REGISTRATION RIGHTS AGREEMENT
Exhibit 10.29
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into by and
among BIOHEART, INC., a Florida corporation (the “Company” or “Bioheart”), and the
persons who have signed a signature page(s) hereto (each, an “Investor” and collectively,
the “Investors”).
WHEREAS, pursuant to and in accordance with the terms of those certain Subscription
Agreements, by and between the Company and each Investor (collectively, the “Subscription
Agreements”), each of the Investors have expressed a desire to purchase from the Company, upon
the terms and subject to the conditions set forth in the subject Subscription Agreement, that
number of Units (the “Units”) set forth opposite such Investor’s name on the signature page
to the subject Subscription Agreement, which Units are offered to the Investors pursuant to the
offering (the “Offering”) contemplated by the Term Sheet, attached as Exhibit A to
the Subscription Agreements;
WHEREAS, each Unit consists of ten (10) shares (the “Shares”) of the Common Stock (as
defined below) and one (1) warrant to purchase three (3) shares of the Common Stock (the
“Warrant”); and
WHEREAS, the Company and the Investors desire to enter into an agreement granting the
Investors certain registration rights in connection with their ownership of the Shares and Warrants
(including the shares of the Common Stock into which such Warrants are exercisable).
NOW, THEREFORE, in consideration of the promises and mutual agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall have the
following respective meanings:
“Blackout Period” means, with respect to a registration, a period, in each case
commencing on the day immediately after the Company notifies the Investors that they are required,
because of the occurrence of an event of the kind described in Section 4(f) hereof, to suspend
offers and sales of Registrable Securities during which the Company, in the good faith judgment of
its Board of Directors, determines (because of the existence of, or in anticipation of, any
acquisition, financing activity, or other transaction involving the Company, or the unavailability
for reasons beyond the Company’s control of any required financial statements, disclosure of
information which is in its best interest not to publicly disclose, or any other event or condition
of similar significance to the Company) that the registration and distribution of the Registrable
Securities to be covered by such Registration Statement, if any, would be seriously detrimental to
the Company and its stockholders and ending on the earlier of (1) the date upon which the material
non-public information commencing the Blackout Period is disclosed to the public or ceases to be
material and (2) such time as the Company notifies the selling Holders that sales pursuant to such
Registration Statement or a new or amended Registration Statement may resume.
“Business Day” means any day of the year, other than a Saturday, Sunday, or other day
on which the Commission is required or authorized to close.
“Commission” means the U. S. Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
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“Common Stock” means the common stock, par value $0.001 per share, of the Company and
any and all shares of capital stock or other equity securities of: (i) the Company which are added
to or exchanged or substituted for the Common Stock by reason of the declaration of any stock
dividend or stock split, the issuance of any distribution or the reclassification, readjustment,
recapitalization or other such modification of the capital structure of the Company; and (ii) any
other corporation, now or hereafter organized under the laws of any state or other governmental
authority, with which the Company is merged, which results from any consolidation or reorganization
to which the Company is a party, or to which is sold all or substantially all of the shares or
assets of the Company, if immediately after such merger, consolidation, reorganization or sale, the
Company or the stockholders of the Company own equity securities having in the aggregate more than
50% of the total voting power of such other corporation.
“Effective Date” means the date of the final closing of the Offering.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Family Member” means (a) with respect to any individual, such individual’s spouse,
any descendants (whether natural or adopted), any trust all of the beneficial interests of which
are owned by any of such individuals or by any of such individuals together with any organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or limited liability company, all of
the equity interests of which are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of the beneficial interests of such
trust.
“Holder” means each Investor or any such Investor’s successors and Permitted Assignees
who acquire rights in accordance with this Agreement with respect to any Registrable Securities
directly or indirectly from an Investor or from any Permitted Assignee.
“Majority of the Holders” means at any time Holders representing a majority of the
Registrable Securities.
