REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated
as of February 15, 2007, is made by and among NexCen Brands, Inc., a Delaware
corporation (the “Company”),
and
those stockholders listed on Exhibit
A and Exhibit B
hereto
(collectively and together with any permitted assigns, the “Stockholders”).
WHEREAS,
the Company, Blass Acquisition Corp., a Delaware corporation (“Jeans”),
Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxx, Xxxx Xxxxx Holding
Co., Inc., a Delaware corporation (“Holding”),
Xxxx
Xxxxx International LLC, a Delaware limited liability company, and Xxxx Xxxxx
Licensing Co., Inc., a New York corporation, have entered into that certain
Stock Purchase Agreement, dated as of December 19, 2006 (the “Purchase
Agreement”),
pursuant to which the Stockholders have agreed to sell 100% of the issued and
outstanding shares of capital stock of Holding to Jeans in exchange for which,
as
part
of the consideration, the Stockholders received shares of common stock, par
value $0.01 per share, of the Company;
WHEREAS,
at Closing (as defined in the Purchase Agreement), the Company shall issue
a
Warrant to Designer Equity Holding Company, LLC (“Designer
Equity”),
which
shall be exercisable for up to 400,000 shares (subject to adjustment) of the
Company’s common stock (“Designer
Equity Warrant Shares”);
WHEREAS,
on the terms and conditions set forth in the Purchase Agreement, the Company
has
agreed to grant to the Stockholders certain registration rights with respect
to
the shares of its common stock, par value $0.01 per share, issuable to certain
Stockholders pursuant to the Purchase Agreement; and
WHEREAS,
the Company has agreed to grant to Designer Equity certain registration rights
with respect to the shares of its common stock, par value $0.01 per share,
issuable to Designer Equity upon exercise of that certain Warrant, as set forth
herein.
NOW
THEREFORE,
in
consideration of the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
All
capitalized terms used but not defined herein shall have the meanings given
to
such terms in the Purchase Agreement. For the purposes of this Agreement, the
following terms shall have the respective meanings set forth below or elsewhere
in this Agreement as referred to below:
“Additional
Shares”
shall
mean those shares of Common Stock issued in satisfaction of the Earn-Out Payment
as and to the extent provided in Section 2.5 of the Purchase
Agreement.
“Business
Day”
shall
mean any day that is not a Saturday, a Sunday or a legal holiday in the State
of
New York.
“Blass
Stockholders”
shall
mean, at the relevant time of reference thereto, those Stockholders holding,
in
the aggregate, fifty percent (50%) of the Registrable Securities then
outstanding and then held by those Stockholders listed on Exhibit
A.
“Closing
Shares”
shall
mean those shares of Common Stock issued to certain Stockholders upon the
Closing (including the Escrow Shares).
“Commission”
shall
mean the Securities and Exchange Commission or any other federal agency at
the
time administering the Securities Act.
“Common
Stock”
shall
mean common stock, par value $0.01 per share, of the Company.
“Designer
Equity Warrant Shares”
shall
mean those shares of Common Stock issued to Designer Equity upon exercise of
that certain Warrant.
“Designer
Stockholders”
shall
mean, at the relevant time of reference thereto, Designer Equity to the extent
it holds Registrable Securities.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended and in effect from time
to
time.
“Prospectus”
means
the prospectus (including any preliminary prospectus and/or any final prospectus
filed pursuant to Rule 424(b) under the Securities Act and any prospectus that
discloses information previously omitted from a prospectus filed as part of
an
effective registration statement in reliance on Rule 430A, Rule 430B or Rule
430C under the Securities Act) included in a Registration Statement, as amended
or supplemented by any prospectus supplement or any Issuer Free Writing
Prospectus (as defined in Rule 433(h) under the Securities Act) with respect
to
the terms of the offering or any portion of the Registrable Securities covered
by such Registration Statement and by all other amendments and supplements
to
such prospectus, including all material incorporated by reference in such
prospectus and all documents filed after the date of such prospectus by the
Company under the Exchange Act and incorporated by reference
therein.
