EXHIBIT A REGISTRATION RIGHTS AGREEMENT
EXHIBIT
A
This
Registration Rights Agreement ("Agreement"), dated as of June 26, 2007, is
made
by and between PURE VANILLA EXCHANGE, INC., a Nevada corporation ("Company"),
and BRITTANY CAPITAL MANAGEMENT LTD., a Bahamian corporation (the
"Investor").
RECITALS
WHEREAS,
upon the terms and subject to the conditions of the Private Equity Credit
Agreement ("Purchase Agreement"), between the Investor and the Company, the
Company has agreed to issue and sell to the Investor up to Ten Million dollars
($10,000,000) of the common stock of the Company ("Subscribed Shares"), $0.001
par value per share (the "Common Stock"), and
WHEREAS,
to induce the Investor to execute and deliver the Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, "Securities Act"), and applicable
state
securities laws with respect to the Subscribed Shares;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and the Investor hereby agree as
follows:
1. Definitions.
(a) As
used
in this Agreement, the following terms shall have the following
meaning:
(i) “Potential
Material Event” means any of the following: (a) the possession by the Company of
material information not ripe for disclosure in a Registration Statement, which
shall be evidenced by determinations in good faith by the Board of Directors
of
the Company that disclosure of such information in the Registration Statement
would be detrimental to the business and affairs of the Company, or (b) any
material engagement or activity by the Company which would, in the good faith
determination of the Board of Directors of the Company, be adversely affected
by
disclosure in a Registration Statement at such time, which determination shall
be accompanied by a good faith determination by the Board of Directors of the
Company that the Registration Statement would be materially misleading absent
the inclusion of such information.
(ii) "Subscription
Date" shall have the same meaning as set forth in the Purchase
Agreement.
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(iii) "Investor",
has the meaning set forth in the preamble to this Agreement.
(iv) "Register",
"registered" and "registration" refer to a registration effected by preparing
and filing a Registration Statement or Statements in compliance with the
Securities Act and pursuant to Rule 415 under the Securities Act or any
successor rule providing for offering securities on a delayed or continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC").
(v) "Registrable
Securities" shall have the same meaning as set forth in the Purchase
Agreement.
(vi) "Registration
Statement" shall have the same meaning as set forth in the Purchase
Agreement.
(b) Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement.
2. Registration.
(a)
Mandatory
Registration. The
Company shall prepare and file with the SEC, no later than ninety (90) business
days after the Subscription Date, a Registration Statement on Form SB-2
("Registration Statement"), or such other appropriate Registration Statement,
pursuant to Rule 457(o) of the Securities Act such amount permitted in
accordance with Rule 415 of the Securities Act of 1933. Such Registration
Statement shall state that, in accordance with the Securities Act, it also
covers such indeterminate number of additional shares of Common Stock as may
become issuable to prevent dilution resulting from stock splits, or stock
dividends. If at any time the number of Subscribed Shares exceeds the aggregate
number of shares of Common Stock then registered, the Company shall, within
ten
(10) business days after receipt of written notice from the Investor, file
with
the SEC an additional Registration Statement on Form SB-2 or any other
applicable registration statement, to register the Subscribed Shares that exceed
the aggregate number of shares of Common Stock already registered.
(b)
Termination.
If the
Registration Statement covering the Registrable Securities required to be filed
by the Company pursuant to Section 2(a) hereof is not declared effective within
two hundred and seventy (270) days from the Subscription Date, then the
commitment contained in the Common Stock Purchase Agreement and in this
Agreement (the “Commitment”) shall, at the option of the Investor, terminate and
the Investor shall be entitled to the sums set forth in Section 2.1(b) of the
Private Equity Credit Agreement.
