REGISTRATION RIGHTS AGREEMENT
Exhibit
99.4
Execution
Copy
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated as of December 5, 2006, is by and between ZAP, a California corporation
(the “Company”),
and each of the entities whose names appear on the signature pages hereof.
Such
entities are each referred to herein as an “Investor”
and, collectively, as the “Investors”.
The
Company has agreed, on the terms and subject to the conditions set forth in
the
Securities Purchase Agreement, dated as of December 5, 2006 (the “Securities
Purchase Agreement”),
to issue and sell to each Investor named therein (A) one or more 8% Senior
Convertible Notes in the form attached to the Securities Purchase Agreement
(each, a “Note”
and, collectively, the “Notes”)
and (B) a Warrant in the form attached to the Securities Purchase Agreement
(each, a “Warrant”
and, collectively, the “Warrants”).
The
Notes are convertible into shares (the “Conversion
Shares”)
of the Company’s common stock, no par value (the “Common
Stock”).
The Warrants are exercisable into shares of Common Stock (the “Warrant
Shares”)
in accordance with their terms.
In
order to induce each Investor to enter into the Securities Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended (the “Securities
Act”),
and under applicable state securities laws.
In
consideration of each Investor entering into the Securities Purchase Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the meanings
specified:
“Business
Day”
means any day other than a Saturday, a Sunday or a day on which the Commission
is closed or on which banks in the City of New York are authorized by law to
be
closed.
“Commission”
means the Securities and Exchange Commission.
“Effective
Date”
means the date on which the Registration Statement is declared effective by
the
Commission.
“Filing
Deadline”
means the ninetieth (90th) calendar day following the Closing
Date.
“Holder”
means any person owning or having the right to acquire, through conversion
of
the Notes or exercise of the Warrants or otherwise, Registrable Securities,
including initially each Investor and thereafter any permitted assignee
thereof.
“Registrable
Securities”
means the Conversion Shares, the Warrant Shares and any other shares of Common
Stock (or other securities) issued or issuable pursuant to the terms of the
Notes or the Warrants, and any shares of capital stock issued or issuable from
time to time (with any adjustments) in replacement of, in exchange for or
otherwise in respect of the Conversion Shares and the Warrant
Shares.
“Registration
Deadline”
means the one hundred and eightieth (180th)
calendar day following the Closing Date.
“Registration
Period”
has the meaning set forth in Section
2(d)
of this Agreement.
“Registration
Statement”
means a registration statement or statements prepared in compliance with the
Securities Act and pursuant to Rule 415 under the Securities Act (“Rule
415”)
or any successor rule providing for the offering of securities on a continuous
or delayed basis.
Capitalized
terms used herein and not otherwise defined shall have the respective meanings
specified in the Securities Purchase Agreement. All definitions contained in
this Agreement are equally applicable to the singular and plural forms of the
terms defined. The words “hereof”, “herein” and “hereunder” and words of similar
import contained in this Agreement refer to this Agreement as a whole and not
to
any particular provision of this Agreement.
2. REGISTRATION.
(a) Filing
of Registration Statement.
On or before the Filing Deadline, the Company shall prepare and file with the
Commission a Registration Statement on Form SB-2 as a “shelf” registration
statement under Rule 415 covering the resale of a number of shares of
Registrable Securities equal to two hundred percent (200%) of the number of
shares of Common Stock issuable upon conversion in full of the Notes and
exercise in full of the Warrants (such number to be determined without regard
to
any restriction on such conversion or exercise). Such Registration Statement
shall state, to the extent permitted by Rule 416 under the Securities Act,
that
it also covers such indeterminate number of additional shares of Common Stock
as
may become issuable upon the conversion of the Notes and exercise of the
Warrants in order to prevent dilution resulting from stock splits, stock
dividends or similar events.
(b) S-3
Registration Statement.