“Registrable
Securities”
shall
mean, collectively, the Closing Shares and Additional Shares issued to certain
Stockholders pursuant to the Purchase Agreement and the Designer Equity Warrant
Shares, and
any
other securities issued or issuable with respect to the Closing Shares,
Additional Shares and Designer Equity Warrant Shares by way of stock dividend
or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise;
provided,
however,
that
such Closing Shares, Additional Shares and Designer Equity Warrant Shares shall
cease to be Registrable Securities for purposes of this Agreement when it no
longer is a Restricted Security.
“Required
Stockholders”
shall
mean the Blass Stockholders and the Designer Stockholders, as
applicable.
“Restricted
Security”
or
“Restricted
Securities”
means
any share of Common Stock except any that (i) has been registered pursuant
to an
effective registration statement under the Securities Act and sold in a manner
contemplated by the prospectus included in such registration statement; (ii)
has
been transferred by the Stockholders in compliance with the resale provisions
of
Rule 144 under the Securities Act (or any successor provision thereto) or is
transferable by the Stockholders pursuant to paragraph (k) of Rule 144 under
the
Securities Act (or any successor provision thereto); or (iii) otherwise has
been
transferred by the Stockholders and a new certificate representing a share
of
Common Stock not subject to transfer restrictions under the Securities Act
has
been delivered by or on behalf of the Company.
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“Securities
Act”
shall
mean the Securities Act of 1933, as amended and in effect from time to
time.
2. Registration
and Sale.
(a) Registration
and Sale.
Subject
to the limitations set forth in this Section 2(a) and Sections 2(c) and 7(i)
below, the Company shall file within 180 days (the “Filing
Date”)
of the
Closing Date, a Registration Statement on Form S-3 (or comparable or successor
form) under the Securities Act to register for resale all Registrable Securities
(other than the Additional Shares) (a “Registration
Statement”),
unless
(i) the Company is unable to do so as a result of the Commission being unable
to
accept such filing due to no fault of the Company or (ii) the Company has made
a
reasonable good faith effort to file a Registration Statement within the time
period specified but is unable to make the filing as of the specified date
as a
result of circumstances beyond the Company’s reasonable control.
The
Company shall use its reasonable best efforts to cause each Registration
Statement to become effective as soon as possible after filing and to remain
effective for the period ending on the earlier of (x) the Termination Date
(as
defined below) and (y) the date on which there are no Registrable Securities
covered by the Registration Statement, provided that the Company shall not
be
required to maintain the effectiveness of a Registration Statement to the extent
that a subsequently filed Registration Statement registers the resale of the
Registrable Securities.
(b) The
Registration Statement shall be filed as a "shelf" registration statement
pursuant to Rule 415 under the Securities Act (or any successor rule) and shall
cover the disposition of all Registrable Securities covered by the Registration
Statement in one or more underwritten offerings, block transactions, broker
transactions, at-market transactions and in such other manner or manners as
may
reasonably be specified by the Required Stockholders. The Company shall use
its
reasonable best efforts to keep such Registration Statement continuously
effective (in accordance with the last sentence of Section 2(a)), and in
furtherance of such obligation, shall supplement or amend such Registration
Statement if, as and when required by the rules, regulations and instructions
applicable to the form used by the Company for such registration or by the
Securities Act or by any other rules and regulations thereunder applicable
to
shelf registrations.
(c) Black-Out
Periods.
