REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement
(this "Agreement") is made this 21st day of September, 2007, by NANOVIRICIDES,
INC., a publicly-owned Nevada corporation (the "Company") and each of the
Purchasers set forth on the signature page hereto (individually a "Purchaser"
and collectively, the "Purchasers").
A. In
connection with the Subscription Agreement by and among the parties hereto
of
even date herewith (the “Subscription Agreement”), the Company has agreed, upon
the terms and subject to the conditions contained therein, to issue and sell
to
the Purchasers (i) 1,500,000 shares (the "Shares") of the Company’s common
stock, par value $0.001 per share (the “Common Stock”) and (ii) warrants (the
“Warrants”) to acquire an aggregate of 450,000 shares of Common Stock, upon the
terms and conditions and subject to the limitations and conditions set forth
in
the Warrants; and
B. To
induce the Purchasers to execute and deliver the Subscription Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the “1933 Act”), and
applicable state securities laws;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each of the
Purchasers hereby agree as follows:
1. Certain
Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Commission"
shall mean
the Securities and Exchange Commission or any other federal agency at the time
administering the Securities Act.
(b) "Common
Stock" shall
mean the common stock, no par value, of the Company.
(c) "Form
S-1. Form SB-1.
Form S-2. Form SB-2 and Form S-3" shall mean Form S-1, Form SB-1, Form S-2,
Form
SB-2 or Form S-3, respectively, promulgated by the Commission or any
substantially similar or successor form then in effect.
(d) The
terms "Register,"
"Registered" and "Registration" refer to a registration effected by preparing
and filing a Registration Statement in compliance with the Securities Act,
and
the declaration or ordering of the effectiveness of such Registration
Statement.
(e) "Registrable
Securities"
shall mean the Shares and the shares of Common Stock underlying the exercise
of
the Warrants until such time as such shares become eligible for sale under
subparagraph (k) of Rule 144 or any successor thereto.
(f) "Registration
Expenses"
shall mean all expenses incurred by the Company in complying with Section 2,
including, without limitation, all federal and state registration, qualification
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits incident
to or required by any such Registration and the reasonable fees and
disbursements of counsel for the Purchasers, as selling
shareholders.
(g) "Registration
Statement"
shall mean Form S-1, Form SB-1, Form S-2, Form SB-2 or Form S-3, whichever
is
applicable.
(h) "Restriction
Termination
Date" shall mean, with respect to any Registrable Securities, the earliest
of
(i) the date that such Registrable Securities shall have been Registered and
sold or otherwise disposed of in accordance with the intended method of
distribution by the seller or sellers thereof set forth in the Registration
Statement covering such securities or transferred in compliance with Rule 144,
and (ii) the date that an opinion of counsel to the Company containing
reasonable assumptions (which opinion shall be subject to the reasonable
approval of counsel to any affected Purchaser) shall have been rendered to
the
effect that any restrictive legend placed upon the Registrable Securities under
the Securities Act can be properly removed and such legend shall have been
removed.
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(i)
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"Rule
144" shall mean Rule 144 promulgated by the Commission pursuant
to the Securities Act and any successor rules
thereto.
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(j)
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"Purchasers"
shall mean, collectively, the Purchasers, their assignees and transferees,
and individually, a Purchaser and any transferee or assignee of such
Purchaser.
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(k)
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"Securities
Act" shall mean the Securities Act of 1933, as
amended.
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(l)
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"Selling
Expenses" shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities pursuant to this
Agreement.
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(m)
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“Shares"
shall mean the Common Stock issued to the Purchasers pursuant to
the
Subscription Agreement and the various Warrant
agreements.
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(n)
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“Transaction
Documents” shall mean this Agreement, the Subscription Agreement and the
Warrant Agreement to which the Company and the Purchasers are
parties.
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Capitalized
terms used but not defined
herein shall have the meanings ascribed to such terms in the Subscription
Agreement and Warrant Agreement.
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2. Registration
Rights.
2.1 Required
Registration.
