REGISTRATION RIGHTS AGREEMENT
Exhibit
10.3
REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated
as of November 20, 2017, by and between SINCERITY APPLIED MATERIALS HOLDINGS
CORP., a Nevada corporation (the "Company"), and AUCTUS FUND, LLC,
a Delaware limited liability company (together with it
permitted assigns, the “Buyer”). Capitalized
terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the equity purchase agreement by
and between the parties hereto, dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to
time, the "Purchase
Agreement").
WHEREAS:
The
Company has agreed, upon the terms and subject to the conditions of
the Purchase Agreement, to sell to the Buyer that certain
convertible promissory note in the principal amount of $112,500.00
(the “Note”), and to induce the
Buyer to enter into the Purchase Agreement, the Company has agreed
to provide certain registration rights under the Securities Act of
1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the "Securities Act"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the
promises and the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby
acknowledged, the Company and the Buyer hereby
agree as follows:
1. DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
a. "Investor"
means the Buyer, any transferee or assignee thereof to whom a Buyer
assigns its rights under this Agreement in accordance with Section
9 and who agrees to become bound by the provisions of this
Agreement, and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement in
accordance with Section 9 and who agrees to become bound by the
provisions of this Agreement.
b. "Person"
means any individual or entity including but not limited to any
corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a
governmental or political subdivision thereof or a governmental
agency.
c. "Register,"
"registered," and
"registration"
refer to a registration effected by preparing and filing one or
more registration statements of the Company in compliance with the
Securities Act and/or pursuant to Rule 415 under the Securities Act
or any successor rule providing for offering securities on a
continuous basis ("Rule
415"), and the declaration or ordering of effectiveness of
such registration statement(s) by the United States Securities and
Exchange Commission (the "SEC").
d. "Registrable
Securities" means all of the shares of Common Stock into
which the Note is convertible into, which have been, or which may,
from time to time be issued, including without limitation all of
the shares of common stock which have been issued or will be issued
to the Investor under the Purchase Agreement (without regard to any
limitation or restriction on purchases), shares of common stock
issued to the Investor as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise,
without regard to any limitation on purchases under the Purchase
Agreement.
e. "Registration
Statement" means one or more registration statements of the
Company covering only the sale of the Registrable
Securities.
2. REGISTRATION.
a.
Mandatory
Registration. The Company shall, within sixty (60) calendar
days from the date hereof, file with the SEC an initial
Registration Statement covering the maximum number of Registrable
Securities as shall be permitted (in any event, not less than the
Reserved Amount (as defined in the Note) initially) to be included
thereon in accordance with applicable SEC rules, regulations and
interpretations so as to permit the resale of such Registrable
Securities by the Investor, including but not limited to under Rule
415 under the Securities Act at then prevailing market prices (and
not fixed prices), as mutually determined by both the Company and
the Investor in consultation with their respective legal counsel,
subject to the aggregate number of authorized shares of the
Company’s Common Stock then available for issuance in its
Certificate of Incorporation. The initial Registration Statement
shall register only the Registrable Securities unless signed
written consent from the Investor is obtained by the Company. The
Investor and its counsel shall have a reasonable opportunity to
review and comment upon such Registration Statement and any
amendment or supplement to such Registration Statement and any
related prospectus prior to its filing with the SEC, and the
Company shall give due consideration to all reasonable comments.
The Investor shall furnish all information reasonably requested by
the Company for inclusion therein. The Company shall have the
Registration Statement and any amendment declared effective by the
SEC at the earliest possible date (in any event within one hundred
eighty (180) calendar days from the date hereof). The Company shall
keep the Registration Statement effective, including but not
limited to pursuant to Rule 415 promulgated under the Securities
Act and available for the resale by the Investor of all of the
Registrable Securities covered thereby at all times until the
earlier of (i) the date as of which the Investor may sell all of
the Registrable Securities without restriction pursuant to Rule 144
promulgated under the Securities and (ii) the date on which the
Investor shall have sold all the Registrable Securities covered
thereby (the "Registration
Period"). The Registration Statement (including any
amendments or supplements thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein, or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
b. Rule
424 Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC,
pursuant to Rule 424 promulgated under the Securities Act, the
prospectus and prospectus supplements, if any, to be used in
connection with sales of the Registrable Securities under the
Registration Statement. The Investor and its counsel shall have a
reasonable opportunity to review and comment upon such prospectus
prior to its filing with the SEC, and the Company shall give due
consideration to all such comments. The Investor shall use its
reasonable best efforts to comment upon such prospectus within one
(1) Business Day from the date the Investor receives the final
pre-filing version of such prospectus.