(i) Notwithstanding
anything to the contrary in this Agreement, if at any time after the filing
of
the Registration Statement, the Company, by written notice to the Stockholders
(a “Suspension
Notice”),
may
direct the Stockholders to suspend sales of the Registrable Securities pursuant
to a Registration Statement for such times as the Company reasonably may
determine is necessary and advisable (but in no event for more than (x) an
aggregate of ninety (90) days in any rolling twelve (12)- month period
commencing on the date of this Agreement or (y) more than sixty (60) days in
any
rolling 90-day period), if any of the following events shall occur: (1) a
majority of the Board of Directors of the Company shall have determined in
good
faith that (A) the offer or sale of any Registrable Securities would materially
impede, delay or interfere with any proposed financing, offer or sale of
securities, acquisition, merger, tender offer, business combination, corporate
reorganization or other significant transaction involving the Company or (B)
after the advice of counsel, the sale of Registrable Securities pursuant to
the
Registration Statement would require disclosure of non-public material
information not otherwise required to be disclosed under applicable law, and
(C)
(x) the Company has a bona fide business purpose for preserving the
confidentiality of the proposed transaction, (y) disclosure would have a
material adverse effect on the Company or the Company’s ability to consummate
the proposed transaction, or (z) the proposed transaction renders the Company
unable to comply with Commission requirements, in each case under circumstances
that would make it impractical or inadvisable to cause the Registration
Statement (or such filings) to become effective or to promptly amend or
supplement the Registration Statement on a post-effective basis, as applicable;
or (2) a majority of the Board of Directors of the Company shall have determined
in good faith, after the advice of counsel, that the Company is required by
law,
rule or regulation or that it is in the best interests of the Company to
supplement the Registration Statement or file a post-effective amendment to
the
Registration Statement in order to incorporate information into the Registration
Statement for the purpose of (A) including in the Registration Statement any
prospectus required under Section 10(a)(3) of the Securities Act; (B) reflecting
in the prospectus included in the Registration Statement any facts or events
arising after the effective date of the Registration Statement (or of the most
recent post-effective amendment) that, individually or in the aggregate,
represents a fundamental change in the information set forth therein; or (C)
including in the prospectus included in the Registration Statement any material
information with respect to the plan of distribution not disclosed in the
Registration Statement or any material change to such information. Any period
in
which the use of the Registration Statement has been suspended in accordance
with this Section 2(c) is sometimes referred to herein as a “Blackout
Period.”
Upon
the occurrence of any such suspension, the Company shall use its commercially
reasonable efforts to cause the Registration Statement to become effective
or to
promptly amend or supplement the Registration Statement on a post-effective
basis or to take such action as is necessary to make resumed use of the
Registration Statement compatible with the Company’s best interests, as
applicable, so as to permit the Stockholders to resume sales of the Registrable
Securities as soon as possible.
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(ii) The
Stockholders shall not effect any sales of the Registrable Securities pursuant
to such Registration Statement (or such filings) at any time after they have
received a Suspension Notice from the Company and prior to receipt of an End
of
Suspension Notice (as defined below). If so directed by the Company, the
Stockholders will deliver to the Company all copies (other than permanent file
copies) then in the Stockholders’ possession of the prospectus covering the
Registrable Securities at the time of receipt of the Suspension Notice. The
Stockholders may recommence effecting sales of the Registrable Securities
pursuant to the Registration Statement (or such filings) following further
notice to such effect (an “End
of
Suspension Notice”)
from
the Company, which End of Suspension Notice shall be given by the Company to
the
Stockholders in the manner described above promptly following the conclusion
of
any Suspension Event and its effect. Until the End of Suspension Notice is
so
given to the Stockholders, the Company’s obligations under Section 3 to update
or keep current the Registration Statement and the Stockholders’ right to sell
Registrable Securities pursuant to the Registration Statement shall be
suspended, provided that such suspension shall not exceed the periods specified
in Section 2(c)(i) above.
(d) The
Company shall be entitled to include in the Registration Statement filed or
to
be filed by the Company pursuant to Section 2(a) above shares of the capital
stock of the Company to be sold by the Company for its own account or for the
account of any other stockholders of the Company except as and to the extent
that such inclusion would reduce the number of Registrable Securities registered
on such Registration Statement.
3. Further
Obligations of the Company.