Notwithstanding the foregoing Section
2(a),
in the event that the Company files a Registration Statement on Form SB-2,
and
thereafter meets the eligibility requirements to use Form S-3 for the resale
of
Registrable Securities by the Investors, the Company shall re-file such
Registration Statement, or file a new Registration Statement on Form S-3
covering the greater of (i) the number of shares then registered on the existing
Registration Statement(s) (and not previously sold pursuant to an existing
Registration Statement or pursuant to
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Rule
144 under the Securities Act (“Rule
144”))
and (ii) the number of shares required to be registered pursuant to the terms
of
this Agreement, as promptly as practicable (but in no event later than thirty
(30) days) after the Company meets such requirements.
(c) Effectiveness.
The Company shall use its best efforts to cause the Registration Statement
to
become effective as soon as practicable following the filing thereof, but in
no
event later than the Registration Deadline. The Company shall respond promptly
to any and all comments made by the staff of the Commission with respect to
a
Registration Statement, and shall submit to the Commission, within five (5)
Business Days after the Company learns that no review of such Registration
Statement will be made by the staff of the Commission or that the staff of
the
Commission has no further comments on such Registration Statement, as the case
may be, a request for acceleration of the effectiveness of such Registration
Statement to a time and date not later than two (2) Business Days after the
submission of such request. The Company will maintain the effectiveness of
each
Registration Statement filed pursuant to this Agreement until the earlier to
occur of (i) the date on which all of the Registrable Securities eligible for
resale thereunder have been publicly sold pursuant to the Registration Statement
or Rule 144, and (ii) the date on which all of the Registrable Securities
remaining to be sold under such Registration Statement (in the reasonable
opinion of counsel to the Company) may be immediately sold to the public under
Rule 144(k) under the Securities Act (“Rule
144(k)”)
or any successor provision (the period beginning on the Registration Deadline
and ending on the earliest to occur of clause
(i)
or (ii)
above being referred to herein as the “Registration
Period”)
or until such later date as the Company shall determine.
(d) Registration
Default.
If (i) the Registration Statement is not filed on or before the Filing Deadline
or declared effective by the Commission on or before the Registration Deadline,
(ii) after a Registration Statement has been declared effective by the
Commission, sales of Registrable Securities (other than such Registrable
Securities as are then freely saleable pursuant to Rule 144(k)) cannot be made
by a Holder under a Registration Statement for any reason not within the
exclusive control of such Holder or (iii) an amendment or supplement to a
Registration Statement, or a new registration statement, required to be filed
pursuant to the terms of Section
3(j) of
this Agreement, is not filed on or before the date required by such paragraph
(each of the foregoing clauses
(i),
(ii)
and (iii)
being referred to herein as a “Registration
Default”),
the Company shall make monthly cash payments (pro
rated
for partial periods) to each Holder equal to such Holder’s pro
rata
share (based on the aggregate number of Registrable Securities then held by
or
issuable to such Holder as of the occurrence of the Registration Deadline)
equal
to one percent (1%) of the aggregate Purchase Price paid by such Holder for
such
Holder’s Note and Warrant for each thirty (30) day period (pro rated for partial
periods) in which a Registration Default exists. Each payment required to be
made under this Section
2(d)
shall be made within two (2) Business Days following the last day of each
calendar month in which a Registration Default exists. Any such payment shall
be
in addition to any other remedies available to each Holder at law or in equity,
whether pursuant to the terms hereof, the Securities Purchase Agreement, the
Notes, or otherwise.
(e) Allocation
of Registered Shares.
The initial number of Conversion Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro
rata
among the Holders based on the aggregate number of Registrable Securities issued
or issuable to each Holder at the time the Registration
Statement
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covering
such initial number of Registrable Securities or increase thereof is declared
effective by the Commission (such number to be determined using the Conversion
Price or Exercise Price, as applicable, in effect at such time and without
regard to any restriction on the ability of a Holder to convert such Holder’s
Note or exercise such Holder’s Warrant as of such date). In the event that a
Holder sells or otherwise transfers any of such Holder’s Registrable Securities,
each transferee shall be allocated the portion of the then remaining number
of
Registrable Securities included in such Registration Statement and allocable
to
such Holder.
(f) Registration
of Other Securities.