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The
Company acknowledges that its failure to have the Registration Statement
declared effective within two hundred seventy (270) days from the Subscription
Date (for any reason other than the requirement by the SEC of modifications
to
the structure of the transactions contemplated hereby that are unacceptable
to
the Company or the Investor) shall cause the Investor to suffer damages in
an
amount that shall be difficult to ascertain. Accordingly, the parties agree
that
it is appropriate to include in the Private Equity Credit Agreement a provision
for liquidated damages. The parties acknowledge and agree that the liquidated
damages provision set forth in this section represents the parties’ good faith
effort to quantify such damages and, as such, agree that the form and amount
of
such liquidated damages are reasonable and will not constitute a penalty. The
payment of liquidated damages shall not relieve the Company from its obligations
to register the Common Stock and deliver the Common Stock pursuant to the terms
of this Agreement, the Purchase Agreement and the Subscribed
Shares.
(c)
Additional Shares to be Registered.
Except
as
set forth on Schedule 2(c), the Company agrees not to include any other
securities in the Registration Statement covering the Registrable Securities
without Investor’s prior written consent which Investor may withhold in its sole
discretion.
3. Obligation
of the Company. In
connection with the registration of the Registrable Securities, the Company
shall do each of the following:
(a) Prepare
promptly, and file with the SEC within ninety (90) days of the Subscription
Date, a Registration Statement with respect to not less than the number of
Registrable Securities provided in Section 2(a) above, and, thereafter, use
all
diligent efforts to cause the Registration Statement relating to the Registrable
Securities to become effective the earlier of (a) five (5) business days after
notice from the Securities and Exchange Commission that the Registration
Statement may be declared effective, or (b) two hundred seventy (270) days
after
the Subscription Date, and keep the Registration Statement effective at all
times until the earliest of (i) the date that is one year after the completion
of the last Closing Date under the Purchase Agreement, (ii) the date when the
Investor may sell all Registrable Securities under Rule 144 without volume
limitations, or (iii) the date the Investor no longer owns any of the
Registrable Securities (collectively, the "Registration Period"), which
Registration Statement (including any amendments or supplements, thereto and
prospectuses contained therein) shall not contain any 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 the light of the circumstances
under which they were made, not misleading;
(b) Prepare
and file with the SEC such amendments (including post-effective amendments)
and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep the Registration
Statement effective at all times during the Registration Period, and, during
the
Registration Period, and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities of the Company
covered by the Registration Statement until the expiration of the Registration
Period.
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(c) Permit
a
single firm of counsel designated by Investor to review the Registration
Statement and all amendments and supplements thereto a reasonable period of
time
(but not less than three (3) Business Day) prior to their filing with the SEC,
and not file any document in a form to which such counsel reasonably
objects.
(d)
Notify
Investor and Investor’s legal counsel identified to the Company (which, until
further notice, shall be deemed to be Xxxxxx & Xxxxxx, LLP, ATTN: Xxxxx
Xxxxxx, Esq..; "Investor’s
Counsel")
(and,
in the case of (i)(A) below, not less than one (1) Business Day prior to such
filing) and (if requested by any such person) confirm such notice in writing
no
later than one (1) Business Day following the day (i): (A) when a prospectus
or
any prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) whenever the SEC notifies the Company
whether there will be a "review" of such Registration Statement; (C) whenever
the Company receives (or a representative of the Company receives on its behalf)
any oral or written comments from the SEC respect of a Registration Statement
(copies or, in the case of oral comments, written or oral summaries of such
comments shall be promptly furnished by the Company to Investor’s Counsel); and
(D) with respect to the Registration Statement or any post-effective amendment,
when the same has become effective; (ii) of any request by the SEC or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or the prospectus or for additional information; (iii)
of
the issuance by the SEC 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) if at any time any of
the
representations or warranties of the Company contained in any agreement
(including any securities purchase agreement) contemplated hereby ceases to
be
true and correct in all material respects; (v) 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 (vi) of the occurrence of any event that to the knowledge of the
Company makes any statement made in the Registration Statement or the 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, the prospectus or other documents so that, in the case
of the Registration Statement or the prospectus, as the case 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 the light of the circumstances under which they were made, not misleading.