(a) The
Company shall prepare, and, on or prior to thirty (90) days from the date of
Closing (as defined in the Subscription Agreement) (the “Filing Date”), file
with the Commission a Registration Statement on such form of Registration
Statement as is then available to effect a registration of the Registrable
Securities, subject to the consent of the Purchasers, which consent will not
be
unreasonably withheld) covering the resale of the Registrable Securities issued
or issuable pursuant to the Securities Purchase Agreement, which Registration
Statement, to the extent allowable under the Securities Act and the rules and
regulations promulgated thereunder.
(b) Notwithstanding
the foregoing, the Company may include in each such Registration requested
pursuant to this Section 2.1, the 1,305,000 shares of Common Stock offered
for
sale by the Company’s warrantholders in or about April 2007, which the Company
is obligated to register.
(c) The
Company shall use its best efforts to obtain effectiveness of the Registration
Statement on or prior to one hundred and eighty (180) days the (“Effectiveness
Date”) from the date of Closing (as defined in the Subscription Agreement) and
to keep such Registration Statement continuously effective under the Securities
Act until such date as is the earlier of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold or (y) the
date
on which the Registrable Securities may be sold without any restriction pursuant
to Rule 144(k) as determined by the counsel to the Company pursuant to a written
opinion letter, addressed to the Company’s transfer agent to such effect (the
"Effectiveness Period"). In the event that the Company is unable to
register for resale all of the Registrable Securities on the Registration
Statement due to limits imposed by the SEC, the Company will file a Registration
Statement under the Securities Act with the SEC covering the resale by the
Holders of such lesser amount of the Registrable Securities as the Company
is
able to register and use its best efforts to have such Registration Statement
become effective as promptly as possible and, when permitted to do so by the
SEC, to file subsequent registration statement(s) under the Securities Act
with
the SEC covering the resale of any Registrable Securities that were omitted
from
previous registration statement(s) and use its best efforts to have such
registration declared effective as promptly as possible.
(d) The
Company agrees that the Purchasers will suffer damages if a Registration
Statement is not filed on or prior to the Filing Date or any additional Filing
Date, as applicable, and, in each case, not declared effective by the SEC on
or
prior to the applicable Effectiveness Date and maintained in the manner
contemplated herein during the applicable Effectiveness Period or if certain
other events occur. The Company and the Purchasers further agree that
it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, if (A) a Registration Statement is not filed
on or prior to the Filing Date, any additional Filing Date, or (B) a
Registration Statement is not declared effective by the SEC on or prior to
the
applicable Effectiveness Date, or (C) any Registration Statement is filed with
and declared effective by the Commission but thereafter ceases to be effective
as to all Registrable Securities at any time prior to the expiration of the
Effectiveness Period, without being succeeded immediately by a subsequent
Registration Statement filed with and declared effective by the Commission
(any
such failure or breach being referred to as an “Event,” and for purposes
of clauses (A) and (B) the date on which such Event occurs, or for purposes
of
clause (C) after more than fifteen (15) Business Days, being referred to as
“Event Date”), the Company shall issue as liquidated damages to each
Purchaser an additional 75,000 Warrants to purchase the Company’s Common Stock,
at an exercise price of $0.15 per share, for each thirty (30) day period the
Registration Statement is not declared effective after the Effectiveness Date,
and shall ensure that the Common Stock underlying such warrants is also covered
by the Registration Statement. Liquidated damages payable by the
Company pursuant to this Section shall be payable on the first (1st) Business
Day of each thirty (30) day period following the Event Date.
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2.2 Piggyback
Registration
(a) Each
time that the
Company proposes to Register a public offering solely of its Common Stock,
other
than pursuant to a Registration Statement on Form S-4 or Form S-8 or similar
or
successor forms (collectively, "Excluded Forms"), the Company shall promptly
give written notice of such proposed Registration to the Purchasers, which
shall
offer such holders the right to request inclusion of any Registrable Securities
not heretofore registered in the proposed Registration.
(b) Each
Purchaser shall
have ten (10) days or such longer period as shall be set forth in the notice
from the receipt of such notice to deliver to the Company a written request
specifying the number of shares of Registrable Securities such Purchaser intends
to sell and the holder's intended plan of disposition.
(c) Upon
receipt of a
written request pursuant to Section 2.2 (b), the Company shall promptly use
its
best efforts to cause all such Registrable Securities to be Registered, to
the
extent required to permit sale or disposition as set forth in the written
request.
