Exhibit 4.3
EXHIBIT A
TO
COMMON STOCK PURCHASE
AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of March 31, 2000
(this "Agreement"), is made by and between ALTAIR INTERNATIONAL INC. an Ontario
corporation, with headquarters located at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx,
Xxxxxxx 00000 (the "Company"), and the entity named on the signature page hereto
(each, an "Initial Investor") (each agreement with an Initial Investor being
deemed a separate and independent agreement between the Company and such Initial
Investor, except that each Initial Investor acknowledges and consents to the
rights granted to each other Initial Investor under such agreement)
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of the
Common Stock Purchase Agreement, dated as of March 31, 2000, between Investor
and the Company (the "Common Stock Purchase Agreement;" terms not otherwise
defined herein shall have the meanings ascribed to them in the Common Stock
Purchase Agreement), the Company has agreed to issue and sell to Investor the
Initial Shares, together with the Repriced Shares (collectively, the "Shares");
WHEREAS, the Company has agreed to issue the Warrant to
Investor in connection with the issuance of the Shares; and
WHEREAS, to induce Investor to execute and deliver the Common
Stock Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act with respect to the Shares and the Warrant
Shares (as defined below).
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
Investor hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
1
(a) "Potential Material Event" means any of the following:(i)
the possession by the Company of material information not ripe for disclosure in
a Registration Statement, which shall be evidenced by determinations in good
faith by the Board of Directors of the Company that disclosure of such
information in the Registration Statement would be detrimental to the business
and affairs of the Company; or (ii) any material engagement or activity by the
Company which would, in the good faith determination of the Board of Directors
of the Company, be adversely affected by disclosure in a Registration Statement
at such time, which determination shall be accompanied by a good faith
determination by the Board of Directors of the Company that the Registration
Statement would be materially misleading absent the inclusion of such
information;
(b) "Register," "Registered," and "Registration" refer to a
Registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis, and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the "SEC");
(c) "Registrable Securities" mean the Shares and the Warrant
Shares and the Securities listed on Schedule 5(b); and
(d) "Registration Statement" means a registration statement
of the Company under the Securities Act, or an amendment to an existing
registration statement.
2. Registration.
(a) Mandatory Registration.
(i) The Company shall prepare and file with the SEC, as soon
as possible after the Initial Closing and no later than a date (the "Required
Filing Date"), which is thirty (30) days following the Initial Closing, either a
Registration Statement on Form S-3 or an amendment to an existing Registration
Statement, in either event Registering for resale by Investor a sufficient
number of shares of Common Stock for Investor to sell the Registrable Securities
(or such lesser number as may be required by the SEC, but in no event less than
(i) two hundred percent (200%) of the aggregate number of Initial Shares, and
(ii) the number of shares of Common Stock that would be issued upon exercise of
the Warrant (the "Warrant Shares") at the time of filing of the Registration
Statement (assuming for such purposes that the Warrant had been eligible to be
exercised and had been exercised in accordance with its terms, whether or not
such eligibility or exercise had in fact occurred as of such date). The
Registration Statement shall state that, in accordance with Rule 416 and 457
under the Securities Act, it covers such indeterminate number of additional
shares of Common Stock as may become issuable upon repricing of the Initial
2
Shares and the exercise of the Warrant to prevent dilution resulting from stock
splits or stock dividends. The Company will use its reasonable best efforts to
cause such Registration Statement to be declared effective on a date (a
"Required Effective Date"), which is no later than the earlier of (y) five (5)
Business Days after notice by the SEC that it may be declared effective or (z)
ninety (90) days after the date of the Initial Closing.
