                  
                        No o
	 
	 	(d)	 	If you are an affiliate of a broker-dealer, do you certify that you
bought the Registrable Securities in the ordinary course of business,
and at the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable Securities?
	 
	 	 	 	                                                             Yes o                  
                       No o
	 
	 	Note: If no, the Commission’s staff has
indicated that you should be
identified as an underwriter in
the Registration Statement.






	5.	 	Beneficial Ownership of Other Securities of the Company Owned by the Selling Security Holder.






Except as set forth below in this Item 5, the undersigned is not the beneficial
or registered owner of any securities of the Company other than the Registrable
Securities listed in Item 3.



	 	 	 	 	 
	 

	 	(a)
	 	Type and Amount of Other Securities beneficially owned by the Selling Security Holder:
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





 









 






	6.	 	Relationships with the Company:






Except as set forth below, neither the undersigned nor any of its affiliates,
officers, directors or principal equity holders (owners of 5% of more of the
equity securities of the undersigned) has held any position or office or has
had any other material relationship with the Company (or its predecessors or
affiliates) during the past three years.




State any exceptions here:



	 	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 





     The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof at any time while the
Registration Statement remains effective.



     By signing below, the undersigned consents to the disclosure of the information contained
herein in its answers to Items 1 through 6 and the inclusion of such information in the
Registration Statement and the related prospectus and any amendments or supplements thereto. The
undersigned understands that such information will be relied upon by the Company in connection with
the preparation or amendment of the Registration Statement and the related prospectus.



     IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	 	 	Beneficial Owner:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	Name:
	 	 
	 

	 	 	 	 	 	 	 	Title:
	 	 





PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:



Jodi L. Lashin

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, New York 10178-0060

Phone: 212-309-6334

Fax: 212-309-6001

E-mail: jlashin@morganlewis.com