REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of
October ___, 2017, by and among the undersigned corporation (the
“Company”), and each
signatory hereto (each, an “Investor” and
collectively, the “Investors”).
R E C I T A L S
WHEREAS, the
Company and the Investors are parties to the Exchange Agreements
(the “Exchange
Agreements”), dated as of the date hereof, as such may
be amended and supplemented from time to time;
WHEREAS, the
Investors’ obligations under the Exchange Agreements are
conditioned upon certain registration rights under the Securities
Act of 1933, as amended (the “Securities Act”);
and
WHEREAS, the
Investors and the Company desire to provide for the rights of
registration under the Securities Act as are provided herein upon
the execution and delivery of this Agreement by such Investors and
the Company.
NOW,
THEREFORE, in consideration of the promises, covenants and
conditions set forth herein, the parties hereto hereby agree as
follows:
1. Registration
Rights.
1.1 Definitions. As used in this
Agreement, the following terms shall have the meanings set forth
below:
(a) “Commission” means the
United States Securities and Exchange Commission.
(b) “Common Stock” means the
Company’s common stock, par value $0.01 per
share.
(c) “Effectiveness Date” means
the date that is thirty (30) days after the Trigger
Date.
(d) “Exchange Act” means the
Securities Exchange Act of 1934, as amended.
(e) “Filing Date” means the
date that is ten (10) days after the Trigger Date.
(f) “Investor” means any
person owning Registrable Securities who becomes party to this
Agreement by executing a counterpart signature page hereto, or
other agreement in writing to be bound by the terms hereof, which
is accepted by the Company.
(g) The terms
“register,” “registered” and
“registration” refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such
registration statement or document.
(h) “Registrable Securities”
means 100% of the Shares; provided, however, that Registrable
Securities shall not include any securities of the Company that
have previously been registered and remain subject to a currently
effective registration statement or which have been sold to the
public either pursuant to a registration statement or Rule
144.
(i) “Rule 144” means Rule 144
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
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(j) “Rule 415” means Rule 415
as promulgated by the Commission under the Securities Act, as such
Rule may be amended from time to time, or any similar successor
rule that may be promulgated by the Commission.
(k) “Shares” means the shares
of Common Stock issuable upon conversion of the shares of Series L
Preferred Stock of the Company (the “Series L Preferred
Shares”) issued pursuant to the Exchange Agreements.
(l) “Trigger Date” means the
closing date of the Exchange Agreements.
1.2 Company
Registration.
(a) On or prior to the
Filing Date, the Company shall prepare and file with the Commission
a resale registration statement covering the Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule
415. The resale registration statement shall be on Form S-1 or, if
the Company is so eligible, on Form S-3 (except if the Company is
not then eligible to register for resale the Registrable Securities
on Form S-1 or Form S-3, as the case may be, in which case such
registration shall be on another appropriate form in accordance
herewith) and shall contain (unless otherwise directed by Investors
holding an aggregate of at least 60% of the Registrable Securities
on an “as converted” and “as exercised”
basis) substantially the “Plan of Distribution”
attached hereto as Annex
A. The Company shall cause the registration statement to
become effective and remain effective as provided herein. The
Company shall use its reasonable best efforts to cause the
registration statement to be declared effective under the
Securities Act as soon as possible and, in any event, by the
Effectiveness Date. The Company shall use its reasonable best
efforts to keep the registration statement continuously effective
under the Securities Act until all Registrable Securities covered
by such registration statement have been sold, or may be sold
without the requirement to be in compliance with Rule 144(c)(1) and
otherwise without restriction or limitation pursuant to Rule 144,
as determined by the counsel to the Company (the
“Effectiveness
Period”).
(b) The Company shall
pay to the Investors a fee of one (1%) percent per month of the
aggregate Stated Value (as defined in the Certificate of
Designation of Preferences, Rights and Limitations of 0% Series L
Convertible Preferred Stock of the Series L Preferred Shares
payable in cash, up to a maximum of six (6%) percent, if on the
Filing Date and/or the Effectiveness Date the registration
obligations set forth herein have not been met, and pro- rata for
each month, or partial month, in excess of the Filing Date and/or
the Effectiveness Date that the registration statement has not been
declared effective; provided, however, that the Company shall not
be obligated to pay any such liquidated damages if the Company is
unable to fulfill its registration obligations as a result of
rules, regulations, positions or releases issued or actions taken
by the Commission pursuant to its authority with respect to
“Rule 415” or other rules, regulations, positions or
releases issued or actions taken by the Commission, provided the
Company registers at such time the maximum number of shares of
Common Stock permissible upon consultation with the staff of the
Commission. If during the Effectiveness Period, the number of
Registrable Securities at any time exceeds 100% of the number of
shares of Common Stock then registered in a registration statement,
the Company shall file as soon as reasonably practicable an
additional registration statement covering the resale of not less
than the number of such Registrable Securities.