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c. Sufficient
Number of Shares Registered. In the event the number of
shares available under the Registration Statement is insufficient
to cover all of the Registrable Securities, the Company shall amend
the Registration Statement or file a new Registration Statement (a
“New Registration
Statement”), so as to cover all of such Registrable
Securities (subject to the limitations set forth in Section 2(a))
as soon as practicable, but in any event not later than ten (10)
Business Days after the necessity therefor arises, subject to any
limits that may be imposed by the SEC pursuant to Rule 415 under
the Securities Act. The Company shall use it reasonable best
efforts to cause such amendment and/or New Registration Statement
to become effective as soon as practicable following the filing
thereof. In the event that any of the Registrable Securities are
not included in the Registration Statement, or have not been
included in any New Registration Statement and the Company files
any other registration statement under the Securities Act (other
than on Form X-0, Xxxx X-0, or with respect to other employee
related plans or rights offerings) (“Other Registration
Statement”) then the Company shall include such
remaining Registrable Securities in such Other Registration
Statement.
d.
Offering. If the
staff of the SEC (the “Staff”) or the SEC seeks
to characterize any offering pursuant to a Registration Statement
filed pursuant to this Agreement as constituting an offering of
securities that does not permit such Registration Statement to
become effective and be used for resales by the Investor under Rule
415 at then-prevailing market prices (and not fixed prices), or if
after the filing of the initial Registration Statement with the SEC
pursuant to Section 2(a), the Company is otherwise required by the
Staff or the SEC to reduce the number of Registrable Securities
included in such initial Registration Statement, then the Company
shall reduce the number of Registrable Securities to be included in
such initial Registration Statement (with the prior consent, which
shall not be unreasonably withheld, of the Investor and its legal
counsel as to the specific Registrable Securities to be removed
therefrom) until such time as the Staff and the SEC shall so permit
such Registration Statement to become effective and be used as
aforesaid. In the event of any reduction in Registrable Securities
pursuant to this paragraph, the Company shall file one or more New
Registration Statements in accordance with Section 2(c) until such
time as all Registrable Securities have been included in
Registration Statements that have been declared effective and the
prospectus contained therein is available for use by the Investor.
Notwithstanding any provision herein or in the Purchase Agreement
to the contrary, the Company’s obligations to register
Registrable Securities (and any related conditions to the
Investor’s obligations) shall be qualified as necessary to
comport with any requirement of the SEC or the Staff as addressed
in this Section 2(d).
3. RELATED
OBLIGATIONS.
With
respect to the Registration Statement and whenever any Registrable
Securities are to be registered pursuant to Section 2 including on
any New Registration Statement, the Company shall use its
reasonable best efforts to effect the registration of the
Registrable Securities in accordance with the intended method of
disposition thereof and, pursuant thereto, the Company shall have
the following obligations:
a. The
Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to any
registration statement and the prospectus used in connection with
such registration statement, which prospectus is to be filed
pursuant to Rule 424 promulgated under the Securities Act, as may
be necessary to keep the Registration Statement or any New
Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities of the Company covered by the
Registration Statement or any New Registration Statement until such
time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the
seller or sellers thereof as set forth in such registration
statement.
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b. The
Company shall permit the Investor to review and comment upon the
Registration Statement or any New Registration Statement and all
amendments and supplements thereto at least two (2) Business Days
prior to their filing with the SEC, and not file any document in a
form to which Investor reasonably objects. The Investor shall use
its reasonable best efforts to comment upon the Registration
Statement or any New Registration Statement and any amendments or
supplements thereto within two (2) Business Days from the date the
Investor receives the final version thereof. The Company shall
furnish to the Investor, without charge any correspondence from the
SEC or the staff of the SEC to the Company or its representatives
relating to the Registration Statement or any New Registration
Statement.
