REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
This
Registration Rights Agreement (this “Agreement”)
is made and entered into as of August 18, 2010, by and among RoomLinX, Inc., a
Nevada corporation (the “Company”),
and the investors signatory hereto (each an “Investor”
and collectively, the “Investors”).
This
Agreement is made in connection with the Securities Purchase Agreement, dated as
of the date hereof, among the Company and the Investors (the “Purchase
Agreement”).
In
consideration of the mutual covenants and agreements set forth herein and in the
Purchase Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1.
Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement will have the respective meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms have the
respective meanings set forth in this Section
1:
“Advice”
has the meaning set forth in Section
6(d).
“Effective
Date” means, as to a Registration Statement, the date on which such
Registration Statement is first declared effective by the
Commission.
“Effectiveness
Period” means, as to any Registration Statement required to be filed
pursuant to this Agreement, the period commencing on the Effective Date of such
Registration Statement and ending on the earliest to occur of (a) the six month
anniversary of such Effective Date, (b) such time as all of the Registrable
Securities covered by such Registration Statement have been publicly sold by the
Holders of the Registrable Securities included therein, or (c) such time as all
of the Registrable Securities covered by such Registration Statement may be sold
by the Holders 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.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Holder”
or “Holders”
means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified
Party” has the meaning set forth in Section
5(c).
“Indemnifying
Party” has the meaning set forth in Section
5(c).
“Losses”
has the meaning set forth in Section
5(a).
“New
York Courts” means the state and federal courts sitting in the City of
New York, Borough of Manhattan.
“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, limited liability company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
“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 a 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 a 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: (i) the Securities and (ii) any securities issued or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event, or any price adjustment as a result of such stock splits,
reverse stock splits or similar events with respect to any of the Securities.
Notwithstanding the foregoing, a security shall cease to be a Registrable
Security for purposes of this Agreement from and after such time as the Holder
of such security may resell such security without volume restrictions under Rule
144, as determined by the counsel to the Company pursuant to a written opinion
letter to such effect.
“Registration
Statement” means the initial registration statement required to be filed
in accordance with Section
2(a) and any additional registration statements required to be filed
under this Agreement, including in each case the Prospectus, amendments and
supplements to such registration statements or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference therein.
“Rule
144” means Rule 144 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 effect as such Rule.
“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 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 effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended.
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“Selling
Holder Questionnaire” means the selling security holder notice and
questionnaire attached as Annex A hereto.
“Trading
Day” means any day on which the New York Stock Exchange and NASDAQ Global
Market are open for trading.
2.
Registration.
(a) At
any time after October 29, 2010, Holders owning a majority of the Securities may
request that the Company prepare and file with the Commission a Registration
Statement covering the resale of all Registrable Securities not already covered
by an existing and effective Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415. Each Registration
Statement required to be filed under this Agreement shall be filed on Form S-3
(or if the Company is not then eligible to utilize such form of registration
Form S-1). The Company shall use reasonable efforts to cause each Registration
Statement required to be filed under this Agreement to be declared effective
under the Securities Act as soon as possible but after the initial filing
thereof, and shall use its reasonable best efforts to keep each such
Registration Statement continuously effective during its entire Effectiveness
Period. By 5:00 p.m. (New York City time) on the business day
immediately following the Effective Date of each Registration Statement, the
Company shall file with the Commission in accordance with Rule 424 under the
Securities Act the final prospectus to be used in connection with sales pursuant
to such Registration Statement (whether or not such filing is technically
required under such Rule).
(b) Notwithstanding
anything to the contrary contained herein, if the Company furnishes the Holders
with a certificate signed by the President or Chief Executive Officer of the
Company stating that sales under the Registration Statement must be, pursuant to
applicable law or regulation, suspended or in the good faith judgment of the
Board of Directors of the Company, it would be detrimental to the Company and
its stockholders for a Registration Statement be effected or effective for sale
at such time due to the existence of a material development or potential
material development involving the Company which the Company would be obligated
to disclose in the prospectus contained in the Registration
Statement, which disclosure would in the good faith judgment of the Board of
Directors of the Company be premature or otherwise inadvisable at such time,
then the Company will have the right to defer the filing of the Registration
Statement and/or suspend the ability of the Holders to sell Securities pursuant
to the Registration Statement for a period of not more than 100 days after the
date it would otherwise be required to file the Registration Statement pursuant
hereto or after the date of the notice of the suspension of such Registration
Statement; provided, however, that the Company will not utilize this deferral
right more than twice in any twelve month period.
(c) Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex
A (a “Selling
Holder Questionnaire”). The Company shall not be required to
include the Registrable Securities of a Holder in a Registration Statement who
fails to furnish to the Company a fully completed Selling Holder Questionnaire
at least two Trading Days prior to the Filing Date (subject to the requirements
set forth in Section
3(a)).