(c) The Company shall
bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities
with respect to the registrations pursuant to this Section 1.2 for
each Investor, including (without limitation) all registration,
filing and qualification fees, printer’s fees, accounting
fees and fees and disbursements of counsel for the Company, but
excluding any brokerage or underwriting fees, discounts and
commissions relating to Registrable Securities and fees and
disbursements of counsel for the Investors.
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(d) If at any time
during the Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities,
then the Company shall notify each Investor in writing at least
fifteen (15) days prior to the filing of any registration statement
under the Securities Act, in connection with a public offering of
shares of Common Stock (including, but not limited to, registration
statements relating to secondary offerings of securities of the
Company but excluding any registration statements (i) on Form S-4
or S-8 (or any successor or substantially similar form), or of any
employee stock option, stock purchase or compensation plan or of
securities issued or issuable pursuant to any such plan, or a
dividend reinvestment plan, (ii) otherwise relating to any
employee, benefit plan or corporate reorganization or other
transactions covered by Rule 145 promulgated under the Securities
Act, (iii) on any registration form which does not permit secondary
sales or does not include substantially the same information as
would be required to be included in a registration statement
covering the resale of the Registrable Securities. In the event an
Investor desires to include in any such registration statement all
or any part of the Registrable Securities held by such Investor,
the Investor shall within ten (10) days after the above-described
notice from the Company, so notify the Company in writing,
including the number of such Registrable Securities such Investor
wishes to include in such registration statement. If an Investor
decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company such
Investor shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement
or registration statements as may be filed by the Company with
respect to the offering of the securities, all upon the terms and
conditions set forth herein.
1.3 Obligations
of the Company. Whenever required under this Section 1 to
effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file
with the Commission a registration statement with respect to such
Registrable Securities and use its reasonable best efforts to cause
such registration statement to become effective and to keep such
registration statement effective during the Effectiveness
Period;
(b) Prepare and file
with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(c) Furnish to the
Investors such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable
Securities owned by them (provided that the Company would not be
required to print such prospectuses if readily available to
Investors from any electronic service, such as on the XXXXX filing
database maintained at xxx.xxx.xxx);
(d) Use its reasonable
best efforts to register and qualify the securities covered by such
registration statement under such other securities’ or blue
sky laws of such jurisdictions as shall be reasonably requested by
the Investors; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any
such states or jurisdictions;
(e) In the event of any
underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering (each
Investor participating in such underwriting shall also enter into
and perform its obligations under such an agreement);
(f) Promptly notify
each Investor holding Registrable Securities covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act,
within one business day, (i) of the effectiveness of such
registration statement, or (ii) of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then
existing;
(g) Cause all such
Registrable Securities registered pursuant hereto to be listed on
each securities exchange or nationally recognized quotation system
on which similar securities issued by the Company are then listed;
and
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(h) Provide a transfer
agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration.
1.4 Furnish
Information. It shall be a condition precedent to the
Company’s obligations to take any action pursuant to this
Section 1 with respect to the Registrable Securities of any selling
Investor that such Investor shall furnish to the Company such
information regarding such Investor, the Registrable Securities
held by such Investor, and the intended method of disposition of
such securities in the form attached to this Agreement as Annex B,
or as otherwise reasonably required by the Company or the managing
underwriters, if any, to effect the registration of such
Investor’s Registrable Securities.
1.5 Delay
of Registration. No Investor shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this Section
1.
1.6 Indemnification.
(a) To the extent
permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for
such Investor and each person, if any, who controls such Investor
or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which any of the foregoing persons may become
subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively, a “Violation”): (i) any
untrue statement or alleged untrue statement of a material fact
contained in a registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments
or supplements thereto (collectively, the “Filings”), (ii) the
omission or alleged omission to state in the Filings a material
fact required to be stated therein, or necessary to make the
statements therein 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
promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay any legal or other
expenses reasonably incurred by any person to be indemnified
pursuant to this Section 1.6(a) in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided,
however, that the
indemnity agreement contained in this Section 1.6(a) shall not
apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Investor,
underwriter or controlling person.