In
addition, the Company shall furnish Investor’s Counsel with copies of all
intended written responses to the comments contemplated in clause (C) of this
Section not later than one (1) Business Day in advance of the filing of such
responses with the SEC so that Investor shall have the opportunity to comment
thereon.
(e) Furnish
to Investor, (i) promptly after the same is prepared and publicly distributed,
filed with the SEC, or received by the Company, one (1) copy of the Registration
Statement, each preliminary prospectus and the prospectus, and each amendment
or
supplement thereto, and (ii) such number of copies of a prospectus, including
a
preliminary prospectus, and all amendments and supplements thereto and such
other documents, as the Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by the
Investor;
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(f) Use
all
diligent efforts to (i) register and/or qualify the Registrable Securities
covered by the Registration Statement under such other securities or blue sky
laws of such jurisdictions as the Investor may reasonably request and in which
significant volumes of shares of Common Stock are traded, (ii) prepare and
file
in those jurisdictions such amendments (including post-effective amendments)
and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof at all times during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations
and qualification in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions: provided,
however,
that
the Company shall not be required in connection therewith or as a condition
thereto to (A) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(f), (B) subject itself
to general taxation in any such jurisdiction, (C) file a general consent to
service of process in any such jurisdiction, (D) provide any undertakings that
cause more than nominal expense or burden to the Company or (E) make any change
in its charter or by-laws or any then existing contracts, which in each case
the
Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders;
(g) As
promptly as practicable after becoming aware of such event, notify the Investor
of the happening of any event of which the Company has knowledge, as a result
of
which the prospectus included in the Registration Statement, as then in effect,
includes any 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,
in the light of the circumstances under which they were made, not misleading
("Registration Default"), and uses all diligent efforts to promptly prepare
a
supplement or amendment to the Registration Statement or other appropriate
filing with the SEC to correct such untrue statement or omission, and any other
necessary steps to cure the Registration Default, and deliver a number of copies
of such supplement or amendment to the Investor as the Investor may reasonably
request. Failure to cure the Registration Default within fifteen (15) business
days shall result in the Company including liquidated damages of 2% of the
cost
of all common stock then held by the investor for each10 day period or portion
thereof, beginning on the date of suspension.
(h) As
promptly as practicable after becoming aware of such event, notify the Investor
(or, in the event of an underwritten offering, the managing underwriters) of
the
issuance by the SEC of any notice of effectiveness or any stop order or other
suspension of the effectiveness of the Registration Statement at the earliest
possible time;
(i) Notwithstanding
the foregoing, if at any time or from time to time after the date of
effectiveness of the Registration Statement, the Company notifies Investor
in
writing of the existence of a Potential Material Event (“Blackout Notice”),
Investor shall not offer or sell any Registrable Securities, or engage in any
other transaction involving or relating to the Registrable Securities, from
the
time of the giving of notice with respect to a Potential Material Event until
Investor receives written notice from the Company that such Potential Material
Event either has been disclosed to the public or no longer constitutes a
Potential Material Event; provided,
however,
that (a)
the Company may not so suspend the right to such holders of Registrable
Securities for more than two ten (10) day periods in the aggregate during any
12-month period (“Blackout Period”) with at least a ten (10) Business Day
interval between such periods, during the periods the Registration Statement
is
required to be in effect, or (b) that if such Blackout Period exceeds the
permitted ten (10) day periods, the Company shall pay damages of 2% of the
cost
of all common stock then held by the Investor for each ten (10) day period
or
portion thereof, beginning on the date of the suspension.
