REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 27, 2006, by and among Cross Atlantic Commodities, Inc., a
Nevada corporation with its headquarters located at 0000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx 00000 (the "Company"), and each of the
undersigned (together with their respective affiliates and any assignee
or transferee of all of their respective rights hereunder, the "Initial
Investors").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and
among the parties hereto of even date herewith (the "Securities
Purchase Agreement"), the Company has agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to the
Initial Investors (i) secured convertible notes in the aggregate
principal amount of up to One Million Dollars ($1,000,000) (the
"Notes") that are convertible into shares of the Company's common stock
(the "Common Stock"), upon the terms and subject to the limitations and
conditions set forth in such Notes and (ii) warrants (the "Warrants")
to acquire an aggregate of 10,000,000 shares of Common Stock, upon the
terms and conditions and subject to the limitations and conditions set
forth in the Warrants; and
B. To induce the Initial Investors to execute and deliver the
Securities Purchase Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "1933 Act"), and applicable state
securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
Company and each of the Initial Investors hereby agree as follows:
1. DEFINITIONS.
a. As used in this Agreement, the following terms
shall have the following meanings:
(i) "Investors" means the Initial Investors
and any transferee or assignee who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 hereof.
(ii) "register," "registered," and
"registration" refer to a registration effected by preparing and filing
a Registration Statement or Statements in compliance with the 1933 Act
and pursuant to Rule 415 under the 1933 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 by the United States Securities and Exchange Commission (the
"SEC").
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(iii) "Registrable Securities" means the
Conversion Shares issued or issuable upon conversion or otherwise
pursuant to the Notes and Additional Notes (as defined in the
Securities Purchase Agreement) pursuant to a price equal to the lesser
of: (i) the Initial Market Price (as defined in the Notes) and (ii) the
average of the lowest three (3) Trading Prices (as defined in the
Notes) for the Common Stock during the twenty (20) Trading Day period
discounted by 40%.
(iv) "Registration Statement" means a
registration statement of the Company under the 0000 Xxx.
b. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the
Securities Purchase Agreement or the Convertible Note.
2. REGISTRATION.
a. Mandatory Registration. The Company shall
prepare, and, on or prior to thirty (30) days from the date of Closing
(as defined in the Securities Purchase Agreement) (the "Filing Date"),
file with the SEC a Registration Statement on Form S-3 (or, if Form S-3
is not then available, on such form of Registration Statement as is
then available to effect a registration of the Registrable Securities,
subject to the consent of the Initial Investors, which consent will not
be unreasonably withheld) covering the resale of the Registrable
Securities underlying the Notes issued or issuable pursuant to the
Securities Purchase Agreement, which Registration Statement, to the
extent allowable under the 1933 Act and the rules and regulations
promulgated thereunder (including Rule 416), shall state that such
Registration Statement also covers such indeterminate number of
additional shares of Common Stock as may become issuable upon
conversion of or otherwise pursuant to the Notes to prevent dilution
resulting from stock splits, stock dividends or similar transactions.
The number of shares of Common Stock initially included in such
Registration Statement shall be no less than an amount equal the sum of
the number of Conversion Shares that are then issuable upon conversion
of the Notes and Additional Notes (based on the Variable Conversion
Price as would then be in effect and assuming the Variable Conversion
Price is the Conversion Price at such time) without regard to any
limitation on the Investor's ability to convert the Notes. The Company
acknowledges that the number of shares initially included in the
Registration Statement represents a good faith estimate of the maximum
number of shares issuable upon conversion of the Notes.
b. Underwritten Offering. If any offering pursuant
to a Registration Statement pursuant to Section 2(a) hereof involves an
underwritten offering, the Investors who hold a majority in interest of
the Registrable Securities subject to such underwritten offering, with
the consent of a majority-in-interest of the Initial Investors, shall
have the right to select one legal counsel and an investment banker or
bankers and manager or managers to administer the offering, which
investment banker or bankers or manager or managers shall be reasonably
satisfactory to the Company.