“Permitted Assignee” means (a) with respect to a partnership, its partners or former
partners in accordance with their partnership interests, (b) with respect to a corporation, its
shareholders in accordance with their interest in the corporation, (c) with respect to a limited
liability company, its members or former members in accordance with their interest in the limited
liability company, (d) with respect to an individual, any Family Member of such party or (e) an
entity that is controlled by, controls, or is under common control with a transferor.
“Piggyback Registration” means, in any registration of Common Stock referenced in
Section 3(a) of this Agreement, the right of each Holder to include the Registrable Securities of
such Holder in such registration.
The terms “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such registration
statement.
“Registrable Common Shares” means the Shares (and not including the Registrable
Warrant Shares) but excluding (i) any Shares that have been publicly sold or are eligible be sold
under the Securities Act pursuant to Rule 144 of the Securities Act during any ninety (90) day
period; (ii) any Shares sold by a person in a transaction pursuant to a registration statement
filed under the Securities Act, or (iii) any Shares that are at the time subject to an effective
registration statement under the Securities Act.
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“Registrable Securities” means the Registrable Common Shares together with the
Registrable Warrant Shares.
“Registrable Warrant Shares” means the shares of Common Stock issued or issuable to
each Investor upon exercise of the Warrants (the “Warrant Shares”) but excluding (i) any Warrant
Shares that have been publicly sold or are eligible to be sold under the Securities Act pursuant to
Rule 144 of the Securities Act during any ninety (90) day period; (ii) any Warrant Shares sold by a
person in a transaction pursuant to a registration statement filed under the Securities Act, or
(iii) any Warrant Shares that are at the time subject to an effective registration statement under
the Securities Act.
“Registration Statement” has the meaning ascribed to such term in Section 3(a) hereof.
“Rule 145” means Rule 145 promulgated by the Commission under the Securities Act, as
such rule may be amended or supplemented from time to time, or any similar successor rule that may
be promulgated by the Commission.
“Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as
such rule may be amended or supplemented from time to time, or any similar successor rule that may
be promulgated by the Commission.
“Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as
such rule may be amended or supplemented from time to time, or any similar successor rule that may
be promulgated by the Commission.
“Securities Act” means the Securities Act of 1933, as amended, or any similar federal
statute promulgated in replacement thereof, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
“Shares” has the meaning ascribed to such term in the recitals of this Agreement.
“Term” has the meaning ascribed to such term in Section 2 hereof.
“Warrants” has the meaning ascribed to such term in the recitals of this Agreement.
2. Term. The term (the “Term”) of this Agreement shall commence on the Effective
Date and terminate on the earlier of: (i) the date that the Warrants are no longer exercisable and
(ii) the date on which all shares of Registrable Securities held or entitled to be held upon
exercise of the Warrants by the Holders are eligible to be sold under Rule 144.
3. Registration.
(a) Piggyback Registration. If at any time during the Term of this Agreement, the
Company proposes to register for sale for cash any of its Common Stock, for its own account or for
the account of others (other than the Holders), under the Securities Act on any form for
registration thereunder (the “Registration Statement”), other than (i) a registration
relating solely to employee benefit plans or securities issued or issuable to employees,
consultants (to the extent the securities owned or to be owned by such consultants could be
registered on Form S-8) or any of their Family Members (including a registration on Form S-8) or
(ii) a registration relating solely to a Securities Act Rule 145 transaction or a registration on
Form S-4 in connection with a merger, acquisition, divestiture, reorganization or similar event,
the Company shall promptly (and in no event less than twenty (20) calendar days prior to the filing
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of such Registration Statement) give written notice thereof to the Holders (the “Company
Notice”). If a Holder wishes to include any Registrable Securities as a Piggyback Registration
in the subject Registration Statement, such Holder shall provide written notice to the Company
specifying the number of Registrable Securities desired to be included (an “Inclusion
Notice”) within ten (10) calendar days of the date of the Company Notice (the “Inclusion
Period”). Provided that, during the Inclusion Period, the Company receives Inclusion Notices
requesting the Piggyback Registration of at least a majority of the Registrable Securities, the
Company shall include as a Piggyback Registration all of the Registrable Securities specified in
the Inclusion Notices. Notwithstanding the foregoing, the Company may, without the consent of any
of the Holders, withdraw such Registration Statement prior to its becoming effective if the Company
or such other shareholders have elected to abandon the proposal to register the securities proposed
to be registered thereby. The Company shall be obligated to file and cause the effectiveness of
only one (1) Piggyback Registration.
