REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
THIS REGISTRATION RIGHTS AGREEMENT (this
“Agreement”), dated as of
July 16, 2020, is entered into by and between AzurRx BioPharma,
Inc., a Delaware corporation (the “Company”), and the
“Investors” named in that
certain Convertible Preferred Stock and Warrant Securities Purchase
Agreement, dated as of the date hereof, by and among the Company
and the Investors (as amended, restated, supplemented or otherwise
modified from time to time, the “Purchase Agreement”).
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Purchase
Agreement.
WHEREAS, the Company has agreed, upon the
terms and subject to the conditions of the Purchase Agreement, to
sell to the Investors Series B Shares, Series B Warrants and, as
applicable, Exchange Warrants, and 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 Investors hereby agree
as follows:
1. DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
a. “Holder” means
individually an Investor, and together, the Investors, any
transferee or assignee thereof to whom an Investor assigns his, her
or 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. “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 or Rule 430B
promulgated by the SEC pursuant to 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.
d. “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 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”).
e. “Registrable Securities”
means all of the Conversion Shares, Warrant Shares and Exchange
Warrant Shares that have been, or which may, from time to time be
issued or become issuable to the Holders under the Purchase
Agreement, the Series B Shares, Series B Warrants, and Exchange
Warrants, and any and all shares of capital stock issued or
issuable with respect to the Registrable Securities, or the
Purchase Agreement and the Series B Shares, Series B Warrants, and
Exchange Warrants 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,
Series B Shares, Series B Warrants, and Exchange Warrants;
provided, however, that a security shall cease to
be a Registrable Security upon the sale of such security pursuant
to a Registration Statement or Rule 144 under the Securities
Act.
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f. “Registration Statement”
means one or more registration statements of the Company covering
the sale of the Registrable Securities pursuant to this
Agreement.
g. “Required Holders” means,
as of any date of determination, the Investors holding a majority
of the Registrable Securities issued and outstanding and/or
issuable upon conversion or exercise of the Series B Shares, Series
B Warrants, and Exchange Warrants as applicable, as of such
date.
h. “Rule 424” means Rule 424
promulgated by the SEC pursuant to the Securities Act, as such Rule
may be amended or interpreted from time to time, or any similar
rule or regulation hereafter adopted by the SEC having
substantially the same purpose and effect as such
Rule.
i. “Stockholder Approval”
means the approval of the Proposal by the Company’s
stockholders as contemplated in Section 8(i) of the Purchase
Agreement.
j. “Trading
Day” means a day on which
the principal Trading Market is open for
trading.
k. “Trading Market” means any
of the following markets or exchanges on which the Common Stock is
listed or quoted for trading on the date in question: the NYSE
American, the Nasdaq Capital Market, the Nasdaq Global Market, the
Nasdaq Global Select Market, or the New York Stock
Exchange (or any successors to any of the foregoing).
2. REGISTRATION.
a. Mandatory Registration. The
Company shall, within ten (10) calendar days from the date of the
Final Closing, file with the SEC a Registration Statement covering
the Registrable Securities, or such amount as otherwise shall be
permitted 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 Holders under Rule 415 under
the Securities Act. Each Holder shall furnish all information
reasonably requested by the Company for inclusion therein. The
Company shall use its reasonable best efforts to have the
Registration Statement and any amendment thereto declared effective
(such date, the “Effective Date”) by the
SEC promptly following the Stockholder Approval, but in no event
later than thirty (30) days after the date of the Stockholder
Approval (or sixty (60) days after the date of the Stockholder
Approval if the SEC conducts a full review of the Registration
Statement) (the “Effectiveness Deadline”).
If the Registration Statement has not been declared effective on or
prior to the Effectiveness Deadline, commencing on the
Effectiveness Deadline the dividend on the Preferred Stock will be
adjusted as described in Section 2(b) of the Certificate of
Designation, with such adjustment applicable until (and not
including) the date upon which the Registration Statement has been
declared effective. The Company shall use reasonable best efforts
to keep the Registration Statement effective pursuant to Rule 415
promulgated under the Securities Act and available for the resale
by the Holders of all of the Registrable Securities covered thereby
at all times until the earlier of (i) the date as of which the
Holders may sell all of the Registrable Securities without
restriction (including any volume or manner-of-sale restrictions
and without current public information) pursuant to Rule 144
promulgated under the Securities Act (assuming that such securities
and any securities issuable upon exercise, conversion or exchange
of which,, or as a dividend upon which, such securities were issued
or are issuable, were at no time held by any affiliate of the
Company) and (ii) the date on which the Holder 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.
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b. Piggy-Back Registrations. If,
at any time following the Stockholder Approval there is not an
effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with
the SEC 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 the Company’s stock
option or other employee benefit plans, then the Company shall
deliver to the Holders a written notice of such determination and,
if within fifteen (15) days after the date of the delivery of such
notice, the Holders shall so request in writing, the Company shall
include in such Registration Statement all or any part of such
Registrable Securities that the Holders request to be registered or
such amount as otherwise shall be permitted 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 Holders under Rule 415 under the Securities Act;
provided, however, that the
Company shall not be required to register any Registrable
Securities pursuant to this Section that are eligible for resale
pursuant to Rule 144 (without volume restrictions or current public
information requirements) promulgated by the SEC pursuant to the
Securities Act or that are the subject of a then effective
Registration Statement.
c. 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 Holder
shall use its reasonable best efforts to comment upon such
Prospectus within three (3) Business Days from the date the Holder
receives the final pre-filing version of such
Prospectus.
d. 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) and Section 2(b)) as soon as
practicable, but in any event not later than twenty (20) 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.
e. 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 Holders 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 until such time as the Staff and the SEC
shall so permit such Registration Statement to become effective and
be used as contemplated in this Agreement. 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(d) 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 Holders. 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 Holders’ obligations) shall be qualified as necessary to
comport with any requirement of the SEC or the Staff as addressed
in this Section
2(e).
f. Notwithstanding
anything to the contrary contained herein but subject to comments
by the SEC, in no event shall the Company be permitted to name any
Holder or affiliate of a Holder as any Underwriter without the
prior written consent of such Holder.