(ii) If at any time (an "Increased Registered Shares Date"),
the number of shares of Common Stock represented by the Registrable Securities ,
issued or to be issued as contemplated by the Transaction Documents, exceeds the
aggregate number of shares of Common Stock then Registered, the Company shall,
within ten (10) Business Days after receipt of a written notice from Investor,
either: (x) amend the Registration Statement filed by the Company pursuant to
the preceding provisions of this Section 2, if such Registration Statement has
not been declared effective by the SEC at that time, to Register two hundred
percent (200%) of such Registrable Shares, computed as contemplated by the
immediately preceding subparagraph (i); or (y) if such Registration Statement
has been declared effective by the SEC at that time, file with the SEC an
additional Registration Statement (an "Additional Registration Statement") to
Register two hundred percent (200%) of the shares of Common Stock represented by
the Registrable Shares, computed as contemplated by the immediately preceding
subparagraph (i), that exceed the aggregate number of shares of Common Stock
already Registered. The Company will use its reasonable best efforts to cause
such Registration Statement to be declared effective on a date (a "Required
Effective Date") which is no later than (q) with respect to a Registration
Statement under clause (x) of this subparagraph (ii), the Required Effective
Date contemplated by the immediately preceding subparagraph (i) and (r) with
respect to an Additional Registration Statement, the earlier of (i) five (5)
Business Days after notice by the SEC that it may be declared effective or (ii)
forty (40) days after the Increased Registered Shares Date.
(b) Payments by the Company.
(i) If the Registration Statement covering the
Registrable Securities is not filed in proper form with the SEC by the Required
Filing Date, the Company will make payment to Investor in such amounts and at
such times as shall be determined pursuant to this Section 2(b);
(ii) If the Registration Statement covering the
Registrable Securities is not effective by thirty (30) days after the relevant
Required Effective Date or if Investor is restricted from making sales of
Registrable Securities covered by a previously effective Registration Statement
at any time (the date such restriction commences, a "Restricted Sale Date")
after the Effective Date other than during a Suspension Period (as defined
below), then the Company will make payments to Investor in such amounts and at
such times as shall be determined pursuant to this Section 2(b);
3
(iii) The amount (each a "Periodic Amount") to be paid by
the Company to Investor shall be determined as of each Computation Date (as
defined below) and the Periodic Amount shall be equal to the Periodic Amount
Percentage (as defined below) of the Purchase Price for all of the Initial
Shares for the period from the date following the relevant Required Filing Date,
Required Effective Date or Restricted Sale Date, as the case may be, to the
first relevant Computation Date, and thereafter to each subsequent Computation
Date. The "Periodic Amount Percentage" means (A) two percent (2%) of the
Purchase Price for the period from the date following the relevant Required
Filing Date, Required Effective Date or Restricted Sale Date, as the case may
be, to the second relevant Computation Date, and (B) three percent (3%) of the
Purchase Price to each Computation Date thereafter (prorated on a daily basis if
such period is less than thirty (30) days). By way of illustration and not in
limitation of the foregoing, if the Registration Statement for the Registrable
Securities relating to the Common Stock and Warrants issued on the Initial
Closing Date is timely filed but is not declared effective until one hundred
sixty-five (165) days after the date of the Initial Closing, the Periodic Amount
will aggregate five and one-half percent (5 1/2%) of the Purchase Price (2% for
days 91-120, 2% for days 121-150, and 1 1/2% for days 151-165).
(iv) Each Periodic Amount will be payable by the Company
in cash or other immediately available funds to Investor at the end of each
Computation Period, without requiring demand therefor by Investor;
(v) The parties acknowledge that the damages which may
be incurred by Investor if the Registration Statement is not filed by the
Required Filing Date or if the Registration Statement has not been declared
effective by a Required Effective Date, including if the right to sell
Registrable Securities under a previously effective Registration Statement is
suspended, may be difficult to ascertain. The parties agree that the Periodic
Amount represents a reasonable estimate on the part of the parties, as of the
date of this Agreement, of the amount of such damages;
(vi) Notwithstanding the foregoing, the amounts payable
by the Company pursuant to this Section 2(b) shall not be payable to the extent
any delay in the effectiveness of the Registration Statement occurs because of
an act of, or a failure to act or to act timely by Investor or its counsel, or
in the event all of the Registrable Securities may be sold pursuant to Rule 144
or another available exemption under the Securities Act; and
(vii) "Computation Date" means (A) the date which is the
earlier of (1) thirty (30) days after the Required Filing Date, any relevant
Required Effective Date or a Restricted Sale Date, as the case may be, or (2)
the date after the Required Filing Date, such Required Effective Date or
Restricted Sale Date on which the Registration Statement is filed (with respect
to payments due as contemplated by Section 2(b)(i) hereof) or is declared
effective or has its restrictions removed (with respect to payments due as
contemplated by Section 2(b)(ii) hereof), as the case may be, and (B) each date
which is the earlier of (1) thirty (30) days after the previous Computation Date
or (2) the date after the previous Computation Date on which the Registration
4
Statement is filed (with respect to payments due as contemplated by Section
2(b)(i) hereof) or is declared effective or has its restrictions removed (with
respect to payments due as contemplated by Section 2(b)(ii) hereof), as the case
may be.