(b) To the extent
permitted by law, each Investor will indemnify and hold harmless
the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or
the Exchange Act, any underwriter, any other Investor selling
securities in such registration statement and any controlling
person of any such underwriter or other Investor, against any
losses, claims, damages or liabilities (joint or several) to which
any of the foregoing persons may become subject under the
Securities Act, the Exchange Act or other federal or state
securities law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Investor
expressly for use in connection with such registration; and each
such Investor will pay any legal or other expenses reasonably
incurred by any person to be indemnified pursuant to this Section
1.6(b) in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 1.6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Investor (which consent shall not be unreasonably
withheld); provided, however, in no event shall any
indemnity under this subsection 1.6(b) exceed the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.
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(c) Promptly after
receipt by an indemnified party under this Section 1.6 of notice of
the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 1.6, 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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified
party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be
paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified
party under this Section 1.6, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than
under this Section 1.6.
(d) If the
indemnification provided for in Sections 1.6(a) and (b) is held by
a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage or
expense referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of
such loss, claim, damage or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified party on the other in
connection with the statements or omissions or alleged statements
or omissions that resulted in such loss, liability, claim or
expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. In no event shall any Investor
be required to contribute an amount in excess of the net proceeds
received by such Investor upon the sale of the Registrable
Securities giving rise to such indemnification
obligation.
(e) The obligations of
the Company and Investors under this Section 1.6 shall survive the
completion of any offering of Registrable Securities in a
registration statement under this Section 1, and
otherwise.
1.7 Reports
Under Securities Exchange Act. With a view to making
available the benefits of certain rules and regulations of the
Commission, including Rule 144, that may at any time permit an
Investor to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-1 or Form S-3,
the Company agrees to:
(a) make and keep
public information available, as those terms are understood and
defined in Rule 144, at all times after the closing of the Exchange
Agreements;
(b) take such action,
including the voluntary registration of its Common Stock under
Section 12 of the Exchange Act, as is necessary to enable the
Investors to utilize Form S-1 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after
the end of the fiscal year in which the registration statement is
declared effective;
(c) file with the
Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange
Act; and
(d) furnish to any
Investor, so long as the Investor owns any Registrable Securities,
forthwith 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 (at any time after it has
become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant
to Form S-1 or Form S-3 (at any time after it so qualifies), (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, and
(iii) such other information as may be reasonably requested in
availing any Investor of any rule or regulation of the Commission
that permits the selling of any such securities without
registration or pursuant to such form.
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1.8 Transfer
or Assignment of Registration Rights. The rights to cause
the Company to register Registrable Securities pursuant to this
Section 1 may be transferred or assigned, but only with all related
obligations, by an Investor to a transferee or assignee;
provided, (i) that prior to
any transfer or assignment, the Company is furnished with written
notice stating the name and address of such transferee or assignee
and identifying the securities with respect to which such
registration rights are being transferred or assigned, (ii) such
transferee or assignee agrees in writing to be bound by and subject
to the terms and conditions of this Agreement and (iii) such
transfer or assignment shall be effective only if immediately
following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under
the Securities Act.
2. Legend.
2.1 Each
certificate representing Shares held by the Investors shall be
endorsed with the following legend:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF
COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH
SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY
SUCH SECURITIES.”
2.2 The
legend set forth above shall be removed, and the Company shall
issue a certificate without such legend to the transferee of the
Shares represented thereby, if, unless otherwise required by state
securities laws, (i) such Shares have been sold under an effective
registration statement under the Securities Act, (ii) in connection
with a sale, assignment or other transfer, such holder provides the
Company with an opinion of counsel, reasonably acceptable to the
Company, to the effect that such sale, assignment or transfer is
being made pursuant to an exemption from the registration
requirements of the Securities Act, or (iii) such holder provides
the Company with reasonable assurance that the Shares are being
sold, assigned or transferred pursuant to Rule 144 or Rule 144A
under the Securities Act.
3. Miscellaneous.
3.1 Governing
Law. The parties hereby agree that any dispute which may
arise between them arising out of or in connection with this
Agreement shall be adjudicated only before a federal court located
in the State of New York and they hereby submit to the exclusive
jurisdiction of the federal and state courts of the State of New
York with respect to any action or legal proceeding commenced by
any party, and irrevocably waive any objection they now or
hereafter may have respecting the venue of any such action or
proceeding brought in such a court or respecting the fact that such
court is an inconvenient forum, relating to or arising out of this
Agreement or any acts or omissions relating to the registration of
the securities hereunder, and consent to the service of process in
any such action or legal proceeding by means of registered or
certified mail, return receipt requested, in care of the address
set forth below or such other address as the undersigned shall
furnish in writing to the other.