(b) Underwriting. If a Piggyback Registration is for a registered public offering
that is to be made by an underwriting, the Company shall, in the Company Notice, so advise the
Holders of the Registrable Securities eligible for inclusion in such Registration Statement
pursuant to Section 3(a). In such event, in addition to the conditions set forth in Section 3(a),
the right of any Holder to Piggyback Registration shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to sell any of their Registrable
Securities through such underwriting shall (together with the Company and any other shareholders of
the Company selling their securities through such underwriting) enter into an underwriting
agreement in customary form with the underwriter selected for such underwriting by the Company or
the selling shareholders, as applicable. Notwithstanding any other provision of this Section 3, if
the underwriter or the Company determines that marketing factors require a limitation on the number
of shares of Common Stock or the amount of other securities to be underwritten, the underwriter may
exclude some or all of the Registrable Securities from such registration and underwriting. The
Company shall so advise all Holders (except those Holders who failed to timely elect to include
their Registrable Securities through such underwriting or have indicated to the Company their
decision not to do so), and indicate to each such Holder the number of shares of Registrable
Securities that may be included in the registration and underwriting, if any. The number of shares
that may be included in the registration and underwriting shall be allocated first to the Company
and then, subject to obligations and commitments existing as of the date hereof, to all selling
shareholders, including the Holders, who have requested to sell in the registration on a pro rata
basis according to the number of shares requested to be included therein. In the event that the
underwriter or Company determines to exclude more than 50.0% of the Registrable Securities from the
registration and underwriting in accordance with this Section 3(b), such registration and
underwriting shall not be deemed to be a Piggyback Registration for purposes of the last sentence
of Section 3(a) above.
No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing
limitation shall be included in such registration. If any Holder disapproves of the terms of any
such underwriting, such Holder may elect to withdraw such Holder’s Registrable Securities therefrom
by delivering a written notice to the Company and the underwriter. The Registrable Securities so
withdrawn from such underwriting shall also be withdrawn from such registration; provided,
however, that, if by the withdrawal of such Registrable Securities, a greater number of
Registrable Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall offer to all Holders
who have included Registrable Securities in the registration the right to include additional
Registrable Securities pursuant to the terms and limitations set forth herein in the same
proportion used above in determining the underwriter limitation.