3. Obligations of the Company. In connection with the
Registration of the Registrable Securities, the Company shall do each of the
following:
(a) Prepare promptly, and file with the SEC by the Required
Filing Date, a Registration Statement with respect to not less than the number
of Registrable Securities provided in Section 2(a) above, and thereafter use its
reasonable best efforts to cause such Registration Statement relating to
Registrable Securities to become effective by the Required Effective Date and
keep the Registration Statement effective at all times during the period (the
"Registration Period") continuing until the earliest of: (i) the date that is
two (2) years after the last day of the calendar month following the month in
which the Final Repricing Period ends; (ii) the date when Investor may sell all
Registrable Securities under Rule 144; or (iii) the date when Investor no longer
owns any of the Registrable Securities, 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,
in light of the circumstances in which they were made, not misleading;
(b) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement as may be
necessary to keep the Registration Statement effective at all times during the
Registration Period, and, during the Registration Period, comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company covered by the Registration Statement
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 Statement;
(c) The Company shall permit a single firm of counsel
designated by Investor to review the Registration Statement and all amendments
and supplements thereto a reasonable period of time (but not less than three (3)
Business Days) prior to their filing with the SEC, and not file any document in
a form to which such counsel reasonably objects;
(d) Notify Investor and Investor's legal counsel identified
to the Company (which, until further notice, shall be deemed to be Xxxxxxx &
Xxxxxx, LLP, ATTN: Xxxxxx Xxxxxxx, Esq.; "Investor's Counsel") (and, in the case
of (i)(A) below, not less than five (5) Business Days prior to such filing) and
(if requested by any such person) confirm such notice in writing no later than
one (1) Business Day following the day (i): (A) when a prospectus or any
prospectus supplement or post-effective amendment to the Registration Statement
5
is proposed to be filed; (B) whenever the SEC notifies the Company whether there
will be a "review" of such Registration Statement; (C) whenever the Company
receives (or a representative of the Company receives on its behalf) any oral or
written comments from the SEC in respect of a Registration Statement (copies or,
in the case of oral comments, summaries of such comments shall be promptly
furnished by the Company to Investor); and (D) with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or any other Federal or state governmental
authority for amendments or supplements to the Registration Statement or
prospectus or for additional information; (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement
covering any or all of the Registrable Securities or the initiation of any
proceedings for that purpose; (iv) if at any time any of the representations or
warranties of the Company contained in any agreement (including any underwriting
agreement) contemplated hereby ceases to be true and correct in all material
respects; (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and (vi) of the occurrence of
any event that to the best knowledge of the Company makes any statement made in
the Registration Statement or prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, prospectus or other
documents so that, in the case of the Registration Statement or the prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. In addition, the Company shall furnish Investor with
copies of all intended written responses to the comments contemplated in clause
(C) of this Section 3(d) not later than one (1) Business Day in advance of the
filing of such responses with the SEC so that Investor shall have the
opportunity to comment thereon;
(e) Furnish to Investor and Investor's Counsel: (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, two (2) copies of the Registration Statement, each
preliminary prospectus and prospectus, and each amendment or supplement thereto;
and (ii) such number of copies of a prospectus, and all amendments and
supplements thereto and such other documents, as Investor may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
Investor;
(f) As promptly as practicable after becoming aware thereof,
notify Investor of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement or other appropriate filing with the
6
SEC to correct such untrue statement or omission, and deliver a number of copies
of such supplement or amendment to Investor as Investor may reasonably request;
(g) As promptly as reasonably practicable after becoming
aware thereof, notify Investor of the issuance by the SEC any notice of
effectiveness or any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time;
(h) Notwithstanding the foregoing, if at any time or from
time to time after the date of effectiveness of the Registration Statement, the
Company notifies Investor in writing of the existence of a Potential Material
Event, Investor shall not offer or sell any Registrable Securities, or engage in
any other transaction involving or relating to the Registrable Securities, from
the time of the giving of notice with respect to a Potential Material Event
until Investor receives written notice from the Company that such Potential
Material Event either has been disclosed to the public or no longer constitutes
a Potential Material Event; provided, however, that the Company may not so
suspend the right to such holders of Registrable Securities for more than two
twenty (20)-day periods in the aggregate during any 12-month period ("Suspension
Period") with at least a ten (10) Business Day interval between such periods,
during the periods the Registration Statement is required to be in effect;
(i) Use its reasonable efforts to secure and maintain the
listing of all the Registrable Securities covered by the Registration Statement
on the Nasdaq National Market System.