2.3 Preparation
and
Filing. If and whenever the Company is under an obligation pursuant
to the provisions of this Section 2 to use its best efforts to effect the
Registration of any Registrable Securities, the Company shall, as expeditiously
as practicable:
(a) prepare
and file with
the Commission a Registration Statement with respect to such Registrable
Securities and use its best efforts to cause such Registration Statement to
become and remain effective, keeping each Purchaser advised as to the
initiation, progress and completion of the Registration;
(b) prepare
and file with
the Commission such amendments and supplements to such Registration
Statements-and the prospectus used in connection therewith as may be necessary
to keep such Registration Statement effective for nine months and to comply
with
the provisions of the Securities Act with respect to the sale or other
disposition of all Registrable Securities covered by such registration
statement;
(c) furnish
to each
Purchaser such number of copies of any summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as
such Purchaser may reasonably request in order to facilitate the public sale
or
other disposition of such Registrable Securities;
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(d) use
its best efforts to
register or qualify the Registrable Securities covered by such registration
statement under the securities or blue sky laws of such jurisdictions as each
Purchaser shall reasonably request and do any and all other acts or things
which
may be necessary or advisable to enable such holder to consummate the public
sale or other disposition in such jurisdictions of such Registrable Securities;
provided, however, that the Company shall not be required to consent to general
service of process, qualify to do business as a foreign corporation where it
would not be otherwise required to qualify or submit to liability for state
or
local taxes where it is not liable for such taxes; and
(e) at
any time when a
prospectus covered by such Registration Statement is required to be delivered
under the Securities Act, notify each Purchaser of the happening of any event
as
a result of which the prospectus included in such Registration, 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 not misleading in the light of the circumstances then existing and,
at
the request of such seller, prepare, file and furnish to such seller 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 shares, 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 statement therein not misleading in the light
of the circumstances then existing.
2.4 Expenses. The
Company shall pay all Registration Expenses incurred by the Company in complying
with this Section 2; provided however that all underwriting discounts and
selling commissions applicable to the Registrable Securities covered by
registrations effected pursuant to section 2.2 hereof shall be borne by the
seller or sellers thereof, in proportion to the number of Registrable Securities
sold by such seller or sellers.
2.5 Indemnification.
(a) Company's
Indemnification of Purchasers. The Company shall indemnify each
Purchaser, each of its officers, directors and constituent partners, and each
person controlling such Purchaser, and each underwriter thereof, if any, and
each of its officers, directors, constituent partners, and each person who
controls such underwriter, against all claims, losses, damages or liabilities
(or actions in respect thereof) suffered or incurred by any of them, to the
extent such claims, losses, damages or liabilities arise out of or are based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus or any related Registration Statement incident
to
any such Registration, or any omission (or alleged omission) to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company and
relating to actions or inaction required of the Company in connection with
any
such Registration; and the Company will reimburse each such Purchaser, each
such
underwriter, each of their officers, directors and constituent partners and
each
person who controls any such Purchaser or underwriter, for any legal and any
other expenses as reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided however,
that the indemnity contained in this Section 2.5(a) shall not apply to amounts
paid in settlement of any such claim, loss, damage, liability or action if
settlement is effected without the consent of the Company (which consent shall
not unreasonably be withheld); and provided however, that the Company will
not
be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based upon any untrue statement or
omission based upon written information furnished to the Company by such
Purchaser, underwriter, controlling - person or other indemnified person and
stated to be for use in connection with the offering of securities of the
Company.
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(b) Purchaser's
Indemnification of Company. Each Purchaser shall indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's Registrable Securities covered by a Registration Statement, each
person who controls such underwriter within the meaning of the Securities Act,
and each other Purchaser, each of its officers, directors and constituent
partners and each person controlling such other Purchaser, against all claims,
losses, damages and liabilities (or actions in respect thereof) suffered or
incurred by any of them and arising out of or based upon any untrue statement
(or alleged untrue statement) of a material fact contained in such Registration
Statement or related prospectus, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, or any violation by such Purchaser of any
rule or regulation promulgated under the Securities Act applicable to such
Purchaser and relating to actions or inaction required of such Purchaser in
connection with the Registration of the Registrable Securities pursuant to
such
Registration Statement; and will reimburse the Company, such other Purchasers,
such directors, officers, partners, persons, underwriters ' and controlling
persons for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; such indemnification and reimbursement shall be to the extent, but
only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement or
prospectus in reliance upon and in conformity with written information furnished
to the Company by such Purchaser and stated to be specifically for use in
connection with the offering of Registrable Securities. Anything in the
foregoing to the contrary notwithstanding, in no event shall the aggregate
obligations of a Purchaser under this Section 2.5(b) to all parties that may
be
entitled to indemnification hereunder exceed the amount of proceeds received
by
such Purchaser in connection with such offering of Registrable
Securities.