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4. Registration Procedures The Company will keep each Holder who has delivered an
Inclusion Notice reasonably advised as to the filing and effectiveness of the Registration
Statement. At its expense
with respect to the Registration Statement, the Company will:
(a) use its commercially reasonable efforts to cause such Registration Statement to become
effective and remain effective for a period of six (6) months or for such shorter period ending on
the earlier to occur of (i) the sale of all Registrable Common Shares and (ii) the availability
under Rule 144 for the Holders to sell all of the Registrable Common Shares in any ninety (90) day
period (the “Effectiveness Period”). Each Holder agrees to furnish to the Company a
completed questionnaire in the form provided by the Company (a “Selling Shareholder
Questionnaire”) not later than three (3) Business Days following the date on which such Holder
receives draft materials of such Registration Statement;
(b) if the Registration Statement is subject to review by the Commission, promptly respond to
all comments and diligently pursue resolution of any comments to the satisfaction of the
Commission;
(c) prepare and file with the Commission such amendments and supplements to such Registration
Statement as may be necessary to keep such Registration Statement effective during the
Effectiveness Period;
(d) furnish, without charge, to each Holder of Registrable Common Shares covered by such
Registration Statement (i) such number of copies of such Registration Statement (including any
exhibits thereto other than exhibits incorporated by reference) and each amendment and supplement
thereto, as such Holder may reasonably request, (ii) such number of copies of the prospectus
included in such Registration Statement (including each preliminary prospectus and any other
prospectus filed under Rule 424 of the Securities Act) as such Holder may reasonably request, in
conformity with the requirements of the Securities Act, and (iii) such other documents as such
Holder may require to consummate the disposition of the Registrable Common Shares owned by such
Holder, but only during the Effectiveness Period;
(e) use its commercially reasonable efforts to register or qualify such registration under
such other applicable securities laws of such jurisdictions as any Holder of Registrable Common
Shares covered by such Registration Statement reasonably requests and as may be necessary for the
marketability of the Registrable Common Shares (such request to be made by the time the applicable
Registration Statement is deemed effective by the Commission) and do any and all other acts and
things necessary to enable such Holder to consummate the disposition in such jurisdictions of the
Registrable Common Shares owned by such Holder; provided, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this paragraph, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such jurisdiction;
(f) at any time during the period commencing on the filing of the Registration Statement and
ending on the last day of the Effectiveness Period, notify each Holder of Registrable Common Shares
covered by such Registration Statement, as promptly as practicable after becoming aware of such
event, of the happening of any event, which comes to the Company’s attention, that will after the
occurrence of such event cause the prospectus included in such Registration Statement, if not
amended or supplemented, to contain an untrue statement of a material fact or an omission to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading. In such event, the Company shall promptly thereafter prepare and furnish to such
Holder a supplement or amendment to such prospectus (or prepare and file appropriate reports under
the Exchange Act) so that, as thereafter delivered to the purchasers of such Registrable Common
Shares, such prospectus shall not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not
misleading, unless suspension of the use of such prospectus otherwise is authorized herein or in
the event of a Blackout Period, in which case no supplement or amendment need
be furnished (or Exchange Act filing made) until the termination of such suspension or Blackout
Period;
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(g) use its reasonable best efforts to comply, and continue to comply during the Effectiveness
Period, in all material respects with the Securities Act and the Exchange Act and with all
applicable rules and regulations of the Commission with respect to the disposition of all
securities covered by such Registration Statement;
(h) as promptly as practicable after becoming aware of such event, notify each Holder of
Registrable Common Shares being offered or sold pursuant to the Registration Statement of the
issuance by the Commission of any stop order or other suspension of effectiveness of the
Registration Statement;
(i) use its commercially reasonable efforts to cause all the Registrable Common Shares covered
by the Registration Statement to be quoted on the NASDAQ Capital Market or such other principal
securities market on which securities of the same class or series issued by the Company are then
listed or traded;
(j) provide a transfer agent and registrar, which may be a single entity, for the shares of
Common Stock at all times;
(k) cooperate with the Holders of Registrable Common Shares being offered pursuant to the
Registration Statement to issue and deliver, or cause its transfer agent to issue and deliver,
certificates representing Registrable Common Shares to be offered pursuant to the Registration
Statement within a reasonable time after the delivery of certificates representing the Registrable
Common Shares to the transfer agent or the Company, as applicable, and enable such certificates to
be in such denominations or amounts as the Holders may reasonably request and registered in such
names as the Holders may request; and
(l) during the Effectiveness Period, refrain from bidding for or purchasing any Common Stock
or any right to purchase Common Stock or attempting to induce any person to purchase any such
security or right if such bid, purchase or attempt would in any way limit the right of the Holders
to sell Registrable Common Shares by reason of the limitations set forth in Regulation M of the
Exchange Act.