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3.
Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less than four Trading Days prior to the filing of a Registration Statement or
any related Prospectus or any amendment or supplement thereto, the Company shall
furnish to each Holder copies of the “Selling Stockholders” section of such
document, the “Plan of Distribution” and any risk factor contained in such
document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed, which documents will be subject to the
review of such Holder. Such documents may be delivered to such Holder
via electronic mail (i.e., e-mail). The Company shall not file a
Registration Statement, any Prospectus or any amendments or supplements thereto
in which the “Selling Stockholder” section thereof substantively differs from
the disclosure received from a Holder in its Selling Holder Questionnaire (as
amended or supplemented).
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously
effective as to the applicable Registrable Securities for its Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement, 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
each Registration Statement or any amendment thereto and, as promptly as
reasonably possible provide the Holders true and complete copies of all
correspondence from and to the Commission relating to such Registration
Statement that would not result in the disclosure to the Holders of material and
non-public information concerning the Company; and (iv) comply in all material
respects with the provisions of the Securities Act and the Exchange Act with
respect to the Registration Statement(s) and the disposition of all Registrable
Securities covered by each Registration Statement.
(c) Notify
the Holders as promptly as reasonably possible (and, in the case of (i)(A)
below, not less than two Trading Days prior to such filing and, in the case of
(v) below, not less than three Trading Days prior to the financial statements in
any Registration Statement becoming ineligible for inclusion therein) 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 a Registration Statement is proposed
to be filed; (B) when the Commission notifies the Company whether there will be
a “review” of such Registration Statement and whenever the Commission comments
in writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the Holders
that pertain to the Holders as a Selling Stockholder or to the Plan of
Distribution, but not information which the Company believes would constitute
material and non-public information); and (C) with respect to each 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 a Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a 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 a Registration Statement ineligible for
inclusion therein or any statement made in such 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 such
Registration Statement, Prospectus or other documents so that, in the case of
such 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 light of the circumstances under which they were made, not
misleading.
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(d) Use
its reasonable best efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of a 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.
(e) Furnish
to each Holder, with charge and at the option of the Company in electronic
format, at least one conformed copy of each Registration Statement and each
amendment thereto but not including the exhibits thereto to the extent requested
by such Person (including those previously furnished) promptly after the filing
of such documents with the Commission.
(f) Promptly
deliver to each Holder, with charge, up to twenty (20) copies of each Prospectus
or Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request.
(g) Prior
to any public offering of Registrable Securities, register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of all jurisdictions within the United States as any Holder may request, to keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statements; provided,
however, in connection with any such registration or qualification, the Company
shall not be required to (i) qualify to do business in any jurisdiction where
the Company would not otherwise be required to qualify, (ii) subject itself to
general taxation in any such jurisdiction, (iii) file a general consent to
service of process in any jurisdiction, or (iv) make any change to the Company’s
Articles of Incorporation or bylaws.
(h) Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a purchaser
of such Securities pursuant to the Registration Statement(s), 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.
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(i) Upon
the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to the affected Registration
Statements 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, no Registration
Statement nor any 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.
(j) Use
reasonable efforts to take such other actions as are reasonably and customarily
required by issuers in non-underwritten shelf registrations in order to
facilitate the disposition of Registrable Securities included in any
Registration Statement in accordance with this Agreement.
4.
Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Holders
whether or not any Registrable Securities are sold pursuant to a 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 any market on which the Common Stock is then listed for
trading, and (B) in compliance with applicable state securities or Blue Sky
laws), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities and of printing prospectuses if
the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (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. Except as provided above, 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) and the expense of any annual
audit. In no event shall the Company be responsible for any broker or
similar commissions incurred by any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other cost of the Holders in
connection with this Agreement.
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5.
Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, agents, investment advisors, partners, members and
employees of each of 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, 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, costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys’ fees) and
expenses (collectively, “Losses”),
as incurred, arising out of or relating to 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 (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 (1) such untrue statements or omissions are based solely upon information
regarding a Holder furnished in writing to the Company by a Holder expressly for
use therein, or to the extent that such information relates to a Holder or a
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and 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(c)(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
an Advice or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been
corrected.
(b) Indemnification
by Holders. Each Holder shall, 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 incurred, arising
out of or relating to: (x) such Holder’s failure to comply with the prospectus
delivery requirements of the Securities Act or (y) any 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
arising out of or based upon any omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading
to the extent, but only to the extent that, (1) such untrue statements or
omissions are based 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 and was reviewed and 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(c)(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
an Advice or an amended or supplemented Prospectus, but only if and to the
extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been
corrected. 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 giving rise
to such indemnification obligation.