During the period beginning on the date hereof and ending on the Effective
Date,
the Company shall refrain from filing any registration statement (other than
(i)
a Registration Statement filed hereunder or that otherwise includes the
Registrable Securities or (ii) a registration statement on Form S-8 with respect
to stock option plans and agreements and stock plans currently in effect and
disclosed in the Securities Purchase Agreement or the schedules thereto). In
no
event shall the Company include any securities other than Registrable Securities
on any Registration Statement filed by the Company on behalf of the Holders
pursuant to the terms hereof.
3. OBLIGATIONS
OF THE COMPANY.
In
addition to performing its obligations hereunder, including without limitation
those pursuant to Section
2
above, the Company shall, with respect to each Registration
Statement:
(a) 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 or to maintain the effectiveness of such Registration Statement
during the Registration Period, or as may be reasonably requested by a Holder
in
order to incorporate information concerning such Holder or such Holder’s
intended method of distribution;
(b) as
soon as practicable following the Closing, take all steps necessary and
otherwise use its best efforts to secure the listing on the Principal Market
of
all Registrable Securities issuable upon conversion of the Notes and exercise
of
the Warrants, and at any Holder’s request, provide such Holder with reasonable
evidence thereof;
(c) so
long as a Registration Statement is effective covering the resale of the
applicable Registrable Securities owned by a Holder, furnish to each Holder
such
number of copies of the prospectus included in such Registration Statement,
including a preliminary prospectus, in conformity with the requirements of
the
Securities Act, and such other documents as such Holder may reasonably request
in order to facilitate the disposition of such Holder’s Registrable
Securities;
(d) use
commercially reasonable efforts to register or qualify the Registrable
Securities under the securities or “blue sky” laws of such jurisdictions within
the United States as shall be reasonably requested from time to time by a
Holder, and do any and all other acts or things which may reasonably be
necessary or advisable to enable such Holder to consummate the public sale
or
other disposition of the Registrable Securities in such jurisdictions;
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 jurisdiction;
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(e) notify
each Holder immediately after becoming aware of the occurrence of any event
(but
shall not, without the prior written consent of such Holder, disclose to such
Holder any facts or circumstances constituting material non-public information)
as a result of which the prospectus included in such Registration Statement,
as
then in effect, contains an untrue statement of material fact or omits 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, and as promptly as practicable prepare and file with the
Commission and furnish to each Holder a reasonable number of copies of a
supplement or an amendment to such prospectus as may be necessary so that such
prospectus does not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(f) use
commercially reasonable efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of such Registration Statement and,
if
such an order is issued, to use commercially reasonable efforts obtain the
withdrawal thereof at the earliest possible time and to notify each Holder
in
writing of the issuance of such order and the resolution thereof;
(g) furnish
to each Holder, on the date that such Registration Statement, or any successor
registration statement, becomes effective, a letter, dated such date, signed
by
outside counsel to the Company and addressed to such Holder, confirming such
effectiveness and, to the knowledge of such counsel, the absence of any stop
order;
(h) provide
to each Holder and its representatives the opportunity to conduct a reasonable
inquiry of the Company’s financial and other records during normal business
hours and make available during normal business hours its officers, directors
and employees for questions regarding information which such Holder may
reasonably request in order to fulfill any due diligence obligation on its
part;
(i) permit
counsel for each Holder to review such Registration Statement and all amendments
and supplements thereto, and any comments made by the staff of the Commission
and the Company’s responses thereto, within a reasonable period of time prior to
the filing thereof with the Commission (or, in the case of comments made by
the
staff of the Commission, within a reasonable period of time following the
receipt thereof by the Company); and
(j) in
the event that, at any time, the number of shares available under the
Registration Statement is insufficient to cover one hundred and twenty-five
percent (125%) of the Registrable Securities issued or issuable under the Notes
and the Warrants (such number to be determined using the Conversion Price or
Exercise Price, as applicable, in effect at such time and without regard to
any
restriction on the ability of any Holder to convert such Holder’s Note or
exercise such Holder’s Warrant) the Company shall promptly amend such
Registration Statement or file a new registration statement, in any event as
soon as practicable, but not later than the tenth (10th)
day following notice from a Holder of the occurrence of such event, so that
such
Registration Statement or such new registration statement, or both, covers
no
less than two hundred percent (200%) of the Registrable Securities issued or
issuable under the Notes and the Warrants (such number to be determined using
the Conversion Price or Exercise Price, as applicable, in effect at
the
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time
of such amendment or filing and without regard to any restriction on the ability
of any Holder to convert such Holder’s Note or exercise such Holder’s Warrant).