5. Suspension of Offers and Sales. Each Holder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section 4(f) hereof or of
the commencement of a Blackout Period, such Holder shall discontinue the disposition of Registrable
Common Shares included in the Registration Statement until such Holder’s receipt of the copies of
the supplemented or amended prospectus contemplated by Section 4(f) hereof or notice of the end of
the Blackout Period, and, if so directed by the Company, such Holder shall deliver to the Company
(at the Company’s expense) all copies (including, without limitation, any and all drafts), other
than permanent file copies, then in such Holder’s possession, of the prospectus covering such
Registrable Common Shares current at the time of receipt of such notice.
6. Registration Expenses. The Company shall pay all expenses in connection with any
registration obligation provided herein, including, without limitation, all registration, filing,
stock exchange fees, printing expenses, all fees and expenses of complying with applicable
securities laws, and the fees and disbursements of counsel for the Company and of its independent
accountants; provided, that, in any underwritten registration, each party shall pay for its
own underwriting discounts and commissions and transfer taxes. Except as provided in this Section
and Section 9, the Company shall not be responsible for the expenses of any attorney or other
advisor employed by a Holder.
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7. Assignment of Rights. No Holder may assign its rights under this Agreement to any party
without
the prior written consent of the Company; provided, however, that any Holder may
assign its rights under this Agreement without such consent to a Permitted Assignee as long as (a)
such transfer or assignment is effected in accordance with applicable securities laws; (b) such
transferee or assignee agrees in writing to become subject to the terms of this Agreement; (c) such
transfer or assignment is effected in accordance with the Warrant Agreement evidencing the
Warrants; and (d) such Holder notifies the Company in writing of such transfer or assignment,
stating the name and address of the transferee or assignee and identifying the Registrable
Securities with respect to which such rights are being transferred or assigned.
8. Information by Holder. Holders included in any registration shall furnish to the Company
such information as the Company may reasonably request in writing regarding such Holders and the
distribution proposed by such Holders including an updated Selling Shareholder Questionnaire if
requested by the Company.
9. Indemnification.
(a) In the event of the offer and sale of Registrable Securities under the Securities Act, the
Company shall, and hereby does, indemnify and hold harmless, to the fullest extent permitted by
law, each Holder, its directors, officers, partners, each other person who participates as an
underwriter in the offering or sale of such securities, and each other person, if any, who controls
or is under common control with such Holder or any such underwriter within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities, joint or several, and
expenses to which the Holder or any such director, officer, partner or underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement of any material fact contained
in any registration statement prepared and filed by the Company under which Registrable Securities
were registered under the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any omission to state
therein a material fact required to be stated or necessary to make the statements therein in light
of the circumstances in which they were made not misleading, and the Company shall reimburse the
Holder, and each such director, officer, partner, underwriter and controlling person for any legal
or any other expenses reasonably incurred by them in connection with investigating, defending or
settling any such loss, claim, damage, liability, action or proceeding; provided, that such
indemnity agreement found in this Section 9(a) shall in no event exceed the net proceeds from the
Offering, received by the Company; and provided further, that the Company shall not be
liable in any such case (i) to the extent that any such loss, claim, damage, liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement in
or omission from such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by a Holder for use in the preparation thereof or (ii) if the
person asserting any such loss, claim, damage, liability (or action or proceeding in respect
thereof) who purchased the Registrable Securities that are the subject thereof did not receive a
copy of an amended preliminary prospectus or the final prospectus (or the final prospectus as
amended or supplemented) at or prior to the written confirmation of the sale of such Registrable
Securities to such person because of the failure of such Holder or underwriter to so provide such
amended preliminary or final prospectus and the untrue statement or omission of a material fact
made in such preliminary prospectus was corrected in the amended preliminary or final prospectus
(or the final prospectus as amended or supplemented). Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Holders, or any such director,
officer, partner, underwriter or controlling person and shall survive the transfer of such shares
by the Holder.