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c. Payments by the Company. The Company shall use
its best efforts to obtain effectiveness of the Registration Statement
as soon as practicable. If (i) the Registration Statement(s) covering
the Registrable Securities required to be filed by the Company pursuant
to Section 2(a) hereof is not filed by the Filing Date or declared
effective by the SEC on or prior to one hundred twenty (120) days from
the date of Closing (as defined in the Securities Purchase Agreement),
or (ii) after the Registration Statement has been declared effective by
the SEC, sales of all of the Registrable Securities cannot be made
pursuant to the Registration Statement, or (iii) the Common Stock is
not listed or included for quotation on the Nasdaq National Market
("Nasdaq"), the Nasdaq SmallCap Market ("Nasdaq SmallCap"), the New
York Stock Exchange (the "NYSE") or the American Stock Exchange (the
"AMEX") after being so listed or included for quotation after the date
hereof, or (iv) the Common Stock ceases to be traded on the Over-the-
Counter Bulletin Board (the "OTCBB") or any equivalent replacement
exchange prior to being listed or included for quotation on one of the
aforementioned markets, then the Company will make payments to the
Investors in such amounts and at such times as shall be determined
pursuant to this Section 2(c) as partial relief for the damages to the
Investors by reason of any such delay in or reduction of their ability
to sell the Registrable Securities (which remedy shall not be exclusive
of any other remedies available at law or in equity). The Company
shall pay to each holder of the Notes or Registrable Securities an
amount equal to the then outstanding principal amount of the Notes
(and, in the case of holders of Registrable Securities, the principal
amount of Notes from which such Registrable Securities were converted)
("Outstanding Principal Amount"), multiplied by the Applicable
Percentage (as defined below) times the sum of: (i) the number of
months (prorated for partial months) after the Filing Date or the end
of the aforementioned one hundred twenty (120) day period and prior to
the date the Registration Statement is declared effective by the SEC,
provided, however, that there shall be excluded from such period any
delays which are solely attributable to changes required by the
Investors in the Registration Statement with respect to information
relating to the Investors, including, without limitation, changes to
the plan of distribution, or to the failure of the Investors to conduct
their review of the Registration Statement pursuant to Section 3(h)
below in a reasonably prompt manner; (ii) the number of months
(prorated for partial months) that sales of all of the Registrable
Securities cannot be made pursuant to the Registration Statement after
the Registration Statement has been declared effective (including,
without limitation, when sales cannot be made by reason of the
Company's failure to properly supplement or amend the prospectus
included therein in accordance with the terms of this Agreement, but
excluding any days during an Allowed Delay (as defined in Section
3(f)); and (iii) the number of months (prorated for partial months)
that the Common Stock is not listed or included for quotation on the
OTCBB, Nasdaq, Nasdaq SmallCap, NYSE or AMEX or that trading thereon is
halted after the Registration Statement has been declared effective.
The term "Applicable Percentage" means two hundredths (.02). (For
example, if the Registration Statement becomes effective one (1) month
after the end of such one hundred twenty (120) day period, the Company
would pay $5,000 for each $250,000 of Outstanding Principal Amount. If
thereafter, sales could not be made pursuant to the Registration
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Statement for an additional period of one (1) month, the Company would
pay an additional $5,000 for each $250,000 of Outstanding Principal
Amount.) Such amounts shall be paid in cash or, at the Company's
option, in shares of Common Stock priced at the Conversion Price (as
defined in the Notes) on such payment date.
d. Piggy-Back Registrations. Subject to the last
sentence of this Section 2(d), if at any time prior to the expiration
of the Registration Period (as hereinafter defined) the Company shall
determine to file with the SEC a Registration Statement relating to an
offering for its own account or the account of others under the 1933
Act of any of its equity securities (other than on Form S-4 or Form S-8
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 stock option or other
bona fide, employee benefit plans), the Company shall send to each
Investor who is entitled to registration rights under this Section 2(d)
written notice of such determination and, if within fifteen (15) days
after the effective date of such notice, such Investor shall so request
in writing, the Company shall include in such Registration Statement
all or any part of the Registrable Securities such Investor requests to
be registered, except that if, in connection with any underwritten
public offering for the account of the Company the managing
underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included in the Registration
Statement because, in such underwriter(s)' judgment, marketing or other
factors dictate such limitation is necessary to facilitate public
distribution, then the Company shall be obligated to include in such
Registration Statement only such limited portion of the Registrable
Securities with respect to which such Investor has requested inclusion
hereunder as the underwriter shall permit. Any exclusion of Registrable
Securities shall be made pro rata among the Investors seeking to
include Registrable Securities in proportion to the number of
Registrable Securities sought to be included by such Investors;
provided, however, that the Company shall not exclude any Registrable
Securities unless the Company has first excluded all outstanding
securities, the holders of which are not entitled to inclusion of such
securities in such Registration Statement or are not entitled to pro
rata inclusion with the Registrable Securities; and provided, further,
however, that, after giving effect to the immediately preceding
proviso, any exclusion of Registrable Securities shall be made pro rata
with holders of other securities having the right to include such
securities in the Registration Statement other than holders of
securities entitled to inclusion of their securities in such
Registration Statement by reason of demand registration rights. No
right to registration of Registrable Securities under this Section 2(d)
shall be construed to limit any registration required under Section
2(a) hereof. If an offering in connection with which an Investor is
entitled to registration under this Section 2(d) is an underwritten
offering, then each Investor whose Registrable Securities are included
in such Registration Statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in an underwritten
offering using the same underwriter or underwriters and, subject to the
provisions of this Agreement, on the same terms and conditions as other
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shares of Common Stock included in such underwritten offering.