3.2 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY
JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY
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3.3 Waivers
and Amendments. This Agreement may be terminated and any
term of this Agreement may be amended or waived (either generally
or in a particular instance and either retroactively or
prospectively) with the written consent of the Company and
Investors holding at least a 60% of the Registrable Securities then
outstanding (the “Majority Investors”).
Notwithstanding the foregoing, additional parties may be added as
Investors under this Agreement, and the definition of Registrable
Securities expanded, with the written consent of the Company and
the Majority Investors. No such amendment or waiver shall reduce
the aforesaid percentage of the Registrable Securities, the holders
of which are required to consent to any termination, amendment or
waiver without the consent of the record holders of all of the
Registrable Securities. Any termination, amendment or waiver
effected in accordance with this Section 3.3 shall be binding upon
each holder of Registrable Securities then outstanding, each future
holder of all such Registrable Securities and the
Company.
3.4 Successors
and Assigns. Except as otherwise expressly provided herein,
the provisions of this Agreement shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
3.5 Entire
Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the
subject matter hereof, and no party shall be liable or bound to any
other party in any manner by any warranties, representations or
covenants except as specifically set forth herein.
3.6 Notices.
All notices and other communications required or permitted under
this Agreement shall be in writing and shall be delivered
personally by hand or by overnight courier, mailed by United States
first-class mail, postage prepaid, sent by facsimile or sent by
electronic mail directed (a) if to an Investor, at such
Investor’s address, facsimile number or electronic mail
address set forth in the Company’s records, or at such other
address, facsimile number or electronic mail address as such
Investor may designate by ten (10) days’ advance written
notice to the other parties hereto or (b) if to the Company, to its
address, facsimile number or electronic mail address set forth on
its signature page to this Agreement and directed to the attention
of its President, or at such other address, facsimile number or
electronic mail address as the Company may designate by ten (10)
days’ advance written notice to the other parties hereto. All
such notices and other communications shall be effective or deemed
given upon delivery, on the date that is three (3) days following
the date of mailing, upon confirmation of facsimile transfer or
upon confirmation of electronic mail delivery.
3.7 Interpretation.
The words “include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without limitation.”
The titles and subtitles used in this Agreement are used for
convenience only and are not considered in construing or
interpreting this Agreement.
3.8 Severability.
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be
excluded from this Agreement, and the balance of the Agreement
shall be interpreted as if such provision were so excluded, and
shall be enforceable in accordance with its terms.
3.9 Independent
Nature of Investors’ Obligations and Rights. The
obligations of each Investor hereunder are several and not joint
with the obligations of any other Investor hereunder, and no
Investor shall be responsible in any way for the performance of the
obligations of any other Investor hereunder. Nothing contained
herein or in any other agreement or document delivered at any
closing, and no action taken by any Investor pursuant hereto or
thereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Investors are in any way
acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Investor 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 Investor to be joined as an
additional party in any proceeding for such purpose.
3.10 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which together shall
constitute one instrument.
3.11 Telecopy
Execution and Delivery. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more
parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar
electronic transmission device pursuant to which the signature of
or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto
agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
[SIGNATURE PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, as of the date, month and
year first set forth above.
By:________________________________
Name:
J. Xxxxx Xxxxxx
Title:
President and Chief Executive Officer
Address for
notice:
Attention:
Chief Executive Officer
[COMPANY
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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IN
WITNESS WHEREOF, the undersigned Investor has executed this
Agreement as of the date, month and year that such Investor became
the owner of Registrable Securities.
“Investor”
___________________________________
By:________________________________
Name
Title:
Address:
___________________________________
___________________________________
___________________________________
Telephone:__________________________
Facsimile:___________________________
Email:______________________________
[INVESTOR COUNTERPART SIGNATURE PAGE TO
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Annex A
Plan of Distribution
Each
selling stockholder of the common stock and any of their pledgees,
assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock on the NASDAQ Capital
Market or any other stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales
may be at fixed or negotiated prices. A selling stockholder may use
any one or more of the following methods when selling
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 resale by the broker-dealer for its
account;
●
an exchange
distribution in accordance with the rules of the applicable
exchange;
●
privately
negotiated transactions;
●
settlement of short
sales entered into after the effective date of the registration
statement of which this prospectus is a part;
●
broker-dealers may
agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;
●
through the writing
or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
●
a combination of
any such methods of sale; or
●
any other method
permitted pursuant to applicable law.