The Company shall use its best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable following
the
filing thereof. Any Registration Statement filed pursuant to this Section
3(j)
shall state that, to the extent permitted by Rule 416 under the Securities
Act,
such Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable under the Notes and the Warrants
in order to prevent dilution resulting from stock splits, stock dividends or
similar events. Unless and until such amendment or new Registration Statement
becomes effective, each Holder shall have the rights described in Section
2(d)
of this Agreement.
4. OBLIGATIONS
OF EACH HOLDER.
In
connection with the registration of Registrable Securities pursuant to a
Registration Statement, each Holder shall:
(a)
timely furnish to the Company in writing such information regarding itself
and
the intended method of disposition of such Registrable Securities as the Company
shall reasonably request in order to effect the registration thereof;
(b)
upon receipt of any notice from the Company of the happening of any event of
the
kind described in Sections
3(e) or
3(f)
of
this Agreement, immediately discontinue any sale or other disposition of such
Registrable Securities pursuant to such Registration Statement until the filing
of an amendment or supplement as described in such Section
3(e) or
withdrawal of the stop order referred to in such Section
3(f),
and use commercially reasonable efforts to maintain the confidentiality of
such
notice and its contents;
(c)
to the extent required by applicable law, deliver a prospectus to the purchaser
of such Registrable Securities;
(d)
promptly notify the Company when it has sold all of the Registrable Securities
beneficially owned by it; and
(e)
notify the Company in the event that any information supplied by such Holder
in
writing for inclusion in such Registration Statement or related prospectus
contains an untrue statement of material fact or omits to state a material
fact
required to be stated therein or necessary to make such information not
misleading in light of the circumstances then existing; and immediately
discontinue any sale or other disposition of such Registrable Securities
pursuant to such Registration Statement until the filing of an amendment or
supplement to such prospectus as may be necessary so that such prospectus does
not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
5. INDEMNIFICATION.
In
the event that any Registrable Securities are included in a Registration
Statement under this Agreement:
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(a) the
Company shall indemnify and hold harmless each Holder, the officers, directors,
employees, agents and representatives of such Holder, and each person, if any,
who controls such Holder within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
against any losses, claims, damages, liabilities or reasonable out-of-pocket
expenses (whether joint or several) (collectively, including reasonable legal
expenses or other expenses reasonably incurred in connection with investigating
or defending same, “Losses”),
insofar as any such Losses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement under which such Registrable Securities were registered,
including any preliminary prospectus or final prospectus contained therein
or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein 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. Subject to the provisions of Section
5(c)
of this Agreement, the Company will reimburse such Holder, and each such
officer, director, employee, agent, representative or controlling person, for
any reasonable legal expenses or other out-of-pocket expenses (promptly as
such
expenses are incurred) by any such entity or person in connection with
investigating or defending any Loss; provided,
however,
that the foregoing indemnity shall not apply to amounts paid in settlement
of
any Loss if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company be
obligated to indemnify any person for any Loss to the extent that such Loss
arises out of or is based upon (i) any omission to state a material fact
required to be stated therein or necessary to make statements therein not
misleading that conforms in all material respects to written information
furnished by such person expressly for use in such Registration Statement or
(ii) a failure of such person to deliver or cause to be delivered the final
prospectus contained in the Registration Statement and made available by the
Company, if such delivery is required by applicable law.