Notwithstanding anything to the contrary set forth herein, the
registration rights of the Investors pursuant to this Section 2(d)
shall only be available in the event the Company fails to timely file,
obtain effectiveness or maintain effectiveness of any Registration
Statement to be filed pursuant to Section 2(a) in accordance with the
terms of this Agreement.
e. Demand Registrations. The Company shall
prepare, and, on or prior to thirty (30) days from the date of receipt
of written demand (the "Investor Demand") of the Investors (the "Filing
Date"), to file with the SEC a Registration Statement on Form S-3 (or,
if Form S-3 is not then available, on such form of Registration
Statement as is then available to effect a registration of any shares
issued or issuable in respect of interest on the Notes in accordance
with the terms thereof, which Registration Statement, to the extent
allowable under the 1933 Act and the rules and regulations promulgated
thereunder (including Rule 416), shall state that such Registration
Statement also covers such indeterminate number of additional shares of
Common Stock as may become issuable upon conversion of or otherwise
pursuant to the Notes to prevent dilution resulting from stock splits,
stock dividends or similar transactions. The number of shares of
Common Stock initially included in such Registration Statement shall be
no less than an amount equal to the sum of the number of Conversion
Shares that are then issuable upon conversion of the interest on the
Notes (based on the Variable Conversion Price as would then be in
effect and assuming the Variable Conversion Price is the Conversion
Price at such time), without regard to any limitation on the Investor's
ability to convert the interest on the Notes. The Company acknowledges
that the number of shares initially included in the Registration
Statement represents a good faith estimate of the maximum number of
shares issuable upon conversion of the interest on the Notes.
f. Eligibility for Form X-0, XX-0 or S-1;
Conversion to Form S-3. The Company represents and warrants that it
meets the requirements for the use of Form X-0, XX-0 or S-1 for
registration of the sale by the Initial Investors and any other
Investors of the Registrable Securities. The Company agrees to file
all reports required to be filed by the Company with the SEC in a
timely manner so as to remain eligible or become eligible, as the case
may be, and thereafter to maintain its eligibility, for the use of Form
S-3. If the Company is not currently eligible to use Form S-3, not
later than five (5) business days after the Company first meets the
registration eligibility and transaction requirements for the use of
Form S-3 (or any successor form) for registration of the offer and sale
by the Initial Investors and any other Investors of Registrable
Securities, the Company shall file a Registration Statement on Form S-3
(or such successor form) with respect to the Registrable Securities
covered by the Registration Statement on Form SB-2 or Form S-1,
whichever is applicable, filed pursuant to Section 2(a) (and include in
such Registration Statement on Form S-3 the information required by
Rule 429 under the 0000 Xxx) or convert the Registration Statement on
Form SB-2 or Form S-1, whichever is applicable, filed pursuant to
Section 2(a) to a Form S-3 pursuant to Rule 429 under the 1933 Act and
cause such Registration Statement (or such amendment) to be declared
effective no later than thirty (30) days after filing. In the event of
a breach by the Company of the provisions of this Section 2(f), the
Company will be required to make payments pursuant to Section 2(c)
hereof.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable
Securities, the Company shall have the following obligations:
a. The Company shall prepare promptly, and file
with the SEC not later than the Filing Date, a Registration Statement
with respect to the number of Registrable Securities provided in
Section 2(a), and thereafter use its best efforts to cause such
Registration Statement relating to Registrable Securities to become
effective as soon as possible after such filing but in no event later
than one hundred twenty (120) days from the date of Closing), and keep
the Registration Statement effective pursuant to Rule 415 at all times
until such date as is the earlier of (i) the date on which all of the
Registrable Securities have been sold and (ii) the date on which the
Registrable Securities (in the opinion of counsel to the Initial
Investors) may be immediately sold to the public without registration
or restriction (including, without limitation, as to volume by each
holder thereof) under the 1933 Act (the "Registration Period"), which
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 not
misleading.
b. The Company shall prepare and file with the SEC
such amendments (including post-effective amendments) and supplements
to the Registration Statements and the prospectus used in connection
with the Registration Statements as may be necessary to keep the
Registration Statements effective at all times during the Registration
Period, and, during such period, comply with the provisions of the 1933
Act with respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statements until such time as
all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statements. In the event the
number of shares available under a Registration Statement filed
pursuant to this Agreement is insufficient to cover all of the
Registrable Securities issued or issuable upon conversion of the Notes,
the Company shall amend the Registration Statement, or file a new
Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover all of the Registrable Securities,
in each case, as soon as practicable, but in any event within fifteen
(15) days after the necessity therefor arises (based on the market
price of the Common Stock and other relevant factors on which the
Company reasonably elects to rely). The Company shall use its best
efforts to cause such amendment and/or new Registration Statement to
become effective as soon as practicable following the filing thereof,
but in any event within thirty (30) days after the date on which the
Company reasonably first determines (or reasonably should have
determined) the need therefor. The provisions of Section 2(c) above
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shall be applicable with respect to such obligation, with the ninety
(90) days running from the day the Company reasonably first determines
(or reasonably should have determined) the need therefor.
c. The Company shall furnish to each Investor whose
Registrable Securities are included in a Registration Statement and its
legal counsel (i) promptly (but in no event more than two (2) business
days) after the same is prepared and publicly distributed, filed with
the SEC, or received by the Company, one copy of each Registration
Statement and any amendment thereto, each preliminary prospectus and
prospectus and each amendment or supplement thereto, and, in the case
of the Registration Statement referred to in Section 2(a), each letter
written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the
SEC, in each case relating to such Registration Statement (other than
any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) promptly (but in
no event more than two (2) business days) after the Registration
Statement is declared effective by the SEC, such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Investor may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Investor. The Company will
immediately notify each Investor by facsimile of the effectiveness of
each Registration Statement or any post-effective amendment. The
Company will promptly respond to any and all comments received from the
SEC (which comments shall promptly be made available to the Investors
upon request), with a view towards causing each Registration Statement
or any amendment thereto to be declared effective by the SEC as soon as
practicable, shall promptly file an acceleration request as soon as
practicable (but in no event more than two (2) business days) following
the resolution or clearance of all SEC comments or, if applicable,
following notification by the SEC that any such Registration Statement
or any amendment thereto will not be subject to review and shall, if
required by SEC Rules, promptly file with the SEC a final prospectus as
soon as practicable (but in no event more than two (2) business days)
following receipt by the Company from the SEC of an order declaring the
Registration Statement effective. In the event of a breach by the
Company of the provisions of this Section 3(c), the Company will be
required to make payments pursuant to Section 2(c) hereof.
d. The Company shall use reasonable efforts to (i)
register and qualify the Registrable Securities covered by the
Registration Statements under such other securities or "blue sky" laws
of such jurisdictions in the United States as the Investors who hold a
majority in interest of the Registrable Securities being offered
reasonably request, (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
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jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (a)
qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (b) subject
itself to general taxation in any such jurisdiction, (c) file a general
consent to service of process in any such jurisdiction, (d) provide any
undertakings that cause the Company undue expense or burden, or (e)
make any change in its charter or bylaws, which in each case the Board
of Directors of the Company determines to be contrary to the best
interests of the Company and its shareholders.
e. In the event Investors who hold a majority-in-
interest of the Registrable Securities being offered in the offering
(with the approval of a majority-in-interest of the Initial Investors)
select underwriters for the offering, the Company shall enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriters of
such offering.
f. As promptly as practicable after becoming aware
of such event, the Company shall notify each Investor of the happening
of any event, of which the Company has knowledge, 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 omission to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and use its best efforts
promptly to prepare a supplement or amendment to any Registration
Statement to correct such untrue statement or omission, and deliver
such number of copies of such supplement or amendment to each Investor
as such Investor may reasonably request; provided that, for not more
than ten (10) consecutive trading days (or a total of not more than
twenty (20) trading days in any twelve (12) month period), the Company
may delay the disclosure of material non-public information concerning
the Company (as well as prospectus or Registration Statement updating)
the disclosure of which at the time is not, in the good faith opinion
of the Company, in the best interests of the Company (an "Allowed
Delay"); provided, further, that the Company shall promptly (i) notify
the Investors in writing of the existence of (but in no event, without
the prior written consent of an Investor, shall the Company disclose to
such investor any of the facts or circumstances regarding) material
non-public information giving rise to an Allowed Delay and (ii) advise
the Investors in writing to cease all sales under such Registration
Statement until the end of the Allowed Delay. Upon expiration of the
Allowed Delay, the Company shall again be bound by the first sentence
of this Section 3(f) with respect to the information giving rise
thereto.
g. The Company shall use its best efforts to
prevent the issuance of any stop order or other suspension of
effectiveness of any Registration Statement, and, if such an order is
issued, to obtain the withdrawal of such order at the earliest possible
moment and to notify each Investor who holds Registrable Securities
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being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
h. The Company shall permit a single firm of
counsel designated by the Initial Investors to review such Registration
Statement and all amendments and supplements thereto (as well as all
requests for acceleration or effectiveness thereof) a reasonable period
of time prior to their filing with the SEC, and not file any document
in a form to which such counsel reasonably objects and will not request
acceleration of such Registration Statement without prior notice to
such counsel. The sections of such Registration Statement covering
information with respect to the Investors, the Investor's beneficial
ownership of securities of the Company or the Investors intended method
of disposition of Registrable Securities shall conform to the
information provided to the Company by each of the Investors.
i. The Company shall make generally available to
its security holders as soon as practicable, but not later than ninety
(90) days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 under the
0000 Xxx) covering a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next following the effective
date of the Registration Statement.
j. At the request of any Investor, the Company
shall furnish, on the date that Registrable Securities are delivered to
an underwriter, if any, for sale in connection with any Registration
Statement or, if such securities are not being sold by an underwriter,
on the date of effectiveness thereof (i) an opinion, dated as of such
date, from counsel representing the Company for purposes of such
Registration Statement, in form, scope and substance as is customarily
given in an underwritten public offering, addressed to the
underwriters, if any, and the Investors and (ii) a letter, dated such
date, from the Company's independent certified public accountants in
form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and the Investors.
k. The Company shall make available for inspection
by (i) any Investor, (ii) any underwriter participating in any
disposition pursuant to a Registration Statement, (iii) one firm of
attorneys and one firm of accountants or other agents retained by the
Initial Investors, (iv) one firm of attorneys and one firm of
accountants or other agents retained by all other Investors, and (v)
one firm of attorneys retained by all such underwriters (collectively,
the "Inspectors") all pertinent financial and other records, and
pertinent corporate documents and properties of the Company, including
without limitation, records of conversions by other holders of
convertible securities issued by the Company and the issuance of stock
to such holders pursuant to the conversions (collectively, the
"Records"), as shall be reasonably deemed necessary by each Inspector
to enable each Inspector to exercise its due diligence responsibility,
and cause the Company's officers, directors and employees to supply all
information which any Inspector may reasonably request for purposes of
such due diligence; provided, however, that each Inspector shall hold
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in confidence and shall not make any disclosure (except to an Investor)
of any Record or other information which the Company determines in good
faith to be confidential, and of which determination the Inspectors are
so notified, unless (a) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in any Registration
Statement, (b) the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, or (c) the information in such Records has been made
generally available to the public other than by disclosure in violation
of this or any other agreement. The Company shall not be required to
disclose any confidential information in such Records to any Inspector
until and unless such Inspector shall have entered into confidentiality
agreements (in form and substance satisfactory to the Company) with the
Company with respect thereto, substantially in the form of this Section
3(k). Each Investor agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential. Nothing herein
(or in any other confidentiality agreement between the Company and any
Investor) shall be deemed to limit the Investor's ability to sell
Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations.
l. The Company shall hold in confidence and not
make any disclosure of information concerning an Investor provided to
the Company unless (i)disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other order from a
court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than
by disclosure in violation of this or any other agreement. The Company
agrees that it shall, upon learning that disclosure of such information
concerning an Investor is sought in or by a court or governmental body
of competent jurisdiction or through other means, give prompt notice to
such Investor prior to making such disclosure, and allow the Investor,
at its expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
m. The Company shall (i)cause all the Registrable
Securities covered by the Registration Statement to be listed on each
national 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) to the extent the securities of the same class or
series are not then listed on a national securities exchange, secure
the designation and quotation, of all the Registrable Securities
covered by the Registration Statement on Nasdaq or, if not eligible for
Nasdaq, on Nasdaq SmallCap or, if not eligible for Nasdaq or Nasdaq
SmallCap, on the OTCBB and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register with
the National Association of Securities Dealers, Inc. ("NASD") as such
with respect to such Registrable Securities.
n. The Company shall provide a transfer agent and
registrar, which may be a single entity, for the Registrable Securities
not later than the effective date of the Registration Statement.
o. The Company shall cooperate with the Investors
who hold Registrable Securities being offered and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be offered pursuant to
a Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as the managing
underwriter or underwriters, if any, or the Investors may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or the Investors may request, and, within three
(3) business days after a Registration Statement which includes
Registrable Securities is ordered effective by the SEC, the Company
shall deliver, and shall cause legal counsel selected by the Company to
deliver, to the transfer agent for the Registrable Securities (with
copies to the Investors whose Registrable Securities are included in
such Registration Statement) an instruction in the form attached hereto
as Exhibit 1 and an opinion of such counsel in the form attached hereto
as Exhibit 2.
p. At the request of the holders of a majority-in-
interest of the Registrable Securities, the Company shall prepare and
file with the SEC such amendments (including post-effective amendments)
and supplements to a Registration Statement and any prospectus used in
connection with the Registration Statement as may be necessary in order
to change the plan of distribution set forth in such Registration
Statement.
q. From and after the date of this Agreement, the
Company shall not, and shall not agree to, allow the holders of any
securities of the Company to include any of their securities, in excess
of 250,000 shares of Common Stock, in any Registration Statement under
Section 2(a) hereof or any amendment or supplement thereto under
Section 3(b) hereof without the consent of the holders of a majority-
in-interest of the Registrable Securities.
r. The Company shall take all other reasonable
actions necessary to expedite and facilitate disposition by the
Investors of Registrable Securities pursuant to a Registration
Statement.
4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable
Securities, the Investors 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 with respect to the Registrable Securities of a
particular Investor that such Investor shall furnish to the Company
such information regarding itself, the Registrable Securities held by
it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably
request. At least three (3) business days prior to the first
anticipated filing date of the Registration Statement, the Company
shall notify each Investor of the information the Company requires from
each such Investor.
b. Each Investor, by such Investor'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 Statements hereunder, unless such
Investor has notified the Company in writing of such Investor's
election to exclude all of such Investor's Registrable Securities from
the Registration Statements.
c. In the event Investors holding a majority-in-
interest of the Registrable Securities being registered (with the
approval of the Initial Investors) determine to engage the services of
an underwriter, each Investor agrees to enter into and perform such
Investor's obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary
indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Securities, unless such Investor has notified the
Company in writing of such Investor's election to exclude all of such
Investor's Registrable Securities from such Registration Statement.
d. Each Investor agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind
described in Section 3(f) or 3(g), such Investor will immediately
discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Investor's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 3(f) or 3(g) and, if so directed by
the Company, such Investor shall deliver to the Company (at the expense
of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in such Investor's possession, of the
prospectus covering such Registrable Securities current at the time of
receipt of such notice.
e. No Investor may participate in any underwritten
registration hereunder unless such Investor (i) agrees to sell such
Investor's Registrable Securities on the basis provided in any
underwriting arrangements in usual and customary form entered into by
the Company, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements,
and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable
by the Company pursuant to Section 5 below.
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5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualification fees, printers
and accounting fees, the fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel
selected by the Initial Investors pursuant to Sections 2(b) and 3(h)
hereof shall be borne by the Company and shall be included in the fees
paid to counsel under the Securities Purchase Agreement for purposes of
counsel selected by the Initial Investors.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
a. To the extent permitted by law, the Company will
indemnify, hold harmless and defend (i) each Investor who holds such
Registrable Securities, (ii) the directors, officers, partners,
employees, agents and each person who controls any Investor within the
meaning of the 1933 Act or the Securities Exchange Act of 1934, as
amended (the "1934 Act"), if any, (iii) any underwriter (as defined in
the 0000 Xxx) for the Investors, and (iv) the directors, officers,
partners, employees and each person who controls any such underwriter
within the meaning of the 1933 Act or the 1934 Act, if any (each, an
"Indemnified Person"), against any joint or several losses, claims,
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory
organization, whether commenced or threatened, in respect thereof,
"Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement
or the omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
misleading; (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to
the effective date of such Registration Statement, or 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; or (iii) any
violation or alleged violation by the Company of the 1933 Act, the 1934
Act, any other law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale
of the Registrable Securities (the matters in the foregoing clauses (i)
through (iii) being, collectively, "Violations"). Subject to the
restrictions set forth in Section 6(c) with respect to the number of
legal counsel, the Company shall reimburse the Indemnified Person,
promptly as such expenses are incurred and are due and payable, for any
reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
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indemnification agreement contained in this Section 6(a): (i) shall not
apply to a Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information furnished in
writing to the Company by any Indemnified Person or underwriter for
such Indemnified Person expressly for use in connection with the
preparation of such 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) hereof; (ii) 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; and (iii) with respect to
any preliminary prospectus, shall not inure to the benefit of any
Indemnified Person if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis
in the prospectus, as then amended or supplemented, such corrected
prospectus was timely made available by the Company pursuant to Section
3(c) hereof, 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. 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 Investors pursuant to Section 9.
b. In connection with any Registration Statement in
which an Investor is participating, each such Investor agrees severally
and not jointly to indemnify, hold harmless and defend, to the same
extent and in the same manner set forth in Section 6(a), the Company,
each of its directors, each of its officers who signs the Registration
Statement, each person, if any, who controls the Company within the
meaning of the 1933 Act or the 1934 Act, any underwriter and any other
shareholder selling securities pursuant to the Registration Statement
or any of its directors or officers or any person who controls such
shareholder or underwriter within the meaning of the 1933 Act or the
1934 Act (collectively and together with an Indemnified Person, an
"Indemnified Party"), against any Claim to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim arises out of or is based upon any Violation by such Investor, in
each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in
connection with such Registration Statement; and subject to Section
6(c) such Investor will reimburse any legal or other expenses (promptly
as such expenses are incurred and are due and payable) reasonably
incurred by them in connection with investigating or defending any such
Claim; provided, however, that the indemnity agreement contained in
this Section 6(b) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent
of such Investor, which consent shall not be unreasonably withheld;
provided, further, however, that the Investor shall be liable under
this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the net proceeds to such Investor as a
result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and
15
effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by the Investors pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any
preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis
in the prospectus, as then amended or supplemented.
c. Promptly after receipt by an Indemnified Person
or Indemnified Party under this Section 6 of notice of the commencement
of any action (including any governmental action), such Indemnified
Person or Indemnified Party shall, if a Claim in respect thereof is to
be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory to the indemnifying party
and the Indemnified Person or the Indemnified Party, as the case may
be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and
expenses to be paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual
or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in
such proceeding. The indemnifying party shall pay for only one
separate legal counsel for the Indemnified Persons or the Indemnified
Parties, as applicable, and such legal counsel shall be selected by
Investors holding a majority-in-interest of the Registrable Securities
included in the Registration Statement to which the Claim relates (with
the approval of a majority-in-interest of the Initial Investors), if
the Investors are entitled to indemnification hereunder, or the
Company, if the Company is entitled to indemnification hereunder, as
applicable. 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 actually prejudiced in its
ability to defend such action. 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 such expense,
loss, damage or liability is incurred and is due and payable.