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(j) Use
its
commercially reasonable efforts, if eligible, either to (i) cause all the
Registrable Securities covered by the Registration Statement to be listed on
a
national securities exchange and on each additional national securities exchange
on which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) secure designation of all the
Registrable Securities covered by the Registration Statement as a National
Association of Securities Dealers Automated Quotations System ("Nasdaq) "Small
Capitalization" within the meaning of Rule 11Aa2-1 of the SEC under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
quotation of the Registrable Securities on the Nasdaq Small Cap Market; or
if,
despite the Company’s commercially reasonable efforts to satisfy the preceding
clause (i) or (ii), the Company is unsuccessful in doing so, to secure NASD
authorization and quotation for such Registrable Securities on the
over-the-counter bulletin board and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. ("NASD") as such with respect
to such registrable securities; provided, however,
that
the Investor acknowledges that the Company does not currently meet the
requirements for listing on a national securities exchange or the Nasdaq Small
Cap Market pursuant to (i) or (ii) and that nothing in this section shall be
construed to require the Company to pursue such qualification until such time
as
the Company satisfies such requirements for a period of not less than forty-five
(45) days:
(k) Provide
a
transfer agent for the Registrable Securities not later than the Subscription
Date of the Registration Statement;
(l) Cooperate
with the Investor to facilitate the timely preparation and delivery of
certificates for the Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts as the case may be, as the
Investor may reasonably request and registration in such names as the Investor
may request; and, within five (5) business days after a Registration Statement
which includes Registrable Securities is ordered effective by the SEC, the
Company shall deliver, and shall cause legal counsel selected by the Company
to
deliver, to the transfer agent for the Registrable Securities (with copies
to
the Investor) an appropriate instruction and opinion of such counsel, if so
required by the Company’s transfer agent; and
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(m) Take
all
other reasonable actions necessary to expedite and facilitate distribution
to
the Investor of the Registrable Securities pursuant to the Registration
Statement.
4. Obligations
of the Investor.
In
connection with the registration of the Registrable Securities, the Investor
shall have the following obligations;
(a) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of the Investor that the Investor shall timely furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of the Registrable Securities held by it,
as
shall be reasonably required to effect the registration of such Registrable
Securities and shall timely execute such documents in connection with such
registration as the Company may reasonably request.
(b) The
Investor by such Investor’s acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of the Registration Statement hereunder;
and
(c) The
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or 3(h) above,
the
Investor will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until the Investor receives the copies of the supplemented or amended prospectus
contemplated by Section 3(g) or 3(h) and, if so directed by the Company, the
Investor shall deliver to the Company (at the expense of the Company) or destroy
(and deliver to the Company a certificate of destruction) all copies in the
Investor’s possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. Expenses
of Registration. (a)
All
reasonable expenses incurred in connection with Registrations, filings or
qualifications pursuant to Section
3,
including, without limitation, all Registration, listing, and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel for
the Company shall be borne by the Company. A fee for a single counsel for
Investor for the initial Registration Statement and for each Additional
Registration Statement covering the Registrable Securities shall be borne by
the
Company.
(b) Except
as
otherwise provided for in Schedule
5(b)
attached
hereto, the Company nor any of its subsidiaries has, as of the date hereof,
and
the Company shall not on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to Investor in this Agreement or otherwise conflicts with the provisions
hereof. Except as otherwise provided for in Schedule
5(b),
the
Company has not previously entered into any agreement granting any registration
rights with respect to any of its securities to any person. Except as otherwise
provided for in this Section
5,
and
without limiting the generality of the foregoing, without the written consent
of
Investor, the Company shall not grant to any person the right to request the
Company to Register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights
in
full of Investor set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement and the other Transaction
Documents.