(c) Indemnification
Procedure. Promptly after receipt by an indemnified party under this
Section 2.5 of notice of the commencement of any action which may give rise
to a
claim for indemnification hereunder, such indemnified party will, if a claim
in
respect thereof is to be made against an indemnifying party under this Section
2.5, notify the indemnifying party in writing of the commencement thereof and
generally summarize such action. The indemnifying party shall have the right
to
participate in and to assume the defense of such claim, and shall be entitled
to
select counsel for the defense of such claim with the approval of any parties
entitled to indemnification, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, the parties entitled to indemnification shall
have the, right to employ, separate counsel (reasonably satisfactory to the
indemnifying party) to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified parties
unless the named parties to such action or proceedings include both the
indemnifying party and the indemnified parties and the indemnifying party or
such indemnified parties shall have been advised by counsel that there are
one
or more legal defenses available to the indemnified parties which are different
from or additional to those available to the indemnifying party (in which case,
if the indemnified parties notify the indemnifying party in writing that they
elect to employ separate counsel at the reasonable expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense
of
such action or proceeding on behalf of the indemnified parties, it being
understood, however, that the indemnifying party shall not, in connection with
any such action or proceeding or separate or substantially similar or related
action or proceeding in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of
more than one separate counsel at any time for all indemnified parties, which
counsel shall be designated in writing by the Purchasers of a majority of the
Registrable Securities).
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(d) Contribution. If
the
indemnification provided for in this Section 2.5 from an indemnifying party
is
unavailable to an indemnified party hereunder in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then the 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 indemnifying party and indemnified party
in
connection with the statements or omissions which result in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party and the parties' relative intent,
knowledge, access to information supplied by such indemnifying party or
indemnified party and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed
to
include any legal or other fees or expenses reasonably incurred by such party
in
connection with investigating or defending any action, suit, proceeding or
claim.
3. Covenants
of the Company. The Company agrees to:
(a) Notify
the Purchaser of
the issuance by the Commission of any stop order suspending the effectiveness
of
such Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible time.
(b) If
the Common Stock is
then listed on a national securities exchange, use its best efforts to cause
the
Registrable Securities to be listed on such exchange.
(c) Take
all other
reasonable actions necessary to expedite and facilitate disposition of the
Registrable Securities by the holders thereof pursuant to the Registration
Statement.
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(d) With
a view to making
available to the holders of Registrable Securities the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the
Commission that may at any time permit the Purchasers to sell securities of
the
Company to the public without registration, the Company, after it has become
obligated to file periodic or other reports pursuant to Section 13 of the 1934
Act agrees to:
(i) make
and keep public
information available, as those terms are understood and defined in Rule 144,
at
all times after 90 days after the effective date of the first Registration
Statement filed by the Company for the offering of its securities to the general
public;
(ii) file
with the
Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Securities and Exchange Act of 1934
(the "1934 Act"); and
(iii) furnish
to the
Purchasers, so long as such Purchaser owns any Shares, forthwith upon written
request: (a) a written statement by the Company that it has complied with the
reporting requirements of Rule 144 (at any time after 90 days after the
effective date of the first registration statement filed by the Company), the
Securities Act and the 1934 Act (at any time after it has become subject to
such
reporting requirements), (b) 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 (c) such other information as may be reasonably requested and as
is
publicly available in availing the Purchasers of any rule or regulation of
the
Commission which permits the selling of any such securities without
registration.
(e) Prior
to the filing of
the Registration Statement or any amendment thereto (whether pre-effective
or
post-effective), and prior to the filing of any prospectus or prospectus
supplement related thereto, the Company will provide each Purchaser with copies
of all pages thereto, if any, which reference such Selling.
4. Independent
Nature of Purchasers’ Obligations and Rights.The obligations of each
Purchaser hereunder is several and not joint with the obligations of any other
Purchaser hereunder, and no Purchaser shall be responsible in any way for the
performance of the obligations of any other Purchaser hereunder. The
decision of each Purchaser to purchase the Registrable Securities pursuant
to
the Transaction Documents has been made independently of any other
Purchaser. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert with
respect to such obligations or the transactions contemplated by this
Agreement. Each Purchaser acknowledges that no other Purchaser has
acted as agent for such Purchaser in connection with making its investment
hereunder and that no Purchaser will be acting as agent of such Purchaser in
connection with monitoring its investment in the Securities or enforcing its
rights under the Transaction Documents. Each Purchaser shall be
entitled to protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any
other Purchaser to be joined as an additional party in any proceeding for such
purpose.
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5. Miscellaneous.
(a) Notices
required or
permitted to be given hereunder shall be in writing and shall be deemed to
be
sufficiently given when personally delivered or sent by registered mail, return
receipt requested, addressed (i) if to the Company, at NanoViricides, Inc.,
000
Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxxxxxx 00000 and (ii) if to a
Purchaser, at the address set forth in his Warrant Agreement, or at such other
address as each such party furnishes by notice given in accordance with this
Section 4 (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, will not operate as a waiver
thereof. No waiver will be effective unless and until it is in
writing and signed by the party giving the waiver.
(c) THIS
AGREEMENT SHALL BE
ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEVADA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS. THE
PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING
UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR
THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. BOTH PARTIES IRREVOCABLY WAIVE
THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH SUIT OR
PROCEEDING. BOTH PARTIES FURTHER AGREE THAT SERVICE OF PROCESS UPON A
PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE
SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES
AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
(d) In
the event that any
provision of this Agreement is invalid or unenforceable under any applicable
statute or rule of law, then such provision shall be deemed inoperative to
the
extent that it may conflict therewith and shall be deemed modified to conform
with such statute or rule of law. Any provision hereof which may
prove invalid or unenforceable under any law shall not affect the validity
or
enforceability of any other provision hereof.
(e) This
Agreement, the
Warrants and the Subscription Agreement (including all schedules and exhibits
thereto) constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred
to
herein and therein. This Agreement and the Securities Purchase
Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
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(f) Subject
to the
requirements of Section 4 hereof, this Agreement shall be binding upon and
inure
to the benefit of the parties and their successors and assigns.
(g) The
headings in this
Agreement are for convenience of reference only and shall not form part of,
or
affect the interpretation of, this Agreement.
(h) This
Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of
this
Agreement bearing the signature of the party so delivering this
Agreement.
(i) Each
party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order
to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(j) Except
as otherwise
provided herein, all consents and other determinations to be made by the
Investors pursuant to this Agreement shall be made by Investors holding a
majority of the Registrable Securities, determined as if the all of the Notes
then outstanding have been converted into for Registrable
Securities.
(k) The
Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm
to
each Investor by vitiating the intent and purpose of the transactions
contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for breach of its obligations under this Agreement will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company of any of the provisions under this Agreement, that each Investor shall
be entitled, in addition to all other available remedies in law or in equity,
and in addition to the penalties assessable herein, to an injunction
or injunctions restraining, preventing or curing any breach of this Agreement
and to enforce specifically the terms and provisions hereof, without the
necessity of showing economic loss and without any bond or other security being
required.
(l) The
language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied
against any party.
(The
rest of this page left intentionally blank.)
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IN
WITNESS WHEREOF,
the Company has executed this Agreement for the benefit of the Purchasers by
its
duly authorized officer as of the date first above written.
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By:
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/s/ Xxxxxx Xxxxxxx | |
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Xxxxxx
Xxxxxxx,
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Chief
Executive Officer
|
||
AGREED
AND ACCEPTED THIS
21st
day
of September, 2007
DKR
SATURN EVENT DRIVEN
HOLDING
FUND LTD.
|
By:
|
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
|
||
|
Title:
Authorized Signatory
|
11