(j) Provide a transfer agent for the Registrable Securities
not later than the effective date of the Registration Statement;
(k) Cooperate with Investor to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and enable such certificates for
the Registrable Securities to be in such denominations or amounts as the case
may be, as Investor may reasonably 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 Investor), an appropriate instruction and opinion of
such counsel; and
(l) Take all other reasonable actions necessary to expedite
and facilitate disposition by Investor of the Registrable Securities pursuant to
the Registration Statement.
4. Obligations of Investor. In connection with the
Registration of the Registrable Securities, Investor shall have the following
obligations:
7
(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 Investor, that 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 ten (10) days prior
to the first anticipated filing date of the Registration Statement, the Company
shall notify Investor of the information the Company requires from Investor (the
"Requested Information") if Investor elects to have any of the Registrable
Securities included in the Registration Statement. If at least two (2) Business
Days prior to the filing date the Company has not received the Requested
Information from Investor, then the Company need not file the Registration
Statement until receiving the response of Investor;
(b) Investor, by accepting the Registrable Securities, agrees
to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of the Registration Statement
hereunder, unless Investor has notified the Company in writing of its election
to exclude all of the Registrable Securities from the Registration Statement;
and
(c) 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), above, Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until Investor receives the copies of the supplemented or amended
prospectus contemplated by Section 3(f) or 3(g).
5. Expenses of Registration. (a) All reasonable expenses
incurred by the Company in connection with Registrations, filings or
qualifications pursuant to Section 3, including, without limitation, all
Registration, listing, and qualifications fees, printers and accounting fees,
and the fees and disbursements of counsel for the Company shall be borne by the
Company; and
(b) Except as otherwise provided for in Schedule 5(b)
attached hereto, the Company nor any of its subsidiaries has, as of the date
hereof, and the Company shall not on or after the date of this Agreement, enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to Investor in this Agreement or otherwise conflicts with the
provisions hereof. Except as otherwise provided for in Schedule 5(b), the
Company has not previously entered into any agreement granting any registration
rights with respect to any of its securities to any person. Except as otherwise
provided for in this Section 5, and without limiting the generality of the
foregoing, without the written consent of Investor, the Company shall not grant
to any person the right to request the Company to Register any securities of the
Company under the Securities Act unless the rights so granted are subject in all
8
respects to the prior rights in full of Investor set forth herein, and are not
otherwise in conflict or inconsistent with the provisions of this Agreement and
the other Transaction Documents.
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 and hold harmless Investor, the directors, if any, of Investor, the
officers, if any, of Investor, each person, if any, who controls Investor within
the meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (each, an "Indemnified Party"), against any losses,
claims, damages, liabilities or expenses (joint or several) incurred
(collectively, "Claims") to which any Investor may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations in the Registration Statement, or any post-effective amendment
thereof, or any prospectus included therein: (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any post-effective amendment thereof or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading; (ii) any untrue statement or alleged
untrue statement of a material fact contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged omission to state
therein any material fact necessary to make the statements made therein, in
light of the circumstances under which the statements therein were made, not
misleading; or (iii) any material violation or alleged material violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation under the Securities Act, the Exchange Act or any state
securities law (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to Section 6(b), the Company shall
reimburse Investor, promptly as such expenses are incurred and are due and
payable, for any legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a) shall not: (I) 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 or on behalf of any
Indemnified Party expressly for use in connection with the preparation of the
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) be available to the extent such Claim is based on a failure of
Investor to deliver or cause to be delivered the prospectus made available by
the Company; or (III) 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. Investor will indemnify the Company
and its officers, directors and agents (each, an "Indemnified Party") against
any claims arising out of or based upon a Violation which occurs in reliance
9
upon and in conformity with information furnished in writing to the Company, by
or on behalf of Investor, expressly for use in connection with the preparation
of the Registration Statement, subject to such limitations and conditions as are
applicable to the Indemnification provided by the Company to this Section 6.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Party.