In
connection with the Registration Statement, the Company agrees that it shall
also use its best efforts to do the following as expeditiously as commercially
reasonable:
(a) prepare
and file with the Commission such amendments and post-effective amendments
to
the Registration Statement and the prospectus used in connection therewith
as
may be necessary under applicable law to keep such Registration Statement
effective for the applicable period; and cause each Prospectus to be
supplemented by any required prospectus supplement or Issuer Free Writing
Prospectus (as defined in Rule 433(h) under the Securities Act), and cause
the
Prospectus as so supplemented or any such Issuer Free Writing Prospectus, as
the
case may be, to be filed pursuant to Rule 424 or Rule 433, respectively (or
any
similar provision then in force) under the Securities Act and to comply with
the
provisions of the Securities Act, the Exchange Act and the rules and regulations
applicable to it with respect to the disposition of all Registrable Securities
covered by the Registration Statement in accordance with each Stockholder’s
intended method of disposition set forth in the Registration
Statement;
(b) furnish
to each Stockholder offering Registrable Securities under the Registration
Statement (A) after the same is prepared and publicly distributed, filed with
the Commission, or received by the Company, one copy of the Registration
Statement, each Prospectus,
each
Issuer Free Writing Prospectus, and each amendment or supplement to any of
the
foregoing, and (B) such number of copies of the Prospectus, each Issuer Free
Writing Prospectus, and all amendments and supplements thereto, as the
Stockholders may reasonably request to facilitate the disposition of the
Registrable Securities owned by the Stockholders;
(c) register
or qualify the Registrable Securities covered by the Registration Statement
under the securities or “blue sky” laws of such jurisdictions within the United
States as each Stockholder shall reasonably request unless an available
exemption to such registration or qualification requirements is then available;
provided
that the
Company shall not be obligated to register or qualify such Registrable
Securities in any jurisdiction in which such registration or qualification
would
require the Company (A) to subject itself to general taxation in any such
jurisdiction, (B) file any general consent to service of process, or (C) to
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(c);
(d) timely
file with the Commission such information as the Commission may prescribe under
Sections 13 or 15(d) of the Exchange Act, and otherwise use commercially
reasonable efforts to ensure that the public information requirements of Rule
144 under the Securities Act are satisfied with respect to the
Company;
(e) notify
the Stockholders promptly in writing (A) of any comments by the Commission
with
respect to the Registration Statement or the Prospectus, or any request by
the
Commission for the amending or supplementing thereof or for additional
information with respect thereto, (B) of the issuance by the Commission of
any
stop order or other suspension of the effectiveness of the Registration
Statement which is known to the Company or the initiation of any proceedings
for
that purpose which are known to the Company and (C) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of such Registrable Securities for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purposes; and
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(f) as
promptly as practicable after becoming aware of such event, notify the
Stockholders of the occurrence of any event of which the Company has knowledge,
as a result of which the Prospectus included in the Registration Statement,
as
then in effect, or any Issuer Free Writing Prospectus, taken as a whole with
the
Prospectus, 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 to use its commercially reasonable efforts to promptly prepare
an amendment to the Registration Statement and supplement to the Prospectus
to
correct such untrue statement or omission, and deliver a number of copies of
such supplement or amendment to the Stockholders as the Stockholders may
reasonably request.
4. Obligations
of the Stockholders.
In connection with the registration of the Registrable Securities, the
Stockholders shall have the following obligations:
(a) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement of the Registrable Securities of each
Stockholder that such Stockholder shall furnish to the Company in writing 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 such Stockholder shall execute such documents in connection
with
such registration as the Company may reasonably request.
(b) The
Stockholder, by such Stockholder’s acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company
in
connection with the preparation and filing of the Registration Statement
hereunder, unless such Stockholder has notified the Company in writing of such
Stockholder’s election to exclude all of such Stockholder’s Registrable
Securities from the Registration Statement.
(c) The
Stockholders shall not prepare or use any Free Writing Prospectus (as such
term
is defined in Rule 405 under the Securities Act) unless any and all issuer
information included therein has been approved by the Company.
(d) As
promptly as practicable after becoming aware of such event, the Stockholders
shall notify the Company of the occurrence of any event, as a result of which
the Prospectus included in a 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.
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(e) Each
Stockholder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Sections 3(e)(B), 3(e)(C) or
3(f) above, such Stockholder shall immediately discontinue its disposition
of
Registrable Securities pursuant to the Registration Statement and, if so
directed by the Company, the Stockholder shall deliver to the Company or destroy
(and deliver to the Company a certificate of destruction) all copies (other
than
permanent file copies) in the Stockholder’s possession of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
(f) Each
Stockholder shall take all other reasonable actions necessary to expedite and
facilitate the disposition by the Stockholder of the Registrable Securities
pursuant to the Registration Statement.
(g) The
Stockholders hereby covenant and agree that they will comply with any prospectus
delivery requirements of the Securities Act applicable to them in connection
with sales of Registrable Securities pursuant to the Registration
Statement.
5. Expenses.
All
expenses incurred by the Company in complying with its obligations under this
Agreement shall be paid by the Company, except that the Company shall not be
liable for any fees, discounts or commissions to any underwriter or any fees
or
disbursements of counsel for any Stockholder, in either case in respect of
the
Registrable Securities sold by any Stockholders.
6. Indemnification
and Contribution.
(a) Indemnification
by the Company.
If any
Registrable Securities are registered for resale under the Securities Act
pursuant to this Agreement, the Company shall indemnify and hold harmless each
Stockholder of such Registrable Securities and such Stockholder’s directors,
officers, employees and agents, against any losses, claims, damages, liabilities
or expenses, joint or several, to which such Stockholder or any such director,
officer, employee or agent may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement of any material fact contained, on the
effective date thereof, in the registration statement under which such
Registrable Securities were registered under the Securities Act or any final
prospectus contained therein (in each case as amended or supplemented, including
without limitation, any update pursuant to Rule 424(b) under the Securities
Act), provided that such final prospectus was used to effect a sale by such
Stockholder. (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were made
not
misleading, or (iii) any violation by the Company of the Securities Act or
state
securities or blue sky laws applicable to the Company and relating to any action
or inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon any
untrue statement or alleged untrue statement or any omission or alleged omission
made in such registration statement, final prospectus, or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Stockholder specifically for use in such registration
statement, prospectus, or amendment or supplement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of
such Stockholder or such director, officer, employee or agent.
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(b) Stockholders’
Indemnification.
In
connection with the Registration Statement, each such Stockholder will furnish
to the Company such information as shall reasonably be requested by the Company
for use in such registration statement or prospectus and shall severally, and
not jointly, indemnify, to the extent permitted by law, the Company, its
directors, officers, employees and agents against any losses, claims, damages,
liabilities and expenses (under the Securities Act, at common law or otherwise),
insofar as such losses, claims, damages, liabilities or expenses arise out
of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained on the effective date thereof in the Registration Statement,
or
any final prospectus included therein (in each case as amended or supplemented,
including without limitation, any update pursuant to Rule 424(b) under the
Securities Act), but only to the extent that such untrue statement of a material
fact is contained in, or such material fact is omitted from, written information
furnished by such Stockholder, specifically for use in such registration
statement or prospectus; provided,
however,
that
the obligations of such Stockholders hereunder shall be limited to an amount
equal to the proceeds to each Stockholder of Registrable Securities sold in
connection with such registration.
(c) Indemnification
Procedures.
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof (an “Indemnification
Notice”),
but
the omission so to notify the indemnifying party shall not relieve it from
any
liability which it may have to any indemnified party unless the indemnifying
party is materially and adversely affected thereby. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall
be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof and, after notice from the indemnifying party
to
such indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 6(c) for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof. Notwithstanding the
foregoing, the indemnified party shall have the right to employ its own counsel
at its expense unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying party or (ii) the attorneys for the
indemnifying party shall have concluded that there are defenses available to
the
indemnified party that are different from or additional to those available
to
the indemnifying party and such counsel reasonably concludes that it is
therefore unable to represent the interests of both the indemnified and
indemnifying party (in which case the indemnifying party may employ separate
counsel). In no event shall the indemnifying party be liable for fees and
expenses of more than one counsel separate from its own counsel.
(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
6
but it is judicially determined (by the entry of a final judgment or decree
by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, and in each such case, the Company and such holder will contribute
to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the registration
statement bears to the public offering price of all securities offered by such
registration statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will
be
required to contribute any amount in excess of the net proceeds received by
such
holder from the sale of such Registrable Securities offered by it pursuant
to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty
of
such fraudulent misrepresentation.
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7. Miscellaneous.
(a) Notices.
All
notices and other communications pursuant to this Agreement shall be in writing,
either hand delivered or sent by certified or registered mail with charges
prepaid or by commercial courier guaranteeing next business day delivery, or
sent by facsimile, and shall be addressed:
(i) in
the
case of the Company, to the Company at its principal office set forth in the
Purchase Agreement; and
(ii) in
the
case of a Stockholder, to the address provided by such Stockholder to the
Company.
Any
notice or other communication pursuant to this Agreement shall be deemed to
have
been duly given or made and to have become effective (i) when delivered in
hand
to the party to which it was directed, (ii) if sent by facsimile and properly
addressed in accordance with the foregoing provisions of this Section 7(a),
when
received by the addressee, (iii) if sent by commercial courier guaranteeing
next
business day delivery, on the business day following the date of delivery to
such courier, or (iv) if sent by first-class mail, postage prepaid, and properly
addressed in accordance with the foregoing provisions of this Section 7(a),
(A)
when received by the addressee, or (B) on the third business day following
the
day of dispatch thereof, whichever of (A) or (B) shall be the
earlier.
(b) Assignment.
The
right
to have the Company register Registrable Securities pursuant to this Agreement
may be assigned or transferred only with the prior written consent of the
Company
(such
consent not to be unreasonably withheld, conditioned or delayed), and any such
assignment or transfer without such consent shall be void and of no effect.
In
the event of any such permitted assignment or transfer by any Stockholder to
any
permitted transferee of all or any portion of such Registrable Securities,
such
transfer will be allowed only if: (a) the Stockholder agrees in writing with
the
transferee or assignee to assign such rights, and a copy of such agreement
is
furnished to the Company within a reasonable time after such assignment, (b)
the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (i) the name and address of such transferee
or
assignee and (ii) the Registrable Securities with respect to which such
registration rights are being transferred or assigned, (c) immediately following
such transfer or assignment, the Registrable Securities so transferred or
assigned to the transferee or assignee constitute Restricted Securities,
(d)
at or
before the time the Company received the written notice contemplated by clause
(b) of this sentence the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein, and (e) the
Company is furnished with an opinion of counsel, which counsel and opinion
shall
be satisfactory to the Company, to the effect that the permitted assignment
would be in compliance with the Securities Act and any applicable state or
other
securities laws.
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(c) Amendment
and Waiver.
This
Agreement may not be amended except by an instrument in writing signed by the
Company and by the Blass Stockholders. Any Stockholder may waive any of its,
his
or her rights under this Agreement (including, without limitation, such
Stockholder’s right to cause any other Person to comply with such other Person’s
obligations under this Agreement) only by an instrument in writing signed by
such Stockholder; provided,
however,
that
(i) any rights under this Agreement which inure to the benefit of any and all
Stockholders (including, without limitation, the right of any and all
Stockholders to cause any other Person to comply with such other Person’s
obligations under this Agreement) may be waived on behalf of any and all
Stockholders by an instrument in writing signed by the Blass Stockholders.
Any
waiver, pursuant to this Subsection 7(c), of a breach of this Agreement shall
not operate or be construed as a waiver of any subsequent breach.
(d) Governing
Law; Headings.
This
agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware without regard to conflict of law provisions of such state.
The headings in this Agreement are for convenience only and shall not affect
the
construction hereof.
(e) Severability.
In the
event that 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.
(f) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. This Agreement and the Purchase Agreement supersede all
prior agreements and understandings between the parties with respect to the
subject matter contained herein and therein.
(g) Effect
of Breach; Remedies.
Notwithstanding anything to the contrary in this Agreement, a breach by the
Stockholders listed on Exhibit B of their obligations hereunder shall not
release the Company from its obligations hereunder with respect to the
Stockholders listed on Exhibit A. Correspondingly, a breach by the Stockholders
listed on Exhibit A of their obligations hereunder shall not release the Company
from its obligations hereunder with respect to Designer Equity.
9
(h) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(i) Termination
of Registration Rights.
All of
the Company's obligations to register Registrable Securities covered by a
Registration Statement (including without limitation to keep the Registration
Statement covering such Registrable Securities effective) shall terminate,
if
not previously terminated pursuant to the terms of Section 2(a), upon the
earlier of two (2) years from the date of the effectiveness of such Registration
Statement and such date that each Stockholder may sell all of the Registrable
Securities held by such Stockholder within a three-month period in accordance
with Rule 144(d) (the “Termination
Date”).
Remainder
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10
IN
WITNESS WHEREOF,
the
Company and the Stockholders have executed this Agreement as of the date first
above written.
| NEXCEN BRANDS, INC. | ||
| |
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| By: | /s/ Xxxxxx X. X’Xxxxx | |
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Name:
Title:
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| /s/ Xxxxxx X. Xxxxxxx | |||
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XXXXXX X. XXXXXXX |
| /s/ Xxxxxx X. Xxxxxxx | |||
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XXXXXX X. XXXXXXX |
| /s/ Xxxxxxx Xxxxxxxx | |||
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XXXXXXX XXXXXXXX |
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DESIGNER
LICENSE HOLDING COMPANY, LLC
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| |
|
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| By: | /s/ Xxxxxx Xxxxx | |
|
Name:
Title:
|
||