(b) each
Holder who is named in such Registration Statement as a selling shareholder,
acting severally and not jointly, shall indemnify and hold harmless the Company,
the officers, directors, employees, agents and representatives of the Company,
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any Losses to the extent (and only
to the extent) that any such Losses arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact stated therein
or any omission to state a material fact required to be stated therein or
necessary to make statements therein not misleading that conforms in all
material respects to written information furnished by such person expressly
for
use in such Registration Statement, or (ii) a failure of such Holder to deliver
or cause to be delivered the final prospectus contained in the Registration
Statement and made available by the Company, if such delivery is required under
applicable law. Subject to the provisions of Section
5(c)
of this Agreement, such Holder will reimburse any reasonable legal or other
expenses (promptly as such expenses are incurred) by the Company and any such
officer, director, employee, agent, representative, or controlling person,
in
connection with investigating or defending any such Loss; provided,
however,
that the foregoing indemnity shall not apply to amounts paid in settlement
of
any such Loss if such settlement is effected without the consent of such Holder
(which consent shall not be unreasonably withheld); and provided,
further,
that, in no event shall any indemnity under this Section
5(b)
exceed the amount of the net proceeds resulting from the sale of Registrable
Securities by such Holder under such Registration Statement.
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(c) Promptly
after receipt by an indemnified party under this Section
5
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding), such indemnified party will, if a claim
in
respect thereof is to be made against any indemnifying party under this
Section 5,
promptly 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
assume the defense thereof with counsel selected by the indemnifying party
and
reasonably acceptable to the indemnified party; provided,
however,
that an indemnified party shall have the right to retain its own counsel, with
the reasonably incurred fees and expenses of such counsel to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate under applicable
standards of professional conduct due to actual or potential conflicting
interests between such indemnified party and any other party represented by
such
counsel in such action or proceeding. The failure by an indemnified party to
notify the indemnifying party within a reasonable time following the
commencement of any action or proceeding of which the indemnified party is
aware, to the extent materially prejudicial to such indemnifying party’s ability
to defend such action, shall relieve such indemnifying party of any liability
to
the indemnified party under this Section
5
with respect to such action or proceeding, 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
5
or with respect to any other action or proceeding.
(d) In
the event that the indemnity provided in paragraph
(a)
or (b)
of this Section
5
is unavailable or insufficient to hold harmless an indemnified party for any
reason, the Company and each Holder agree, severally and not jointly, to
contribute to the aggregate Losses to which the Company or such Holder (or
its
respective officers, directors, employees, agents, representatives or
controlling persons), may be subject in such proportion as is appropriate to
reflect the relative fault of the Company and such Holder in connection with
the
statements or omissions which resulted in such Losses; provided,
however,
that in no case shall such Holder be responsible for any amount in excess of
the
net proceeds resulting from the sale of Registrable Securities under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro
rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this Section
5 (d),
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation. For purposes of this
Section
5,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as
such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and each officer, director, employee,
agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this Section
5(d).
(e) The
obligations of the Company and each Holder under this Section 5
shall survive the conversion of the Note and exercise of the Warrants in full,
the completion of any
8
offering
or sale of Registrable Securities pursuant to a Registration Statement under
this Agreement, or otherwise.
6. REPORTS.
With
a view to making available to each Holder the benefits of Rule 144 and any
other
similar rule or regulation of the Commission that may at any time permit such
Holder to sell securities of the Company to the public without registration,
the
Company agrees to:
(a) make
and keep public information available, as those terms are understood and defined
in Rule 144;
(b) file
with the Commission in a timely manner all reports and other documents required
of the Company under the Exchange Act; and
(c) furnish
to such Holder, so long as such Holder owns any Registrable Securities, promptly
upon written request (i) a written statement by the Company, if true, that
it
has complied with the reporting requirements of Rule 144 and the Exchange Act,
(ii) to the extent not publicly available through the Commission’s XXXXX
database, a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company with the
Commission, and (iii) such other information as may be reasonably requested
by
such Holder in connection with such Holder’s compliance with any rule or
regulation of the Commission which permits the selling of any such securities
without registration.
7. MISCELLANEOUS.
(a) Expenses
of Registration.
Except as otherwise provided in the Securities Purchase Agreement, all
reasonable expenses, other than underwriting discounts and commissions and
fees
and expenses of counsel and other advisors to each Holder, incurred in
connection with the registrations, filings or qualifications described herein,
including (without limitation) all registration, filing and qualification fees,
printers’ and accounting fees, the fees and disbursements of counsel for the
Company, and the fees and disbursements incurred in connection with the letter
described in Section
3(g)
of this Agreement, shall be borne by the Company.