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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.
b. The Company shall
permit the Holders 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. The Holders shall use their 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 each Holder receives the
final version thereof. At the request of a Holder, the Company
shall furnish to such Holder, 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 a
Holder, the Company shall furnish to such Holder, (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 Holder may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus,
as such Holder may reasonably request from time to time in order to
facilitate the disposition of the Registrable Securities owned by
such Holder. For the avoidance of doubt, any filing available to
the Holders via the SEC’s live XXXXX system shall be deemed
“furnished to the Holder” 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 an Holder reasonably
requests, if necessary, (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 a Holder 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 Holder 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 an Holder (or such other number of
copies as such Holder may reasonably request). The Company shall
also promptly notify the Holders in writing 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 (with any filing available to the
Holders via the SEC’s live XXXXX system to be deemed
sufficient notification thereof).
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 Holder 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 Trading 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 Holders 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 Holders may reasonably request
and registered in such names as the Holder 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 a Holder, the Company shall (i) promptly incorporate
in a prospectus supplement or post-effective amendment such
information as such Holder 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.
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 Holders) confirmation that such Registration
Statement has been declared effective by the SEC (with any filing
available to such parties via the SEC’s live XXXXX system to
be deemed sufficient confirmation thereof). Thereafter, if
requested by the Holder at any time, the Company shall require its
counsel to deliver to the Holders 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 Holders 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 Holders of Registrable Securities
pursuant to any Registration Statement.
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4. OBLIGATIONS OF THE
HOLDERS.
a. The Company shall
notify the Holders in writing of the information the Company
reasonably requires from the Holders in connection with any
Registration Statement hereunder. The Holders shall furnish to the
Company such information regarding such Holders, the Registrable
Securities held by them and the intended method of disposition of
the Registrable Securities held by them 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 Holders agree
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 Holders agree
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 Section
3(e), the Holders will immediately discontinue disposition
of Registrable Securities pursuant to any Registration Statement(s)
covering such Registrable Securities until the Holders’
receipt of the copies of the supplemented or amended Prospectus
contemplated by Section
3(f) or the first sentence of Section 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 Holder has entered into a contract for
sale prior to the Holder’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 Holder has not yet
settled.
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 each Holder, each Person, if
any, who controls the Holder, the members, the directors, officers,
partners, employees, agents, representatives of the Holder and each
Person, if any, who controls the Holder 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, or 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
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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) and the agreement with respect to contribution
contained in Section
7: (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 Holder 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 Holder 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
Holder pursuant to Section
9.
b. In connection with
the Registration Statement or any New Registration Statement, each
Holder agrees to indemnify, hold harmless and defend, to the same
extent and in the same manner as is set forth in Section 6(a), the Company, each
of its directors, each of its officers who signs the Registration
Statement or any New Registration Statement, each Person, if any,
who controls the Company within the meaning of the Securities Act
or the Exchange Act (collectively and together with an Indemnified
Person, an “Indemnified Party”),
against any Claim or Indemnified Damages to which any of them may
become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim or Indemnified Damages arise out
of or are based upon any Violation, in each case to the extent, and
only to the extent, that such Violation occurs in reliance upon and
in conformity with written information about such Holder and
furnished to the Company by such Holder expressly for use in
connection with such Registration Statement; and, subject to
Section 6(d), such
Holder will reimburse any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such Claim; provided, however, that the indemnification agreement
contained in this Section
6(b) and the agreement with respect to contribution
contained in Section
7 shall not apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of
such Holder, which consent shall not be unreasonably withheld;
provided,
further, however, that such Holder shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified
Damages as does not exceed the net proceeds to such Holder as a
result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of
such Indemnified Party and shall survive the transfer of the
Registrable Securities by such Holder pursuant to Section 9.
c. 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. It is understood that the indemnifying party
shall not, in connection with any
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proceeding in the
same jurisdiction, be liable for fees or expenses of more than one
separate firm of attorneys at any time for all such Indemnified
Persons or Indemnified Parties. 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, 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.
d. 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.
e. 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.
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 Holders 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 Holders 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 each
Holder so long as the Holder 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
Holder to sell such securities pursuant to Rule 144 without
registration; and
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d. take such
additional action as is requested by a Holder to enable such Holder
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 such Holder
and otherwise fully cooperate with such Holder and such
Holder’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 Holders
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.
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
Required Holders. The Holders may not assign their rights under
this Agreement without the written consent of the Company, other
than to an affiliate of a Holder.
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 the Company and the Required Holders, 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. All notices and
other communications provided for or permitted hereunder shall be
made as set forth in the Purchase Agreement.
c. The
corporate laws of the State of Delaware shall govern all issues
concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed
by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other
than the State of New York. Each party hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts
sitting the State of New York, 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.
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d. This Agreement and
the Transaction Documents 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.
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:
By:
Xxxxx Xxxxxxxxxx
Chief Executive Officer
Chief Executive Officer
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THE HOLDERS:
By:
Name:
Title:
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