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6. Indemnification. After
Registrable Securities are included in a Registration Statement under this
Agreement:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless, the
Investor, the directors, if any, of such Investor, the officers, if any, of
such
Investor, each person, if any, who controls the Investor within the meaning
of
the Securities Act or the Exchange Act (each, an "Indemnified Person"), against
any losses, claims, damages, liabilities or expenses (joint or several) incurred
(collectively, "Claims") to which any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
post-effective amendment thereof or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if used
prior to the Subscription Date of such Registration Statement, or contained
in
the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in the light of the circumstances under which the statements
therein were made, not misleading or (iii) any violation or alleged violation
by
the Company of the Securities Act, the Exchange Act, any state securities law
or
any rule or regulation under the Securities Act, the Exchange Act or any state
securities law (the matters in the foregoing clauses (i) through (iii) being
collectively referred to as "Violations"). The Company shall reimburse the
Investor, promptly as such expenses are incurred and are due and payable, for
any reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a) shall not (i) apply to any Claims arising out
of
or based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Indemnified Person expressly for use in connection with the preparation of
the
Registration Statement or any such amendment thereof or supplement thereto,
if
such prospectus was timely made available by the Company pursuant to Section
3(b) hereof; (ii) with respect to any preliminary prospectus, inure to the
benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; (iii)
be
available to the extent such Claim is based on a failure of the Investor to
deliver or cause to be delivered the prospectus made available by the Company;
or (iv) apply to amounts paid in settlement of any Claim if such settlement
is
effected without the prior written consent of the Company, which consent shall
not be unreasonably withheld. The Investor will indemnify the Company, its
officers, directors and agents (including legal counsel) against any claims
arising out of or based upon a Violation which occurs in reliance upon and
in
conformity with information furnished in writing to the Company, by or on behalf
of such Investor, expressly for use in connection with the preparation of the
Registration Statement, subject to such limitations and conditions set forth
in
the previous sentence. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
or Indemnified Party.
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(b) Promptly
after receipt by an Indemnified Person under this Section 6 of notice of the
commencement of any action (including any governmental action), such Indemnified
Person shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof and the indemnifying party shall
have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person, as the case may be; provided,
however,
that an
Indemnified Person shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate
legal counsel for the Investor selected by the Investor. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of
any
liability to the Indemnified Person under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and
payable.
7. Contribution. To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided,
however,
that
(a) no contribution shall be made under circumstances where the maker would
not
have been liable for indemnification under the fault standards set forth in
Section 6; (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registrable Securities
who
was not guilty of such fraudulent misrepresentation; and (c) contribution by
any
seller of Registrable Securities shall be limited in amount to the net amount
of
proceeds received by such seller from the sale of such Registrable
Securities.
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8. Reports
under Exchange Act.
With a
view to making available to the Investor the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the SEC
that
may at any time permit the Investor to sell securities of the Company to the
public without registration ("Rule 144"), the Company agrees to use its
reasonable best efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Exchange Act;
(c) furnish
to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and the Exchange
Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company solely if unavailable
by XXXXX, and (iii) such other information as may be reasonably requested to
permit the Investors to sell such securities pursuant to Rule 144 without
registration; and
(d)
at
the
request of any Investor of Registrable Securities, give its Transfer Agent
irrevocable instructions (supported by an opinion of Company counsel, if
required or requested by the Transfer Agent) to the effect that, upon the
Transfer Agent’s receipt from such Investor of:
(i)
a
certificate (a “Rule 144 Certificate”) certifying (A) that such Investor has
held the shares of Registrable Securities which the Investor proposes to sell
(the “Securities Being Sold”) for a period of not less than (1) year and (B) as
to such other matters as may be appropriate in accordance with Rule 144 under
the Securities Act, and
(ii)
an
opinion of counsel acceptable to the Company (for which purposes it is agreed
that the initial Investor’s Counsel shall be deemed acceptable if such opinion
is not given by Company Counsel) that, based on the Rule 144 Certificate,
Securities Being Sold may be sold pursuant to the provisions of Rule 144, even
in the absence of an effective Registration Statement,
the
Transfer Agent is to effect the transfer of the Securities Being Sold and issue
to the buyer(s) or transferee(s) thereof one or more stock certificates
representing the transferred Securities Being Sold without any restrictive
legend and without recording any restrictions on the transferability of such
shares on the Transfer Agent’s books and records (except to the extent any such
legend or restriction results from facts other than the identity of the
Investor, as the seller or transferor thereof, or the status, including any
relevant legends or restrictions, of the shares of the Securities Being Sold
while held by the Investor). If the Transfer Agent requires any additional
documentation at the time of the transfer, the Company shall deliver or cause
to
be delivered all such reasonable additional documentation as may be necessary
to
effectuate the issuance of an unlegended certificate.
