Exhibit 10.48
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made by and among
TTR Technologies, Inc. (the "Company"), and the investors listed on Schedule I
hereto (collectively, the "Investors" and each an "Investor"), each of whom has
executed a signature page hereto.
RECITALS
I. The Investors desire to purchase from the Company and the Company desires
to issue and sell to the Investors Shares of its Common Stock of the
Company (the "Common Stock"), upon the terms set forth in the Company's
Subscription Agreement dated February 18, 2000 (the "Agreement").
II. To induce Investors to purchase Shares, the Company is willing under
certain circumstances to register under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the
"Securities Act"), Common Stock underlying the Common Stock to be
purchased by the Investors.
NOW THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Required Registrations.
i) The Company will include the Registrable Securities in a
registration statement (the "Automatic Registration Statement")
which the Company will prepare and file within 45 days after the
closing of this private placement with the SEC under the Securities
Act of 1933 and use its best efforts to have declared effective by
the SEC within 60 days following the closing of this private
placement so as to permit the public trading of the Registrable
Securities no later than 90 days following the closing of this
private placement.
ii) If the Company fails to have the registration statement which is
ultimately used to register the Registrable Securities, declared
effective by the SEC within 90 days following the Closing Date,
then, the Company shall continue to use its best efforts to cause
the SEC to promptly declare the effectiveness of, the Automatic
Registration Statement so as to permit the public trading of the
Registrable Securities pursuant thereto.
iii) Once the Automatic Registration Statement is declared effective by
the SEC, the Company will maintain the effectiveness of the
Automatic Registration Statement until at least the earlier date to
occur (the "Release Date") of (i) the date that all of the
Registrable Securities have been sold pursuant to the Automatic
Registration Statement and (ii) the date that the holders of the
Registrable Securities receive an opinion of counsel to the Company
that they may sell their Registrable Securities (without limitation
or restriction as to quantity or timing and without registration
under the Act) pursuant to Rule 144(k) of the Act or otherwise. If
the Company fails to keep the Automatic Registration Statement
continuously effective
during such period, then the Company shall, promptly upon the
request of the Investors holding at least 50% of the unsold
Registrable Securities included therein, use its best efforts to
update the Automatic Registration Statement or file a new
registration statement covering the unsold Registrable Securities,
subject to the terms and provisions hereof.
iv) The Registration Expenses shall be paid by the Company with respect
to all registrations effected pursuant to this Section.
2. Restrictions on Transfer. Notwithstanding the registration of any
Registrable Securities, each Investor shall not sell or offer to sell any
Registrable Securities until after the automatic registration has been
declared effective.
3. Registration Procedures. In connection with any registration of
Registrable Securities, the Company shall:
i) prepare and file with the Securities and Exchange Commission a
registration statement on the appropriate form under the Securities
Act, which form shall be available for the sale of such Registrable
Securities in accordance with the intended method or methods of
distribution thereof, and use its commercially reasonable efforts to
cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the
counsel selected by the holders of a majority of the Registrable
Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to
the review and comment of such counsel);
ii) notify each holder of Registrable Securities of the effectiveness of
the registration statement filed hereunder and prepare and file with
the Securities and Exchange Commission such amendments,
post-effective amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary or appropriate to keep such registration statement
effective for the period required for sale of the Registrable
Securities and cause such prospectus as so supplemented to be filed
as required under the Securities Act, and comply with the provisions
of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement or
supplement to the prospectus;
iii) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as
such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
iv) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions where such registration or qualification is required
as any seller reasonably requests and do any and all other' acts and
things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the
Registrable
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Securities owned by such seller (provided that the Company shall not
be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
such jurisdiction);
v) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any
event as a result of which the prospectus included in such
registration statement as then in effect, contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and, at the request of any such seller,
the Company shall prepare a supplement or amendment to such
prospectus so that, thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact required to be stated therein or omit
to state any fact necessary to make the statements therein not
misleading;
vi) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the
Company are then listed or traded, and, if not so listed or traded,
to be listed on the NASD automated quotation system and, if listed
on the NASD automated quotation system, use commercially reasonable
efforts to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD;
vii) cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in
such names as the selling holders or the managing underwriters, if
any, may request at least ten Business Days prior to any sale of
Registrable Securities; provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of
such registration statement;
viii) enter into such customary agreements (including, if there is an
underwriter, underwriting agreements in customary form);
ix) make available for inspection by any sellers of Registered
Securities any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company that is customary, and cause the Company's officers,
directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
x) cooperate, and cause the Company's officers, directors, employees
and independent accountants to cooperate, with the selling holders
of Registrable
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Securities and the managing underwriters, if any, in the sale of the
Registrable Securities and take any actions necessary to promote,
facilitate or effectuate such sale;
xi) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission;
xii) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any common stock included in such
registration statement for sale in any jurisdiction, the Company
shall use its best efforts promptly to obtain the withdrawal of such
order.