c. Upon
request of the Investor, the Company shall furnish to the Investor,
(i) promptly after the same is prepared and filed with the SEC, at
least one copy of such registration statement and any amendment(s)
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits, (ii)
upon the effectiveness of any registration statement, a copy of the
prospectus included in such registration statement and all
amendments and supplements thereto (or such other number of copies
as the Investor may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus,
as the Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned
by the Investor. For the avoidance of doubt, any filing available
to the Investor via the SEC’s live XXXXX system shall be
deemed “furnished to the Investor”
hereunder.
d. The
Company shall use reasonable best efforts to (i) register and
qualify the Registrable Securities covered by a registration
statement under such other securities or "blue sky" laws of such
jurisdictions in the United States as the Investor reasonably
requests, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for
sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section
3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process
in any such jurisdiction. The Company shall promptly notify the
Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities
for sale under the securities or "blue sky" laws of any
jurisdiction in the United States or its receipt of actual notice
of the initiation or threatening of any proceeding for such
purpose.
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e. As
promptly as practicable after becoming aware of such event or
facts, the Company shall notify the Investor in writing of the
happening of any event or existence of such facts as a result of
which the prospectus included in any 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, in light of the
circumstances under which they were made, not misleading, and
promptly prepare a supplement or amendment to such registration
statement to correct such untrue statement or omission, and deliver
a copy of such supplement or amendment to the Investor (or such
other number of copies as the Investor may reasonably request). The
Company shall also promptly notify the Investor in writing (i) when
a prospectus or any prospectus supplement or post-effective
amendment has been filed, and when a registration statement or any
post-effective amendment has become effective (notification of such
effectiveness shall be delivered to the Investor by email or
facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements
to any registration statement or related prospectus or related
information, and (iii) of the Company's reasonable determination
that a post-effective amendment to a registration statement would
be appropriate.
f. The
Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of
any registration statement, or the suspension of the qualification
of any Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and to
notify the Investor of the issuance of such order and the
resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such
purpose.
g. The
Company shall (i) cause all the Registrable Securities to be listed
on each securities exchange on which securities of the same class
or series issued by the Company are then listed, if any, if the
listing of such Registrable Securities is then permitted under the
rules of such exchange, or (ii) secure designation and quotation of
all the Registrable Securities on the Principal Market. The Company
shall pay all fees and expenses in connection with satisfying its
obligation under this Section.
h. The
Company shall cooperate with the Investor to facilitate the timely
preparation and delivery of certificates (not bearing any
restrictive legend) representing the Registrable Securities to be
offered pursuant to any registration statement and enable such
certificates to be in such denominations or amounts as the Investor
may reasonably request and registered in such names as the Investor
may request.
i. The
Company shall at all times provide a transfer agent and registrar
with respect to its Common Stock.
j. If
reasonably requested by the Investor, the Company shall (i)
immediately incorporate in a prospectus supplement or
post-effective amendment such information as the Investor believes
should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold,
the purchase price being paid therefor and any other terms of the
offering of the Registrable Securities; (ii) make all required
filings of such prospectus supplement or post-effective amendment
as soon as practicable upon notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any
registration statement.
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k. The
Company shall use its reasonable best efforts to cause the
Registrable Securities covered by any registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of
such Registrable Securities.
l. Within
one (1) Business Day after any registration statement which
includes the Registrable Securities is ordered effective by the
SEC, the Company shall deliver, and shall cause legal counsel for
the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investor) confirmation that such
registration statement has been declared effective by the SEC in
the form attached hereto as Exhibit A. Thereafter, if
requested by the Buyer at any time, the Company shall require its
counsel to deliver to the Buyer a written confirmation whether or
not the effectiveness of such registration statement has lapsed at
any time for any reason (including, without limitation, the
issuance of a stop order) and whether or not the registration
statement is current and available to the Buyer for sale of all of
the Registrable Securities.
m. The
Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to any registration statement.
4. OBLIGATIONS
OF THE INVESTOR.
a.
The Company shall notify the Investor in writing of the information
the Company reasonably requires from the Investor in connection
with any registration statement hereunder. The Investor shall
furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request.
b. The
Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and
filing of any registration statement hereunder.
c. The
Investor agrees that, upon receipt of any notice from the Company
of the happening of any event or existence of facts of the kind
described in Section 3(f) or the first sentence of 3(e), the
Investor will immediately discontinue disposition of Registrable
Securities pursuant to any registration statement(s) covering such
Registrable Securities until the Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section
3(f) or the first sentence of 3(e). Notwithstanding anything to the
contrary, the Company shall cause its transfer agent to promptly
deliver shares of Common Stock without any restrictive legend in
accordance with the terms of the Purchase Agreement in connection
with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the
Investor's receipt of a notice from the Company of the happening of
any event of the kind described in Section 3(f) or the first
sentence of Section 3(e) and for which the Investor has not yet
settled.