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(b) As a condition to including Registrable Securities in any registration statement filed
pursuant to this Agreement, each Holder agrees to be bound by the terms of this Section 9 and to
indemnify and hold harmless, to the fullest extent permitted by law, the Company, each of its
directors, officers, partners, legal counsel and accountants and each underwriter, if any, and each
other person, if any, who controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to which the Company or
any such director or officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) that arises out of or is based upon an untrue
statement in or omission from such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished by the Holder for use in the preparation thereof, and such Holder
shall reimburse the Company, and such Holders, directors, officers, partners, legal counsel and
accountants, persons, underwriters, or control persons, each such director, officer, and
controlling person for any legal or other expenses reasonably incurred by them in connection with
investigating, defending, or settling any such loss, claim, damage, liability, action, or
proceeding; provided, however, that such indemnity agreement found in this Section
9(b) shall in no event exceed the net proceeds received by such Holder as a result of the sale of
Registrable Securities pursuant to such registration statement, except in the case of fraud or
willful misconduct. Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer by any Holder of such shares.
(c) Promptly after receipt by an indemnified party of notice of the commencement of any action
or proceeding involving a claim referred to in this Section (including any governmental action),
such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such action;
provided, that the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under this Section, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless in the reasonable judgment of counsel to
such indemnified party a conflict of interest between such indemnified and indemnifying parties may
exist or the indemnified party may have defenses not available to the indemnifying party in respect
of such claim, the indemnifying party shall be entitled to participate in and to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof, unless in such
indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of the defenses thereof
or the indemnifying party fails to defend such claim in a diligent manner, other than reasonable
costs of investigation. Neither an indemnified nor an indemnifying party shall be liable for any
settlement of any action or proceeding effected without its consent. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect of such claim or
litigation. Notwithstanding anything to the contrary set forth herein, and without limiting any of
the rights set forth above, in any event any party shall have the right to retain, at its own
expense, counsel with respect to the defense of a claim. Each indemnified party shall furnish such
information regarding itself or the claim in question as an indemnifying party may reasonably
request in writing and as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
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(d) If an indemnifying party does or is not permitted to assume the defense of an action
pursuant to Sections 9(c) or in the case of the expense reimbursement obligation set forth in
Sections 9(a) and (b), the indemnification required by Sections 9(a) and 9(b) shall be made by
periodic payments of the
amount thereof during the course of the investigation or defense, as and when bills received or
expenses, losses, damages, or liabilities are incurred.
(e) If the indemnification provided for in Section 9(a) or 9(b) is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall (i) contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability, claim, damage or expense as is
appropriate to reflect the proportionate relative fault of the indemnifying party on the one hand
and the indemnified party on the other (determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission), or
(ii) if the allocation provided by clause (i) above is not permitted by applicable law or provides
a lesser sum to the indemnified party than the amount hereinafter calculated, not only the
proportionate relative fault of the indemnifying party and the indemnified party, but also the
relative benefits received by the indemnifying party on the one hand and the indemnified party on
the other, as well as any other relevant equitable considerations. No indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(g) Indemnification similar to that specified in this Section (with appropriate modifications)
shall be given by the Company and each Holder of Registrable Securities with respect to any
required registration or other qualification of securities under any federal or state law or
regulation or governmental authority other than the Securities Act.
10. Independent Nature of Each Investor’s Obligations and Rights. The obligations of
each Investor under this Agreement are several and not joint with the obligations of any other
Investor, and each Investor shall not be responsible in any way for the performance of the
obligations of any other Investor under this Agreement. Nothing contained herein and no action
taken by any Investor pursuant hereto, shall be deemed to constitute such Investors as a
partnership, an association, a joint venture, or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by this Agreement. Each Investor shall be entitled to
independently protect and enforce its rights, including without limitation the rights arising out
of this Agreement, and it shall not be necessary for any other Investor to be joined as an
additional party in any proceeding for such purpose.