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(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 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 proximately and
materially adversely 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 and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) 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 have been advised
by counsel that a 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 Indemnifying Party shall not have the right to participate in the defense
thereof and such counsel shall be at the expense of the Indemnifying Party);
provided,
that,
the Indemnifying Party shall pay for no more than two separate sets of counsel
for all Indemnified Parties, such legal counsel shall be selected by Holders of
no less than a majority in interest of the then outstanding Registrable
Securities. 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.
(d) Contribution. If
a claim for indemnification under Section
5(a) or 5(b)
is unavailable to an Indemnified Party (by reason of public policy or
otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, 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
5(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.
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The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section
5(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
5(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.
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.
6.
Miscellaneous.
(a) Remedies. 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 seek specific
performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages may not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement.
(b) No
Piggyback on Registrations. Except as set forth on Schedule
2.15 of the Purchase Agreement, neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant hereto) may
include securities of the Company in a Registration Statement other than the
Registrable Securities, and the Company shall not during the Effectiveness
Period enter into any agreement providing any such right to any of its security
holders.
(c) 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.
(d) 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(c)(iii)-(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 may provide appropriate stop
orders to enforce the provisions of this paragraph.
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(e) 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 stock option or other employee
benefit plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen calendar days after receipt 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, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
(f) Amendments
and Waivers. The provisions of this Agreement, including the
provisions of this Section
6(f), 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 the Holders of no less
than a majority in interest 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 certain Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities to which such waiver or consent
relates. Section
2(a) may not be amended or waived except by written consent of each
Holder affected by such amendment or waiver.
(g) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered before 6:30 p.m. (New York City time) on a Trading
Day via facsimile (provided the sender receives a machine-generated confirmation
of successful transmission) or electronic mail (i.e., E-mail) at the facsimile
number or e-mail address specified in this Section, (b) the next Trading Day
after the date of transmission, if such notice or communication is delivered on
a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on
any Trading Day via facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) or electronic mail (i.e., E-mail) at
the facsimile number or e-mail address specified in this Section, (c) the
Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as follows:
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If
to the Company:
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RoomLinX,
Inc.
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0000
X. 0xx Xxxxxx, Xxxx X
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Xxxxxxxxxx,
Xxxxxxxx 00000
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Attn.:
President
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Facsimile:
(000) 000-0000
E-mail: xxxxxx@xxxxxxxx.xxx
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10
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With
a copy to:
|
Xxxxxxxxx
Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
|
|
|
0000
XXX Xxxxx
|
||
|
Xxxxxxxxx,
XX 00000
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||
|
Attn:
Xxxx Xxxxxx, Esq.
|
||
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Facsimile: (000)
000-0000
|
||
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If
to an Investor:
|
To
the address set forth under such Investor’s name on the signature pages
hereto.
|
|
|
With
a copy to:
|
Sidley
Austin LLP
|
|
|
000
Xxxxxxx Xxx
|
||
|
Xxx
Xxxx, XX 00000
|
||
|
Attention:
Xxxxxxx Xxxxxxxxxx
|
||
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Facsimile: (000)
000-0000
|
||
|
If
to any other Person who is then a registered Holder:
|
To
the address of such Holder as it appears in the stock transfer books of
the Company
|
|
or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.
(h) 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 each Holder. Each
Holder may assign their respective rights hereunder in the manner and to the
Persons as permitted under the Purchase 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.
11
(j) Governing
Law. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party agrees that all
Proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party
hereto or its respective affiliates, employees or agents) will be commenced in
the New York Courts. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any New York Court, or that such Proceeding has been commenced
in an improper or inconvenient forum. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any Proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(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 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.
(n) Independent
Nature of Investors’ Obligations and Rights. The obligations of each
Investor under this Agreement are several and not joint with the obligations of
each other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under this Agreement.
Nothing contained herein or in any Transaction Document, and no action taken by
any Investor pursuant 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 or as a
group with respect to such obligations or the transactions contemplated by this
Agreement or any other Transaction Document. Each Investor acknowledges that no
other Investor will be acting as agent of such Investor in enforcing its rights
under this Agreement. Each Investor shall be entitled to independently 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. The
Company acknowledges that each of the Investors has been provided with the same
Registration Rights Agreement for the purpose of closing a transaction with
multiple Investors and not because it was required or requested to do so by any
Investor.