(b) Promptly after receipt by an Indemnified Party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such 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 Party, as
the case may be. In case any such action is brought against any Indemnified
Party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified,
assume the defense thereof, subject to the provisions herein stated and after
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party under this Section 6 for any legal or other reasonable
out-of-pocket expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation, unless the indemnifying party shall not pursue the action of its
final conclusion. The Indemnified Party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and reasonable out-of-pocket expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the Indemnified
Party. 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 Party under this Section
6, except to the extent that the indemnifying party is 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: (a) no contribution shall be made under
circumstances where the maker would not have been liable for indemnification
under the fault standards set forth in Section 6; (b) no seller of Registrable
Securities guilty of fraudulent misrepresentation (within the meaning of Section
10
11(f) of the Securities Act) shall be entitled to contribution from any seller
of Registrable Securities who was not guilty of such fraudulent
misrepresentation; and (c) contribution by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8. Reports under Securities Act and Exchange Act. (i) With a
view to making available to Investor the benefits of Rule 144 promulgated under
the Securities Act or any other similar rule or regulation of the SEC that may
at any time permit Investor to sell securities of the Company to the public
without Registration ("Rule 144"), until such time as all of the Registrable
Securities may be sold without volume limitation pursuant to subsection (k) of
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 Securities Act and the
Exchange Act; and
(c) furnish to Investor promptly upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of
the Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company and (iii) such other information as may be reasonably requested
to permit Investor to sell such securities pursuant to Rule 144 without
Registration.
(ii) The Company will, at the request of any Holder of
Registrable Securities, upon receipt from such Holder of a certificate
certifying (a) that such Holder has held such Registrable Securities for a
period of not less than two (2) years, (b) that such Holder has not been an
affiliate (as defined in Rule 144) of the company for more than the ninety (90)
preceding days, and (c) as to such other matters as may be appropriate in
accordance with such Rule, remove from the stock certificate representing such
Registrable Securities that portion of any restrictive legend which relates to
the registration provisions of the Securities Act, provided, however, counsel to
Investor may provide such instructions and opinion to the transfer agent
regarding the removal of the restrictive legend.
9. Assignment of the Registration Rights. The rights to have
the Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investors to any permitted transferee of the
Registrable Securities pursuant to the Common Stock Purchase Agreement.
11
10. Amendment of Registration Rights. Any provision 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 the written consent of the Company and Investor. Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon Investor and the Company.
11. Miscellaneous.
(a) Notices required or permitted to be given hereunder shall
be given in the manner contemplated by the Common Stock Purchase Agreement, if
to the Company or to Investor, to their respective addresses contemplated by
this Agreement, or at such other address as each such party furnishes by notice
given in accordance with this Section 10(a).
(b) 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.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of California for contracts to be wholly performed in
such state and without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the jurisdiction of the
federal and state courts of California in connection with any dispute arising
under this Agreement and hereby waives, to the maximum extent permitted by law,
any objection, including any objection based on forum non coveniens, to the
bringing of any such proceeding in such jurisdictions. In the event of any
dispute, the prevailing party shall be entitled to recover its reasonable
attorneys' fees.
(d) If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(e) This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
(f) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
12
(h) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
(i) The Company acknowledges that any failure by the Company
to perform its obligations under Section 3(a) hereof, or any delay in such
performance, could result in loss to Investor, and the Company agrees that, in
addition to any other liability the Company may have by reason of such failure
or delay, the Company shall be liable for all direct damages caused by any such
failure or delay, offset by any Periodic Amount paid to Investor pursuant to
Sections 2(b)(i)-(ii), unless the same is the result of force majeure. Neither
party shall be liable for consequential damages.
(j) This Agreement, together with the Common Stock Purchase
Agreement and the other Transaction Documents, constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement, together with the Common Stock
Purchase Agreement and the other Transaction Documents, supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof. This Agreement may be amended only by an instrument in
writing signed by the party to be charged with enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
COMPANY:
ALTAIR INTERNATIONAL INC.
By:
Name:
Title:
XXXXXXXX LLC
By:
Name:
Title:
14
SCHEDULE 5(b)
OTHER REGISTRABLE SECURITIES
----------------------------
15