11. Miscellaneous.
(a) Governing Law; Jurisdiction. The validity and effect of this Agreement, and the
rights and obligations of the parties hereto, shall be enforced, governed by, and construed in all
respect in accordance with the internal laws of the State of Florida (without reference to conflict
of laws provisions). Each Party hereby irrevocably and unconditionally (a) agrees that any Action
or Proceeding, at Law or equity, arising out of or relating to this Agreement and any other
agreements or the transactions contemplated hereby and thereby shall only be brought in the state
or federal courts located in Miami-Dade County, Florida, (b) expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and (c) waives and agrees not to
raise (by way of motion, as a defense or otherwise) any
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and all jurisdictional, venue and convenience objections or defenses that such party may have in
such action or proceeding. Each party hereby irrevocably and unconditionally consents to the
service of process of any of the aforementioned courts. Nothing herein contained shall be deemed
to affect the right of any party to serve process in any manner permitted by law or commence legal
proceedings or otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action or proceeding brought pursuant to this Section 10(a).
(b) Remedies. In the event of a breach by the Company or by a Holder of any of their
respective obligations under this Agreement, each Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific performance of its rights under this
Agreement. The Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for specific performance in
respect of such breach, it shall not assert or shall waive the defense that a remedy at law would
be adequate.
(c) Successors and Assigns. Except as otherwise provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon, the successors, Permitted Assignees, executors
and administrators of the parties hereto.
(d) No Inconsistent Agreements. The Company has not entered, as of the date hereof,
and shall not enter, on or after the date of this Agreement, into any agreement with respect to its
securities that would have the effect of impairing the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
(e) Entire Agreement. This Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof.
(f) Notices, etc. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the date of service if
served personally on the party to whom notice is to be given, on the date of transmittal of
services via facsimile or telecopy to the party to whom notice is to be given (if receipt is orally
confirmed by phone and a confirming copy delivered thereafter in accordance with this Section), or
on the fifth day after mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or via a nationally recognized overnight courier
providing a receipt for delivery and properly addressed to the applicable address as set forth
below. Any party may change its address for purposes of this paragraph by giving notice of the new
address to each of the other parties in the manner set forth above.
(a) If to the Company to:
Attention: Chief Financial Officer
Fax: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
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With a copy to:
Xxxxx X. Xxxxx
Xxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Phone (000) 000-0000
Xxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Phone (000) 000-0000
(b) If to the Investor, to the Investor’s address set forth on the signature page
hereto.
(g) Delays or Omissions. No delay or omission to exercise any right, power or remedy
accruing to any Holder, upon any breach or default of the Company under this Agreement, shall
impair any such right, power or remedy of such Holder nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar breach or default
thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of
any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any Holder of any breach or default under this
Agreement, or any waiver on the part of any Holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be enforceable against the parties actually executing such counterparts, and all of
which together shall constitute one instrument. In the event that any signature is delivered by
facsimile transmission, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such
facsimile signature page were an original thereof.
(i) Severability. In the case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
(j) Amendments. The provisions of this Agreement may be amended at any time and from
time to time, and particular provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and the Majority of the Holders. The
Investors acknowledge that by the operation of this Section, the Majority Holders may have the
right and power to diminish or eliminate all rights of the Investors under this Agreement.
(k) Waiver of Jury Trial. EACH INVESTOR AND THE COMPANY HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER
OF THIS LETTER AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY SUCH
INVESTOR AND THE COMPANY.
[SIGNATURE PAGES FOLLOW]
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This Registration Rights Agreement is hereby executed as of the date first above written.
| THE COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[SIGNATURE PAGE OF INVESTOR FOLLOWS]
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This Registration Rights Agreement is hereby executed as of the date first above written.
INVESTOR (Individual)
(Print Name)
INVESTOR(Entity)
By:
(Print Name)
(Print Title)
Address for notices:
| City | State | Zip Code |
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