12
(o) Entire
Agreement. This
Agreement constitutes the entire agreement among the parties hereto pertaining
to the subject matter hereof, and any and all other prior or contemporaneous
written or oral agreements relating to the subject matter hereof existing
between the parties hereto are expressly canceled.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES TO
FOLLOW]
13
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| ROOMLINX, INC. | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx
Xxxxx
|
|||
|
Title: Chief
Executive Officer
|
|||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES OF INVESTORS TO FOLLOW]
[Signature
page to Registration Rights Agreement]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| VERITION MULTI-STRATEGY MASTER FUND LTD. | |||
| By: | Verition Fund Management LLC, | ||
| its investment manager | |||
|
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxx
|
|||
|
Title:
COO
|
|||
| ADDRESS FOR NOTICE | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
|
Attention:
|
|
Tel:
|
||
|
Fax:
|
||
|
Email:
|
[Signature page to Registration
Rights Agreement]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| XXXXXX ADVISORS LLC | |||
| By: | Verition Fund Management LLC, | ||
| its investment manager | |||
|
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxx
|
|||
|
Title:
COO
|
|||
| ADDRESS FOR NOTICE | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
|
Attention:
|
|
Tel:
|
||
|
Fax:
|
||
|
Email:
|
[Signature page to Registration
Rights Agreement]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| ARCEUS PARTNERSHIP | |||
|
|
By:
|
/s/
Manousos Vourkoutiotis
|
|
|
Name:
Manousos Vourkoutiotis
|
|||
|
Title:
Partner
|
|||
| ADDRESS FOR NOTICE | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
|
Attention:
|
|
Tel:
|
||
|
Fax:
|
||
|
Email:
|
[Signature page to Registration
Rights Agreement]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| XXX XXXXX | |||
| /s/ Xxx Xxxxx | |||
| Xxx Xxxxx | |||
| ADDRESS FOR NOTICE | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
|
Attention:
|
|
Tel:
|
||
|
Fax:
|
||
|
Email:
|
[Signature page to Registration
Rights Agreement]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
| XXXX XXXXXXXXX | |||
| /s/ Xxxx Xxxxxxxxx | |||
| Xxxx Xxxxxxxxx | |||
| ADDRESS FOR NOTICE | |||
| C/O Verition Fund Management LLC | |||
| 0 Xxxxxxxx Xxxx | |||
| Xxxxxxxxx, XX 00000 | |||
|
Attention:
|
|
Tel:
|
||
|
Fax:
|
||
|
Email:
|
[Signature page to Registration
Rights Agreement]
Annex
A
ROOMLINX,
INC.
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common
Stock”), of RoomLinX, Inc., a Nevada corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of August __, 2010 (the “Registration
Rights Agreement”), among the Company and the Investors 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 used and not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
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 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
Securityholder:
|
| Telephone: | |||
| Fax: | |||
| Contact Person: | |||
B-1
|
3.
|
Beneficial
Ownership of Registrable
Securities:
|
| Type and Principal Amount of Registrable Securities beneficially owned: | |
|
4.
|
Broker-Dealer
Status:
|
|
|
(a)
|
Are
you a broker-dealer?
|
Yes o
No o
Note: If
yes, the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes o
No o
|
|
(c)
|
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
Securityholder.
|
| 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 above in Item 3. |
|
Type
and Amount of Other Securities beneficially owned by the Selling
Securityholder:
|
|
B-2
|
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: | |
|
7.
|
The
Company has advised each Selling Stockholder that it is the view of the
Commission that it may not use shares registered on the Registration
Statement to cover short sales of Common Stock made prior to the date on
which the Registration Statement is declared effective by the Commission,
in accordance with 1997 Securities and Exchange Commission Manual of
Publicly Available Telephone Interpretations Section A.65. If a Selling
Stockholder uses the prospectus for any sale of the Common Stock, it will
be subject to the prospectus delivery requirements of the Securities Act.
The Selling Stockholders will be responsible to comply with the applicable
provisions of the Securities Act and Exchange Act, and the rules and
regulations thereunder promulgated, including, without limitation,
Regulation M, as applicable to such Selling Stockholders in connection
with resales of their respective shares under the Registration
Statement.
|
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
and prior to the Effective Date for the Registration Statement.
Certain
legal consequences arise from being named as a Selling Securityholder in the
Registration Statement and related prospectus. Accordingly, the
undersigned is advised to consult their own securities law counsel regarding the
consequence of being named or not being named as a Selling Securityholder in the
Registration Statement and the related prospectus.
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. 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. The
undersigned hereby elects to include the Registrable Securities owned by it and
listed above in Item 3 (unless otherwise specified in Item 3) in the
Registration Statement.
B-3
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:
Xxxxxxxxx
Ball Xxxxxx Xxxxxx and Xxxxxxxxxx, LLP
0000 XXX
Xxxxx
Xxxxxxxxx,
XX 00000
Attn: Xxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
B-4