4. Registration Expenses.
i) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration
and filing fees (including, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel as may be
required under the rules and regulations of the NASD), fees and
expenses of compliance with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters or selling
holders in connection with blue sky qualifications and determination
of their eligibility for investment under applicable laws), printing
expenses, messenger, telephone and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel
for the Company and all independent certified public accountants
(including the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), underwriters
(excluding underwriters' discounts and commissions) and other
Persons retained by the Company (all such expenses being herein
called "Registration Expenses"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its
internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance if such insurance
coverage is obtained by the Company and the expenses and fees for
listing the securities to be registered on each securities exchange
on which similar securities issued by the Company are then listed or
on the NASD automated quotation system.
ii) Each holder of securities included in any registration hereunder
shall pay the discounts and commissions allocable to the Registrable
Securities of the holder and the Fees and expenses of such holder's
counsel.
5. Registration Penalty
a) In the event the Company fails to have the registration statement
covering the registrable securities declared effective within 90
days following the closing, the Company will pay to the holder an
amount equal to 2% of the amount invested per month until the
registration statement has been declared effective.
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6. Indemnification and Contribution
i) The Company agrees to indemnify each holder of Registrable
Securities which is included in a registration statement pursuant to
Section 1 herein, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused
by any untrue or alleged untrue statement of material fact contained
in any registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information
furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with
a sufficient number of copies of the same. In connection with an
underwritten offering, the Company shall indemnify such
underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
ii) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as
the Company and any underwriter reasonably requests for use in
connection with any such registration statement or prospectus and
shall indemnify the Company, its directors and officers and each
Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of
material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit
so furnished in writing by such holder.
iii) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure
to give prompt notice shall not impair any Person's right to
indemnification hereunder to the extent such failure has not
materially prejudiced the indemnifying party) and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying
party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall
not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party
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a conflict of interest may exist between such indemnified party and
any other of such indemnified parties with respect to such claim.
iv) If the indemnification provided for in this Section 5 is unavailable
to an indemnified party under paragraphs (a) or (b) hereof in
respect to any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or expenses in such proportion
as is appropriate to reflect the relative fault of the Company and
the holder of Registrable Securities in connection with the
statements or omissions that resulted in such losses, claim,
damages, liabilities or expenses. The relative fault of the Company
and the holder of Registrable Securities in connection with the
statements that resulted in such losses, claims, liabilities or
expenses shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material facts or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the holder of the Registrable
Securities and the parties relative intent, knowledge, access to
information and opportunity to correct such statement or omission.
v) Notwithstanding any other provision of this Section, the liability
of any holder of Registrable Securities for indemnification or
contribution under this Section shall be individual to each holder
and shall not exceed an amount equal to the number of shares sold by
such holder of Registrable Securities multiplied by the net amount
per share which he receives in such underwritten offering.
vi) The indemnification and contribution provided for under this
Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities.
7. Definitions.
"Common Stock" means the Company's Common Stock, without par value.
"NASD" means the National Association of Securities Dealers.
"Person" means any individual, corporation, partnership, limited liability
company, trust, estate, association, cooperative, government or
governmental entity (or any branch, subdivision or agency thereof) or any
other entity.