(b) Amendment;
Waiver.
Except
as expressly provided herein, neither this Agreement nor any term hereof may
be
amended or waived except pursuant to a written instrument executed by the
Company and the Holders of at least two-thirds (2/3) of the Registrable
Securities into which all of the Notes and Warrants then outstanding are
convertible or exercisable (without regard to any limitation on such conversion
or exercise).
Any waiver or consent shall be effective only in the specific instance and
for
the specific purpose for which given.
(c) Notices.
Any notice, demand or request required or permitted to be given by the Company
or a Holder pursuant to the terms of this Agreement shall be in writing and
shall be deemed delivered (i) when delivered personally or by verifiable
facsimile transmission, unless such delivery is made on a day that is not a
Business Day, in which case such delivery will be deemed to
9
be
made on the next succeeding Business Day and (ii) on the next Business Day
after
timely delivery to a reputable overnight courier, addressed as
follows:
If
to the Company:
000
Xxxxxx Xxxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attn:
Xxxxxx
Xxx
Tel: (000) 000-0000
Fax:
(000)
000-0000
with
a copy (which
shall not constitute notice) to:
Xxxxxxx
Xxxxxxxxx Xxxxx LLP
Suite
1900
000
Xxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Attn: Xxxxxxx
X. Xxxxxx
Tel: (000)
000-0000
Fax: (000)
000-0000
and
if to a Holder, to such address for such party as shall appear on the signature
page of the Securities Purchase Agreement executed by such party, or as shall
be
designated by such party in writing to the other parties hereto in accordance
this Section
7(c).
(d) Assignment.
Upon the transfer of any Note, Warrant or Registrable Securities by a Holder,
the rights of such Holder hereunder with respect to such securities so
transferred shall be assigned automatically to the transferee thereof, and
such
transferee shall thereupon be deemed to be a “Holder” for purposes of this
Agreement, as long as: (i) the Company is, within a reasonable period of time
following such transfer, furnished with written notice of the name and address
of such transferee, (ii) the transferee agrees in writing with the Company
to be
bound by all of the provisions hereof, and (iii) such transfer is made in
accordance with the applicable law and the requirements of the Securities
Purchase Agreement, the Notes or the Warrants, as applicable.
(e) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed
an
original, and all of which together shall be deemed one and the same instrument.
This Agreement, once executed by a party, may be delivered to any other party
hereto by facsimile transmission.
(f) Governing
Law.
This Agreement shall be governed by and construed in accordance with the laws
of
the State of California applicable to contracts made and to be performed
entirely within the State of California.
(g) Holder
of Record.
A person is deemed to be a Holder whenever such person owns or is deemed to
own
of record such Registrable Securities. If the Company receives
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conflicting
instructions, notices or elections from two or more persons with respect to
the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the record owner of such
Registrable Securities.
(h)Entire
Agreement.
This Agreement and the other Transaction Documents constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
and
thereof, superseding all prior agreements and understandings, whether written
or
oral, between or among the parties hereto.
(i)Headings.
The headings in this Agreement are for convenience only and are not to be
considered in construing or interpreting this Agreement.
(j) Third
Party Beneficiaries.
This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of,
nor
may any provision hereof be enforced by, any other person.
[Signature
Page to Follow]
11
IN
WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.
By:
__________________________
Name:
Title:
GEMINI
MASTER FUND, LTD.
By:
Gemini
Strategies, LLC
By: _______________________________
Name:
Title:
IN
WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.
By:
__________________________
Name:
Title:
GREY
K OFFSHORE FUND, LTD.
By:
RNK
Capital LLC
By: _______________________________
Name:
Title:
GREY
K FUND, LP
By: RNK
Capital LLC
By: _______________________________
Name:
Title:
IN
WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.
By:
__________________________
Name:
Title:
[____________________________]
By:
[___________________________]
By: _______________________________
Name:
Title:
