REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
This Registration Rights Agreement (this “Agreement”) is made and entered into as of this
24th day of August, 2008 by and among Remedent, Inc., a Nevada corporation (the
“Company”), and Den-Mat Holdings, LLC (the “Initial Investor”) pursuant to that certain
Distribution, License and Manufacturing Agreement by and among the Company, Remedent, N.V, and
Den-Mat Holdings, LLC (the “DLMA”).
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following meanings:
“Affiliate” means, with respect to any person, any other person which directly or
indirectly controls, is controlled by, or is under common control with, such person.
“Business Day” means a day, other than a Saturday or Sunday, on which banks in New
York City are open for the general transaction of business.
“Common Stock” shall mean the Company’s common stock, par value $0.001 per share, and
any securities into which such shares may hereinafter be reclassified.
“Investors” shall mean the registered holders from time to time of the Warrants and/or
Registrable Securities.
“Person” means a person or entity.
“Prospectus” shall mean the prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.
“Register,” “registered” and “registration” refer to a registration
made by preparing and filing a Registration Statement in compliance with the 1933 Act (as defined
below), and the declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable Securities” or “Registrable Security” shall mean (i) the Warrant
Shares and (ii) any other securities issued or issuable with respect to or in exchange for
Registrable Securities; provided, that, a security shall cease to be a Registrable Security upon
(A) sale pursuant to a Registration Statement or Rule 144 under the 1933 Act, or (B) such security
becoming eligible for sale by the Investors without a volume limitation during a three (3) month
period pursuant to Rule 144.
“Registration Statement” shall mean any registration statement of the Company filed
under the 1933 Act that covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
“Required Investors” means the Investors holding a majority of the Registrable
Securities.
“SEC” means the U.S. Securities and Exchange Commission.
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Warrants” means the warrant to purchase an aggregate of 3,378,379 shares of Common
Stock, dated concurrently with this Agreement, issued by the Company to the Initial Investor and
any replacement or successor warrants issued in accordance with the terms thereof.
“Warrant Shares” means the shares of Common Stock issuable upon the exercise of the
Warrants.
2. Registration.
(a) Registration Statements.
(i) Within seventy-five (75) days after the date of this Agreement (the “Filing Deadline”),
the Company shall prepare and file with the SEC a Registration Statement on Form S-3 (or, if Form
S-3 is not then available to the Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable Securities), covering the resale
of the Registrable Securities in an amount at least equal to the Warrant Shares. Such Registration
Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated
thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock
resulting from stock splits, stock dividends or similar transactions with respect to the
Registrable Securities. The Registration Statement (and each amendment or supplement thereto, and
each request for acceleration of effectiveness thereof) shall be provided in accordance with
Section 3(c) to counsel for the Initial Investor prior to its filing or other submission.
(ii) Additional Registrable Securities. Upon any change in the Warrant Price (as
defined in the Warrant) such that additional shares of Common Stock become issuable upon the
exercise of the Warrants, upon the written demand of any Investor the Company shall prepare and
file with the SEC within thirty (30) days after such demand one or more Registration Statements on
Form S-3 or amend the Registration Statement filed pursuant to clause (i) above, if such
Registration Statement has not previously been declared effective (or, if Form S-3 is not then
available to the Company, on such form of registration statement as is then available to effect a
registration for resale of such additional shares of Common Stock (the “Additional Shares”))
covering the resale of the Additional Shares, but only to the extent the Additional Shares are not
at the time covered by an effective Registration Statement. Such Registration Statement also shall
cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including
Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Additional Shares. The
Registration Statement (and each amendment or supplement thereto, and each request for acceleration
of effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investors’
counsel prior to its filing or other submission.
(iii) S-3 Qualification. If the Registration Statement is not initially filed on Form
S-3, then promptly following the date (the “Qualification Date”) upon which the Company becomes
eligible to use a registration statement on Form S-3 to register the Registrable Securities or
Additional Shares, as applicable, for resale, but in no event more than thirty (30) days after the
Qualification Date (the “Qualification Deadline”), the Company shall file a registration statement
on Form S-3 covering the Registrable Securities or Additional Shares, as applicable (or a
post-effective amendment on Form S-3 to the then effective Registration Statement) (a “Shelf
Registration Statement”) and shall use commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective as promptly as practicable thereafter.
(b) Expenses. The Company will pay all expenses associated with each registration,
including filing and printing fees, the Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under applicable state securities
laws, listing
fees, fees and expenses of counsel to the Investors and the Investors’ reasonable expenses in
connection with the registration, but excluding discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals with respect to the
Registrable Securities being sold.
(c) Effectiveness.
(i) The Company shall use commercially reasonable efforts to have the Registration Statement
declared effective as soon as practicable. The Registration Statement shall be declared effective
by the SEC within (i) five (5) Business Days after the SEC shall have informed the Company that no
review of the Registration Statement will be made or (ii) within one hundred thirty five (135) days
after the date of this Agreement (one hundred sixty five (165) days if the Registration Statement
is reviewed by the SEC), and each Registration Statement covering Additional Shares shall be
declared effective by the SEC within ninety (90) days following the time such Registration
Statement was required to be filed pursuant to Section 2(a)(ii) (120 days if the Registration
Statement is reviewed by the SEC) and any Shelf Registration Statement shall be declared effective
by the SEC within ninety (90) days after the Qualification Deadline (120 days if the Registration
Statement is reviewed by the SEC). The Company shall notify the Investors by facsimile or e-mail
as promptly as practicable, and in any event, within twenty-four (24) hours, after any Registration
Statement is declared effective and shall simultaneously provide the Investors with copies of any
related Prospectus to be used in connection with the sale or other disposition of the securities
covered thereby.
(ii) For not more than twenty (20) consecutive days or for a total of not more than forty-five
(45) days in any twelve (12) month period, the Company may delay the disclosure of material
non-public information concerning the Company, by suspending the use of any Prospectus included in
any registration contemplated by this Section containing such information, the disclosure of which
at the time is not, in the good faith opinion of the Board of Directors of the Company (as set
forth in a resolution of the Board of Directors), in the best interests of the Company (an “Allowed
Delay”); provided, that the Company shall promptly (a) 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, (b) advise the Investors in writing to cease all sales
under the Registration Statement until the end of the Allowed Delay and (c) use commercially
reasonable efforts to terminate an Allowed Delay as promptly as practicable.
3. Company Obligations. The Company will use commercially reasonable efforts to effect
the registration of the Registrable Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible:
(a) use commercially reasonable efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate upon the earlier of
(i) the date on which all Registrable Securities covered by such Registration Statement as amended
from time to time cease to be Registrable Securities (the “Effectiveness Period”) and advise the
Investors in writing when the Effectiveness Period has expired;
(b) prepare and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the Registration Statement
effective for the Effectiveness Period and to comply with the provisions of the 1933 Act and the
1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;
(c) provide copies to and permit counsel designated by the Investors and acceptable to the
Company to review each Registration Statement no fewer than five (5) business days prior to its
filing with the SEC and each amendment and supplement thereto no fewer than three (3) Business
Days prior to its filing with the SEC, and not file any document to which such counsel reasonably
objects;
(d) furnish to the Investors’ legal counsel (i) promptly after the same is prepared and
publicly distributed, filed with the SEC or received by the Company (but not later than two (2)
Business Days after the filing date, receipt date or sending date, as the case may be) one (1) copy
of any Registration Statement and any amendment thereto, each preliminary prospectus and Prospectus
and each amendment or supplement thereto, and 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) such
number of copies of a Prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such Investor that are covered by
the related Registration Statement;
(e) use commercially reasonable efforts to (i) prevent the issuance of any stop order or other
suspension of effectiveness and, (ii) if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(f) prior to any public offering of Registrable Securities, use commercially reasonable
efforts to register or qualify or cooperate with the Investors and their counsel in connection with
the registration or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions requested by the Investors and do any and all
other commercially reasonable acts or things necessary or advisable to enable the distribution in
such jurisdictions of the Registrable Securities covered by the Registration Statement; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto
to (i) qualify to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(f), (ii) subject itself to general taxation in any jurisdiction
where it would not otherwise be so subject but for this Section 3(f), or (iii) file a general
consent to service of process in any such jurisdiction;
(g) use commercially reasonable efforts to cause all Registrable Securities covered by a
Registration Statement to be listed on each securities exchange, interdealer quotation system or
other market on which similar securities issued by the Company are then listed;
(h) immediately notify the Investors, at any time when a Prospectus relating to Registrable
Securities is required to be delivered under the 1933 Act, upon discovery that, or upon the
happening 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 any material
fact required to be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and at the request of any such holder, promptly prepare
and furnish to such holder a reasonable number of copies of a supplement to or an amendment of such
Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus shall not include an 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 in light of the circumstances then existing; and
(i) otherwise use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, take such other actions as may be
reasonably necessary to facilitate the registration of the Registrable Securities hereunder; and
make available to its security holders, as soon as reasonably practicable, but not later than the
Availability Date (as defined below), an earnings statement covering a period of at least twelve
(12) months, beginning after the effective date of each Registration Statement, which earnings
statement shall satisfy the
provisions of Section 11(a) of the 1933 Act, including Rule 158 promulgated thereunder (for
the purpose of this subsection 3(i), “Availability Date” means the 45th day following the end of
the fourth fiscal quarter that includes the effective date of such Registration Statement, except
that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability
Date” means the 90th day after the end of such fourth fiscal quarter).
(j) With a view to making available to the Investors the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any time permit the
Investors to sell shares of Common Stock to the public without registration, the Company covenants
and agrees to: (i) make and keep public information available, as those terms are understood and
defined in Rule 144, until the earlier of (A) six (6) months after such date as all of the
Registrable Securities cease to be Registrable Securities or (B) such date as all of the
Registrable Securities shall have been resold; (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the 1934 Act; and (iii) furnish to each
Investor upon request, as long as such Investor owns any Registrable Securities, (A) a written
statement by the Company that it has complied with the reporting requirements of the 1934 Act, (B)
a copy of the Company’s most recent Annual Report on Form 10-KSB or successor form or Quarterly
Report on Form 10-QSB or successor form, and (C) such other information as may be reasonably
requested in order to avail such Investor of any rule or regulation of the SEC that permits the
selling of any such Registrable Securities without registration.
4. Due Diligence Review; Information. The Company shall make available, during normal
business hours, for inspection and review by the Investors, advisors to and representatives of the
Investors (who may or may not be affiliated with the Investors and who are reasonably acceptable to
the Company), all financial and other records, all SEC filings, and all other corporate documents
and properties of the Company as may be reasonably necessary for the purpose of such review, and
cause the Company’s officers, directors and employees, within a reasonable time period, to supply
all such information reasonably requested by the Investors or any such representative, advisor or
underwriter in connection with such Registration Statement (including, without limitation, in
response to all questions and other inquiries reasonably made or submitted by any of them), prior
to and from time to time after the filing and effectiveness of the Registration Statement for the
sole purpose of enabling the Investors and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company and the accuracy of such Registration Statement.
The Company shall not disclose material nonpublic information to the Investors, or to advisors
to or representatives of the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides the Investors,
such advisors and representatives with the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain such information enters into an
appropriate confidentiality agreement with the Company with respect thereto.
5. Obligations of the Investors.
(a) Each Investor shall furnish in writing 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 five (5) Business Days prior to the first anticipated
filing date of any Registration Statement, the Company shall notify each Investor of the
information the Company requires from such Investor if such Investor elects to have any of the
Registrable Securities included in the Registration Statement. An Investor shall provide such
information to the Company at least two (2) Business Days prior to the first anticipated filing
date of such Registration Statement if such Investor
elects to have any of the Registrable Securities included in the Registration Statement. For
so long as the Initial Investor is the only Investor, the Company may delay the filing of the
Registration Statement until such information is furnished by the Initial Investor, and the Filing
Deadline, the thirty (30) day period referred to in Section 2(a)(ii) and the ninety (90) day, one
hundred twenty (120) day, one hundred thirty-five (135) day and one hundred sixty-five (165) day
periods referred to in Section 2(c) and the Qualification Deadline shall be extended for a period
equivalent to the period of such delay.
(b) Each Investor, by its 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
a Registration Statement hereunder, unless such Investor has notified the Company in writing of its
election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from the Company of either (i) the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event
pursuant to Section 3(h) hereof, such Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such Registrable Securities,
until the Investor’s receipt of the copies of the supplemented or amended prospectus filed with the
SEC and until any related post-effective amendment is declared effective and, if so directed by the
Company, the 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 the Investor’s possession of the
Prospectus covering the Registrable Securities current at the time of receipt of such notice.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and hold harmless each
Investor and its officers, directors, members, managers, employees and agents, successors and
assigns, and each other ‘person’, if any, who controls such Investor within the meaning of the 1933
Act, against any losses, claims, damages or liabilities, joint or several, to which any of them may
become subject under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of, relate to or are based upon: (i) any
untrue statement or alleged untrue statement of any material fact contained in any Registration
Statement, any preliminary prospectus or final prospectus contained therein, or any amendment or
supplement thereof; (ii) any blue sky application or other document executed by the Company or
based upon written information furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Registrable Securities under the securities laws thereof (any
such application, document or information herein called a "Blue Sky Application"); (iii) the
omission or alleged omission to state in a Registration Statement or Blue Sky Application a
material fact required to be stated therein or necessary to make the statements therein not
misleading; (iv) any violation by the Company or its agents of any rule or regulation promulgated
under the 1933 Act applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with the registration of the Registrable Securities and the
other actions contemplated by this Agreement; or (v) any failure to register or qualify the
Registrable Securities included in any such Registration in any state where the Company or its
agents has affirmatively undertaken or agreed in writing that the Company will undertake such
registration or qualification on an Investor’s behalf, and the Company will reimburse such
Investor, and each such officer, director or member and each such controlling person, as incurred,
for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information furnished by such
Investor or any such controlling person in writing specifically for use in such Registration
Statement or Prospectus.
(b) Indemnification by the Investors. Each Investor agrees, severally but not jointly,
to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each ‘person’ who controls the Company (within the meaning of
the 0000 Xxx) against any losses, claims, damages, liabilities and expense (including reasonable
attorney fees) resulting from any untrue statement of a material fact or any omission of a material
fact required to be stated in the Registration Statement or Prospectus or preliminary prospectus or
amendment or supplement thereto or necessary to make the statements therein not misleading, to the
extent, but only to the extent that such untrue statement or omission is contained in any
information furnished in writing by such Investor to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto; provided, however, that
the obligations of such Investor hereunder shall not apply to amounts paid in settlement of any
such claims, losses, damages or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such Investor (which consent shall not be unreasonably withheld);
and provided that in no event shall the liability of an Investor be greater in amount than the
dollar amount of the proceeds (net of all commissions and similar payments incurred in connection
with the sale of Registrable Securities and net of all expenses paid by such Investor in connection
with any claim relating to this Section 6 and the amount of any damages such Investor has otherwise
been required to pay by reason of such untrue statement or omission) received by such Investor upon
the sale of the Registrable Securities included in the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification
hereunder shall (i) give notice to the indemnifying party of any claim with respect to which it
seeks indemnification promptly after such Person has actual knowledge of any claim as to which
indemnity may be sought and (ii) permit such indemnifying party to assume the defense of such claim
and any litigation resulting therefrom with counsel reasonably satisfactory to the indemnified
party; provided that any Person entitled to indemnification hereunder shall have the right
to employ separate counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (a) the indemnifying party
has agreed to pay such fees or expenses, or (b) the indemnifying party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to such person or (c) in the
reasonable judgment of any such person, based upon written advice of its counsel, a conflict of
interest exists between such Person and the indemnifying party with respect to such claims (in
which case, if the Person notifies the indemnifying party in writing that such Person elects to
employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such claim on behalf of such Person); and provided,
further, that the failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations hereunder, except to the extent that such
failure to give notice shall materially adversely affect the indemnifying party in the defense of
any such claim or litigation. It is understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one
separate firm of attorneys at any time for all such indemnified parties. No indemnifying party
will, except with the consent of the indemnified party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability in respect of such
claim or litigation. Each indemnified party shall furnish such information regarding itself or the
claim in question as an indemnifying party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and litigation resulting therefrom.
(d) Contribution. If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any
other relevant equitable considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution from any
person not guilty of such fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in amount than the dollar amount of the
proceeds (net of all commissions and similar payments incurred in connection with the sale of
Registrable Securities and net of all expenses paid by such holder in connection with any claim
relating to this Section 6 and the amount of any damages such holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received
by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended only by a writing signed by
the Company and the Required Investors. The Company may take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the Required Investors.
(b) Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii)
if given by mail, then such notice shall be deemed given upon the earlier of (A) receipt of such
notice by the recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iii) if given by an internationally recognized overnight air courier, then
such notice shall be deemed given one business day after delivery to such carrier. All notices
shall be addressed as follows: if to the Initial Investor, at its address as set forth in the
Company’s books and records and, if to the Company, at the address as follows, or at such other
address as the Initial Investor or the Company may designate by notice to the other given in
accordance with this Section 7(b):
If to the Company:
Remedent, Inc.
Xxxxxx xx Xxxxxxxx 00
0000, Xxxxxx, Xxxxxxx
Attention: Xxxxx List, Chief Executive Officer
Xxxxxx xx Xxxxxxxx 00
0000, Xxxxxx, Xxxxxxx
Attention: Xxxxx List, Chief Executive Officer
(c) Assignments and Transfers by Investors. The provisions of this Agreement shall be
binding upon and inure to the benefit of the Required Investors and their respective successors and
assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more
Persons its rights hereunder in connection with the transfer of Registrable Securities by such
Investor to such Person, provided that such Investor complies with all laws applicable thereto and
provides written notice of assignment to the Company promptly after such assignment is effected.
(d) Assignments and Transfers by the Company. This Agreement may not be assigned by
the Company (whether by operation of law or otherwise) without the prior written consent of the
Required Investors, provided, however, that the Company may assign its rights and delegate its
duties hereunder to any surviving or successor corporation in connection with a merger or
consolidation of the Company with another corporation, or a sale, transfer or other disposition of
all or substantially all of the Company’s assets to another corporation, without the prior written
consent of the Required Investors,
after notice duly given by the Company to each Investor and written confirmation from such
surviving or successor corporation of its acceptance of the obligations of the Company under this
Agreement.
(e) Benefits of the Agreement. The terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective permitted successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except the Persons referred to in
Section 6 as being entitled to indemnification are intended to be third party beneficiaries of this
Agreement.
(f) Counterparts. This Agreement may be executed in one or more counterparts, all of
which will be considered one and the same agreement and will become effective when one or more
counterparts have been signed by each party and delivered to the other party, regardless of whether
both parties have executed the same counterpart. Counterparts may be delivered via facsimile,
electronic mail (including pdf) or other transmission method and any counterpart so delivered shall
be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(g) Titles and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any respect.
(i) Further Assurances. The parties shall execute and deliver all such further
instruments and documents and take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein
contained.
(j) 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. This
Agreement supersedes all prior agreements and understandings between the parties with respect to
such subject matter.
(k) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW RULE THAT WOULD CAUSE THE APPLICATION OR THE
LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF NEW YORK TO THE RIGHTS AND
DUTIES OF THE PARTIES.
(l) Consent to Jurisdiction.
(i) EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTIES
AND ASSETS, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN THE COUNTY OF
NEW YORK OR THE UNITED STATED OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY APPELLATE COURT THEREFROM (COLLECTIVELY, THE “NEW YORK COURTS”),
IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT RELATING THERETO, AND EACH OF THE PARTIES
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH PROCEEDING SHALL BE
HEARD AND DETERMINED IN THE NEW YORK COURTS. EACH OF THE PARTIES AGREES THAT A FINAL JUDGMENT IN
ANY SUCH PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
(ii) EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN ANY OF THE NEW YORK COURTS. EACH OF THE PARTIES IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
PROCEEDING IN ANY OF THE NEW YORK COURTS.
(m) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the Company and the Investor, by their respective authorized
representatives set forth below, have signed this Agreement as of the Effective Date.
| DEN-MAT HOLDINGS, LLC | ||
the “Company”
|
the “Initial Investor” | |
By: /s/
|
By: /s/ | |
Name: Guy De Vreese
|
Name: Xxxxxxxx Xxxx | |
Title: Chairman of the Board
|
Title: Chief Executive Officer |