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5. EXPENSES
OF REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions,
incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees,
printers and accounting fees, and fees and disbursements of counsel
for the Company, shall be paid by the Company.
6. INDEMNIFICATION.
a. To
the fullest extent permitted by law, the Company will, and hereby
does, indemnify, hold harmless and defend the Investor, each
Person, if any, who controls the Investor, the members, the
directors, officers, partners, employees, agents, representatives
of the Investor and each Person, if any, who controls the Investor
within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (each, an
"Indemnified
Person"), against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, attorneys' fees,
amounts paid in settlement or expenses, joint or several,
(collectively, "Claims") incurred in
investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or
other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an indemnified party is or may be a
party thereto ("Indemnified Damages"), to which
any of them may become subject insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact in the Registration
Statement, any New Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other "blue
sky" laws of any jurisdiction in which Registrable Securities are
offered ("Blue Sky
Filing"), or the omission or alleged omission to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) any untrue statement or
alleged untrue statement of a material fact contained in the final
prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not
misleading, (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any other law, including,
without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to the Registration Statement or
any New Registration Statement or (iv) any material violation by
the Company of this Agreement (the matters in the foregoing clauses
(i) through (iv) being, collectively, "Violations"). The Company shall
reimburse each Indemnified Person promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything
to the contrary contained herein, the indemnification agreement
contained in this Section 6(a): (i) shall not apply to a Claim by
an Indemnified Person arising out of or based upon a Violation
which occurs in reliance upon and in conformity with information
about the Investor furnished in writing to the Company by such
Indemnified Person expressly for use in connection with the
preparation of the Registration Statement, any New Registration
Statement or any such amendment thereof or supplement thereto, if
such prospectus was timely made available by the Company pursuant
to Section 3(c) or Section 3(e); (ii) with respect to any
superseded prospectus, shall not inure to the benefit of any such
person from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the superseded
prospectus was corrected in the revised prospectus, as then amended
or supplemented, if such revised prospectus was timely made
available by the Company pursuant to Section 3(c) or Section 3(e),
and the Indemnified Person was promptly advised in writing not to
use the incorrect prospectus prior to the use giving rise to a
violation and such Indemnified Person, notwithstanding such advice,
used it; (iii) shall not be available to the extent such Claim is
based on a failure of the Investor to deliver or to cause to be
delivered the prospectus made available by the Company, if such
prospectus was timely made available by the Company pursuant to
Section 3(c) or Section 3(e); and (iv) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent
shall not be unreasonably withheld. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of
the Registrable Securities by the Investor pursuant to Section
9.
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b. Promptly
after receipt by an Indemnified Person or Indemnified Party under
this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding)
involving a Claim, such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party similarly noticed, to assume control
of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified
Party, as the case may be; provided, however, that an Indemnified
Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party
would be inappropriate due to actual or potential differing
interests between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding. The
Indemnified Party or Indemnified Person shall cooperate fully with
the indemnifying party in connection with any negotiation or
defense of any such action or claim by the indemnifying party and
shall furnish to the indemnifying party all information reasonably
available to the Indemnified Party or Indemnified Person which
relates to such action or claim. The indemnifying party shall keep
the Indemnified Party or Indemnified Person fully apprised at all
times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding
effectuated without its written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the
consent of the Indemnified Party or Indemnified Person, consent to
entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party
or Indemnified Person of a release from all liability in respect to
such claim or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights
of the Indemnified Party or Indemnified Person with respect to all
third parties, firms or corporations relating to the matter for
which indemnification has been made. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such
action.
c. The
indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
d. The
indemnity agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and
(ii) any liabilities the indemnifying party may be subject to
pursuant to the law.
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7. CONTRIBUTION.
To the
extent any indemnification by an indemnifying party is prohibited
or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would
otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however, that: (i) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any seller of Registrable Securities who was
not guilty of fraudulent misrepresentation; and (ii) contribution
by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale
of such Registrable Securities.