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 contribution shall be made under
16
circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6, (ii)
no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation, and
(iii)contribution (together with any indemnification or other
obligations under this Agreement) 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 UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits of
Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the investors to sell
securities of the Company to the public without registration ("Rule
144"), the Company agrees to:
a. make and keep public information available, as
those terms are understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports
and other documents required of the Company under the 1933 Act and the
1934 Act so long as the Company remains subject to such requirements
(it being understood that nothing herein shall limit the Company's
obligations under Section 4(c) of the Securities Purchase Agreement)
and the filing of such reports and other documents is required for the
applicable provisions of Rule 144; and
c. furnish to each Investor so long as such
Investor owns Registrable Securities, promptly upon request, (i) a
written statement by the Company that it has complied with the
reporting requirements of Rule 144, the 1933 Act and the 1934 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
Investors to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights under this Agreement shall be automatically assignable
by the Investors to any transferee of all or any portion of Registrable
Securities if: (i) the Investor 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, (ii) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of (a) the name
and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or
assigned, (iii) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is
restricted under the 1933 Act and applicable state securities laws,
17
(iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this sentence, the transferee or
assignee agrees in writing with the Company to be bound by all of the
provisions contained herein, (v) such transfer shall have been made in
accordance with the applicable requirements of the Securities Purchase
Agreement, and (vi) such transferee shall be an "accredited investor"
as that term defined in Rule 501 of Regulation D promulgated under the
1933 Act.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with written consent of
the Company, each of the Initial Investors (to the extent such Initial
Investor still owns Registrable Securities) and Investors who hold a
majority interest of the Registrable Securities. Any amendment or
waiver effected in accordance with this Section 10 shall be binding
upon each Investor and the Company.
11. MISCELLANEOUS.
a. A person or entity is deemed to be a holder of
Registrable Securities whenever such person or entity owns of record
such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities
with respect to the same Registrable Securities, the Company shall act
upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
b. Any notices required or permitted to be given
under the terms hereof shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier
(including a recognized overnight delivery service) or by facsimile and
shall be effective five days after being placed in the mail, if mailed
by regular United States mail, or upon receipt, if delivered personally
or by courier (including a recognized overnight delivery service) or by
facsimile, in each case addressed to a party. The addresses for such
communications shall be:
If to the Company:
Cross Atlantic Commodities, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: [ ]
With a copy to:
Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to an Investor: to the address set forth immediately below such
Investor's name on the signature pages to the Securities Purchase
Agreement.
With a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
c. 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.
d. THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE
PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
UNITED STATES FEDERAL COURTS LOCATED NEW YORK, NEW YORK WITH RESPECT TO
ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO
IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES
FURTHER AGREE THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST
CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON THE PARTY IN ANY SUCH SUIT OR PROCEEDING. NOTHING HEREIN
SHALL AFFECT EITHER PARTY'S RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. BOTH PARTIES AGREE THAT A FINAL NON-APPEALABLE
JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY
OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN ANY DISPUTE
ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS' FEES, INCURRED BY THE PREVAILING PARTY
IN CONNECTION WITH SUCH DISPUTE.
e. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision hereof.
f. This Agreement, the Notes and the Securities
Purchase Agreement (including all schedules and exhibits thereto)
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
19
referred to herein and therein. This Agreement and the Securities
Purchase Agreement supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and
thereof.
g. Subject to the requirements of Section 9 hereof,
this Agreement shall be binding upon and inure to the benefit of the
parties and their successors and assigns.
h. The headings in this Agreement are for
convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.
i. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement and shall become
effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the
party so delivering this Agreement.
j. 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.
k. Except as otherwise provided herein, all
consents and other determinations to be made by the Investors pursuant
to this Agreement shall be made by Investors holding a majority of the
Registrable Securities, determined as if the all of the Notes then
outstanding have been converted into for Registrable Securities.
l. The Company acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to each Investor
by vitiating the intent and purpose of the transactions contemplated
hereby. Accordingly, the Company acknowledges that the remedy at law
for breach of its obligations under this Agreement will be inadequate
and agrees, in the event of a breach or threatened breach by the
Company of any of the provisions under this Agreement, that each
Investor shall be entitled, in addition to all other available remedies
in law or in equity, and in addition to the penalties assessable
herein, to an injunction or injunctions restraining, preventing or
curing any breach of this Agreement and to enforce specifically the
terms and provisions hereof, without the necessity of showing economic
loss and without any bond or other security being required.
m. 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.
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IN WITNESS WHEREOF, the Company and the undersigned Initial
Investors have caused this Agreement to be duly executed as of the date
first above written.
CROSS ATLANTIC COMMODITIES, INC.
/s/ Xxxxxxx Enemaerke
---------------------
Xxxxxxx Enemaerke
Chief Executive Officer and President
AJW PARTNERS, LLC
By: SMS Group, LLC
/s/ Xxxxx X. Xxxxxxxx
----------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
/s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
/s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS, II, LLC
By: First Street Manager II, LLC
/s/ Xxxxx X. Xxxxxxxx
------------------------
Xxxxx X. Xxxxxxxx
Manager
PHL_A #1956684 v1
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