The
selling stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, as amended, if available, rather than under
this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated, but, except as set forth in
a supplement to this prospectus, in the case of an agency
transaction not in excess of a customary brokerage commission in
compliance with FINRA Rule 2440; and in the case of a principal
transaction a markup or markdown in compliance with FINRA
IM-2440.
In
connection with the sale of the common stock or interests therein,
the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the common stock in the course of hedging
the positions they assume. The selling stockholders may also sell
shares of the common stock short and deliver these securities to
close out their short positions, or loan or pledge the common stock
to broker-dealers that in turn may sell these securities. The
selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
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The
selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be
“underwriters” within the meaning of the Securities Act
of 1933, as amended, in connection with such sales. In such event,
any commissions received by such 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 of 1933, as amended. Each selling stockholder has informed us
that it does not have any written or oral agreement or
understanding, directly or indirectly, with any person to
distribute the common stock.
We are
required to pay certain fees and expenses incurred by us incident
to the registration of the shares. We have agreed to indemnify the
selling stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act of
1933, as amended.
Because
selling stockholders may be deemed to be “underwriters”
within the meaning of the Securities Act of 1933, as amended, they
will be subject to the prospectus delivery requirements of the
Securities Act of 1933, as amended, including Rule 172 thereunder.
In addition, any securities covered by this prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act of
1933, as amended may be sold under Rule 144 rather than under this
prospectus. There is no underwriter or coordinating broker acting
in connection with the proposed sale of the resale shares by the
selling stockholders.
We
agreed to keep this prospectus effective until the earlier of (i)
the date on which the shares may be resold by the selling
stockholders without registration and without the requirement to be
in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144 or (ii) all of the shares have
been sold pursuant to this prospectus or Rule 144 under the
Securities Act or any other rule of similar effect. The resale
shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In
addition, in certain states, the resale shares may not be sold
unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or
qualification requirement is available and is complied
with.
Under
applicable rules and regulations under the Securities Exchange Act
of 1934, as amended, any person engaged in the distribution of the
resale shares may not simultaneously engage in market making
activities with respect to the common stock for the applicable
restricted period, as defined in Regulation M, prior to the
commencement of the distribution. In addition, the selling
stockholders will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including Regulation M, which may limit the
timing of purchases and sales of shares of the common stock by the
selling stockholders or any other person. We will make copies of
this prospectus available to the selling stockholders and have
informed them of the need to deliver a copy of this prospectus to
each purchaser at or prior to the time of the sale (including by
compliance with Rule 172 under the Securities Act of 1933, as
amended).
-11-
Annex
B
Selling Securityholder Notice and Questionnaire
The undersigned beneficial owner of common stock (the
“Registrable
Securities”) of MabVax
Therapeutics Holdings, Inc., a Delaware corporation (the
“Company”),
understands that the Company has filed or intends to file with the
Securities and Exchange Commission (the “Commission”)
a registration statement (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 (the “Registration Rights
Agreement”) to which this
document is annexed. 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
securityholder 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 securityholder in the Registration Statement and
the related prospectus.
NOTICE
The undersigned beneficial owner (the “Selling
Securityholder”) of
Registrable Securities hereby elects to include the Registrable
Securities owned by it 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 Securityholder
(b)
Full
Legal Name of Registered Holder (if not the same as (a) above)
through which Registrable Securities 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 this
Questionnaire):
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
Fax:
|
|
Contact Person:
|
3.
Broker-Dealer Status:
(a)
Are
you a broker-dealer?
Yes No
(b)
If
“yes” to Section 3(a), did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
Yes No
-12-
Note:
If
“no” to Section 3(b), 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 No
(d)
If
you are an affiliate of a broker-dealer, do you certify that you
purchased 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 No
Note:
If
“no” to Section 3(d), the Commission’s staff has
indicated that you should be identified as an underwriter in the
Registration Statement.
4. Beneficial Ownership of Securities of the Company Owned by the
Selling Securityholder.
Except as set forth below in this Item 4, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the securities issuable pursuant to the Exchange
Agreements.
(a)
Type
and Amount of other securities beneficially owned by the Selling
Securityholder:
5. 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 5
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.
Date:
Beneficial
Owner:
By:_________________________________
Name:
Title:
[SIGNATURE PAGE FOR SELLING SECURITYHOLDER NOTICE AND
QUESTIONNAIRE]
-13-