"Registrable Securities" means any Common Stock issued or issuable upon
conversion of the Series A Preferred Stock.
"Registrable Securities" means any of the Warrant Share Registrable
Securities, the Note Share Registrable Securities or the Preferred Share
Registrable Securities. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to a offering registered under the
Securities Act or eligible to be sold to the public through a broker,
dealer or market maker
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in compliance with Rule 144 under the Securities Act (or any such rule
then in force). For purposes of this Agreement, a Person shall be deemed
to be a holder of Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the
exercise of such right), whether or not such acquisition has actually been
effected.
"Securities Act" means the Securities Act of 1933, as amended.
8. Miscellaneous.
i) No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of
Registrable Securities in this Agreement.
ii) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of
the Registrable Securities.
iii) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors and assigns of
the parties hereto whether so expressed or not In addition, whether
or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of purchasers or holders of
Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities. A person is
deemed to be a holder of Registrable Securities whenever such person
is the registered holder of Registrable Securities. Upon the
transfer of any Registrable Securities, the transferring holder of
Registrable Securities shall cause the transferee to execute and
deliver to the Company a counterpart of this Agreement.
iv) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held
to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
v) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement.
vi) Descriptive Heading. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this
Agreement.
vii) Governing Law. The corporate law of New York shall govern all issues
and questions concerning the relative rights of the Company and its
shareholders. All issues and questions concerning the construction,
validity, interpretation and enforcement of this Agreement shall be
governed by, and construed in accordance
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with, the laws of New York, without giving effect to any choice of
law or conflict of law rules or provisions (whether of New York or
any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than New York.
viii) Consent to Jurisdiction: Service of Process. Company and Investor
hereby irrevocably consent to the jurisdiction of the Courts of New
York State and any and all actions and proceedings in connection
with this Agreement, and irrevocably consent, in addition to any
methods of service of process permissible under applicable law, to
service of process by certified mail, return receipt requested to
the address of Company and Investor as set forth herein. Nothing in
this Section shall affect or limit the right of any Investor to
serve legal process in any other manner permitted by law. Company
and Investor agree that in any action or proceeding brought by them
in connection with this Agreement or the transactions contemplated
hereby, exclusive jurisdiction shall be in the courts of the Courts
of New York.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned has executed this Registration Rights
Agreement this ________ day of _________________, 2000.
PARTNERSHIP, CORPORATION or TRUST:
Signature
Print Name of Subscriber Organization
Print Name and Title of Person Signing
Address:
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Number and Street
-------------------------------------------------
City State Zip Code
ACCEPTED AND AGREED to this _____ day of ____________, 2000.
TTR Technologies, Inc.
By:
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Name:
-----------------------------
Title:
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REGISTRATION RIGHTS AGREEMENT SUPPLEMENT
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REGISTRATION RIGHTS AGREEMENT
Add Section 3 Paragraphs m and n to Registration Rights Agreement
xiii) Notwithstanding the forgoing, if at any time or from time to time after
the date of effectiveness of the Automatic Registration Statement, the
Company notifies the Investors in writing of the existence of a Potential
Material Event, the Investors 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 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 to such holders of Registrable Securities during
the periods the Automatic Registration Statement is required to be in
effect other than during a Permitted Suspension Period. The term (I)
"Permitted Suspension Period" means one or more suspension periods during
any consecutive 12-month period which suspension periods, in the
aggregate, do not exceed fifty (50) days, provide, however, that no one
such suspension period shall either (I) be for more than twenty (20) days
or (ii) begin less than ten (10) business days after the last day of the
preceding suspension (whether or not such last day was during or after a
Permitted Suspension Period) and (ii) 'Potential Material Event 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
determinations in good faith by the Board Directors of the Company that
disclosure of such information in the 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 registration statement
would be detrimental to the business and aggairs 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.
xiv) Notwithstanding the effectiveness of the Automatic Registration Statement
the undersigned agrees not to sell any shares purchased in this private
placement for a period of 90 days following the closing.
Initial ____________