8. REPORTS
AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a
view to making available to the Investor the benefits of Rule 144
promulgated under the Securities Act or any other similar rule or
regulation of the SEC that may at any time permit the Investor to
sell securities of the Company to the public without registration
("Rule 144"), the
Company agrees, at the Company’s sole expense,
to:
a. make
and keep public information available, as those terms are
understood and defined in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange
Act so long as the Company remains subject to such requirements and
the filing of such reports and other documents is required for the
applicable provisions of Rule 144;
c. furnish
to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting and or disclosure
provisions of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably
requested to permit the Investor to sell such securities pursuant
to Rule 144 without registration; and
d.
take such additional action as is requested by the Investor to
enable the Investor to sell the Registrable Securities pursuant to
Rule 144, including, without limitation, delivering all such legal
opinions, consents, certificates, resolutions and instructions to
the Company’s Transfer Agent as may be requested from time to
time by the Investor and otherwise fully cooperate with Investor
and Investor’s broker to effect such sale of securities
pursuant to Rule 144.
The
Company agrees that damages may be an inadequate remedy for any
breach of the terms and provisions of this Section 8 and that
Investor shall, whether or not it is pursuing any remedies at law,
be entitled to equitable relief in the form of a preliminary or
permanent injunctions, without having to post any bond or other
security, upon any breach or threatened breach of any such terms or
provisions.
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9.
ASSIGNMENT OF REGISTRATION
RIGHTS.
The
Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Investor.
10.
AMENDMENT OF REGISTRATION
RIGHTS.
No
provision of this Agreement may be amended or waived by the parties
from and after the date that is one Business Day immediately
preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, no provision of
this Agreement may be (i) amended other than by a written
instrument signed by both parties hereto or (ii) waived other than
in a written instrument signed by the party against whom
enforcement of such waiver is sought. Failure of any party to
exercise any right or remedy under this Agreement or otherwise, or
delay by a party in exercising such right or remedy, shall not
operate as a waiver thereof.
11. MISCELLANEOUS.
a. A
Person is deemed to be a holder of Registrable Securities whenever
such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives 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 registered
owner of such Registrable Securities.
b.
Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile or email; or (iii) one (1) Business Day after deposit
with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The
addresses for such communications shall be:
If to
the Company, to:
Level
4, 00 Xxxxx Xxxxxx
Xxxxx
Xxxxx, Xxxxxxxxx XXX 0000
e-mail:
xxxx@xxxxxxxxxxxxxxxxx.xxx
If to
the Investor:
AUCTUS FUND, LLC
000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000
Attn:
Xxx Xxxxxx
Facsimile:
(000) 000-0000
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or at
such other address and/or facsimile number and/or to the attention
of such other person as the recipient party has specified by
written notice given to each other party three (3) Business Days
prior to the effectiveness of such change. Written confirmation of
receipt (A) given by the recipient of such notice, consent, waiver
or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine or email account
containing the time, date, recipient facsimile number or email
address, as applicable, and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized
overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
c. The
corporate laws of the State of Nevada shall govern all issues
concerning this Agreement. All other questions concerning the
construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of
Nevada, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of Nevada or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Nevada. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting the Massachusetts, 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 suit, action or
proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of
such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
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. If
any provision of this Agreement shall be invalid or unenforceable
in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of
any provision of this Agreement in any other jurisdiction.
EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
d. This
Agreement and the Purchase Agreement constitute the entire
agreement among the parties hereto with respect to the subject
matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred
to herein and therein. This Agreement and the Purchase Agreement
supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and
thereof.
e. Subject
to the requirements of Section 9, this Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns
of each of the parties hereto.
f. The
headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning
hereof.
11
g. This
Agreement may be executed in identical counterparts, each of which
shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile
transmission or by e-mail in a “.pdf” format data file
of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
h. Each
party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
i. The
language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any
party.
j. This
Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns, and is not for
the benefit of, nor may any provision hereof be enforced by, any
other Person.
*
* * * * *
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed as of day and year first
above written.
THE COMPANY:
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By:
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/s/
Xxxxx Xxxxx
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Name: XXXXX
XXXXX
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Title:
CHIEF EXECUTIVE OFFICER
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INVESTOR:
AUCTUS FUND, LLC
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By:
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/s/ Xxx Xxxxxx
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Name:
XXX XXXXXX
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Title:
MANAGING DIRECTOR
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