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9. Miscellaneous.
(a) Registered
Owners.
A person
or entity is deemed to be a holder of Registrable Securities whenever such
person or entity owns of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more persons
or entities with respect to the same Registrable Securities, the Company shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
(b) Rights
Cumulative; Waivers.
The
rights of each of the parties under this Agreement are cumulative. The rights
of
each of the parties hereunder shall not be capable of being waived or varied
other than by an express waiver or variation in writing. Any failure to exercise
or any delay in exercising any of such rights shall not operate as a waiver
or
variation of that or any other such right. Any defective or partial exercise
of
any of such rights shall not preclude any other or further exercise of that
or
any other such right. No act or course of conduct or negotiation on the part
of
any party shall in any way preclude such party from exercising any such right
or
constitute a suspension or any variation of any such right.
(c) Benefit;
Successors Bound.
This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
(d) Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representations, oral
or
written, express or implied, between them with respect to this Agreement or
the
matters described in this Agreement, except as set forth in this Agreement
and
in the other documentation relating to the transactions contemplated by this
Agreement. Any such negotiations, promises, or understandings shall not be
used
to interpret or constitute this Agreement.
(e) [INTENTIONALLY
OMITTED]
(f) Amendment.
Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and Investor.
Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon the Company and any subsequent Transferees.
(g) Severability.
Each
part of this Agreement is intended to be severable. In the event that any
provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and as
so
severed or modified, this Agreement shall continue in full force and
effect.
11
(h) Notices.
Notices
required or permitted to be given hereunder shall be in writing and shall be
deemed to be sufficiently given when personally delivered (by hand, by courier,
by telephone line facsimile transmission, receipt confirmed, or other means)
or
sent by certified mail, return receipt requested, properly addressed and with
proper postage pre-paid (i) if to the Company, at its executive office and
(ii)
if to the Investor, at the address set forth under its name in the Purchase
Agreement, with a copy to its designated attorney, or at such other address
as
each such party furnishes by notice given in accordance with this Section 9(a),
and shall be effective, when personally delivered, upon receipt and, when so
sent by certified mail, five (5) business days after deposit with the United
States Postal Service.
(i) Governing
Law.
This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of New York without reference to its conflicts of laws rules or
principles. Each of the parties consents to the exclusive jurisdiction of the
federal courts of the State of New York in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by
law,
any objection, including any objection based on forum
non coveniens,
to the
bringing of any such proceeding in such jurisdictions.
(j) Consents.
The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of that party.
(k) Further
Assurances.
In
addition to the instruments and documents to be made, executed and delivered
pursuant to this Agreement, the parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(l) Section
Headings.
The
Section headings in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
(m) Construction.
Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
(n) Execution
in Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by telephone line facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement. A facsimile
transmission of this signed Agreement shall be legal and binding on all parties
hereto.
12
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above
written.
| COMPANY: | ||
| PURE VANILLA EXCHANGE, INC. | ||
| |
|
|
| By: | /s/ | |
|
Name:
Xxxxx Xxxxxx
Title:
Chief Executive Officer
|
||
| INVESTOR: | ||
| BRITTANY CAPITAL MANAGEMENT LTD. | ||
| |
|
|
| By: | /s/ | |
|
Name:
Title:
Director
|
||
13
Schedule
2(c)
|
Total
Pure Vanilla Shares to be included in Registration
Statement
|
||||||||||||||||||||||||
|
Xxx
Xxxxxx
|
866,563
|
|||||||||||||||||||||||
|
Xxxxxxxx,
Curhan & Ford
|
145,111
|
|||||||||||||||||||||||
|
Xxxxx
Xxxxxx
|
0
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxxx
|
0
|
|||||||||||||||||||||||
|
Xxxxxxx
Xxxxxxxx
|
0
|
|||||||||||||||||||||||
|
Xxxxx
Xxxxxx
|
0
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxxxx
|
0
|
|||||||||||||||||||||||
|
XXX
acct FBO Xxxxxxxxxx XxXxxxx loan
|
0
|
|||||||||||||||||||||||
|
TAPCLD
LLC
|
0
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxxxxx
|
0
|
|||||||||||||||||||||||
|
EGATNIV
LLC
|
42,009
|
|||||||||||||||||||||||
|
Commonwealth
Inv LLC
|
84,018
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxxxx
|
84,018
|
|||||||||||||||||||||||
|
Professional
Offshore Opportunity Fund Ltd.
|
211,070
|
|||||||||||||||||||||||
|
Xxxxxxx
Xxxxxxxx
|
84,018
|
|||||||||||||||||||||||
|
Alpha
Capital
|
252,052
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxx
|
105,536
|
|||||||||||||||||||||||
|
Iroquois
Capital
|
105,536
|
|||||||||||||||||||||||
|
Gottbetter
Capital Master
|
13,097,595
|
|||||||||||||||||||||||
|
Xxx
Xxxxxxx
|
55,469
|
|||||||||||||||||||||||
|
Xxxxxx
Xxxxxxxx
|
55,469
|
|||||||||||||||||||||||
|
|
||||||||||||||||||||||||
|
Sub-Total
Additional Shares to be registered
|
15,188,463
|
|||||||||||||||||||||||
|
Total
Niimble Group Shares to be included in Registration
Statement
|
||||||||||||||||||||||||
|
Alder
|
1,045
|
|||||||||||||||||||||||
|
Xxxxxx
|
41,146
|
|||||||||||||||||||||||
|
Xxxxx,
Xxxxx
|
18,996
|
|||||||||||||||||||||||
|
Xxxxx,
Xxxxx
|
18,996
|
|||||||||||||||||||||||
|
Xxxxx
|
34,571
|
|||||||||||||||||||||||
|
Xxxxx
|
4,664
|
|||||||||||||||||||||||
|
Xxxxxx
|
24,439
|
|||||||||||||||||||||||
|
Gay
|
35,619
|
|||||||||||||||||||||||
|
Xxxxx
|
6,373
|
|||||||||||||||||||||||
|
Xxxxx,
Xxxxx
|
7,000
|
|||||||||||||||||||||||
|
Xxxx,
Xxxx
|
22,568
|
|||||||||||||||||||||||
|
Xxxxx
|
3,657
|
|||||||||||||||||||||||
|
Xxxxxx
|
24,030
|
|||||||||||||||||||||||
|
Neisloss
|
23,746
|
|||||||||||||||||||||||
|
Xxxxxxxx
|
000
|
|||||||||||||||||||||||
|
Xxxxxxxxx,
Xxxxxxx
|
374
|
|||||||||||||||||||||||
|
Xxxxxxxxx,
Xxxxxxxx
|
374
|
|||||||||||||||||||||||
|
Xxxxxxxxxxxxx
|
15,677
|
|||||||||||||||||||||||
|
Xxxxxx
|
31,106
|
|||||||||||||||||||||||
|
Xxxxxxx
|
7,729
|
|||||||||||||||||||||||
|
Sloane
|
18,962
|
|||||||||||||||||||||||
|
|
||||||||||||||||||||||||
|
Sub-Total
Additional Shares to be registered
|
341,815
|
|||||||||||||||||||||||
|
Total
Additional Shares to be registered
|
15,530,279
|
|||||||||||||||||||||||
14
