REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of July 18, 2008, by and among Southern Sauce Company,
Inc., a Florida corporation (the “Company”),
and
the purchaser listed on Schedule I hereto (the “Purchaser”).
This
Agreement is being entered into pursuant to the Securities Purchase Agreement
dated as of the date hereof among the Company and the Purchaser (the
“Purchase
Agreement”).
The
Company and the Purchaser hereby agree as follows:
1. Definitions.
Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
“Additional
Filing Date”
shall
mean the thirtieth (30th)
day
following the date on which a Demand Notice is received by the Company;
provided
that if
any Additional Filing Date falls on a Saturday, Sunday or any other day which
shall be a legal holiday or a day on which the Commission is authorized by
law
or other government actions to close, the Additional Filing Date shall be the
following Business Day.
“Advice”
shall
have meaning set forth in Section 3(m).
“Affiliate”
means,
with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such Person. For
the
purposes of this definition, “control,” when used with respect to any Person,
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms of
“affiliated,”
“controlling”
and
“controlled”
have
meanings correlative to the foregoing.
“Board”
shall
have meaning set forth in Section 3(n).
“Business
Day”
means
any day except Saturday, Sunday and any day which shall be a legal holiday
or a
day on which banking institutions in the state of New York generally are
authorized or required by law or other government actions to close.
“Closing
Date”
means
the date of the Closing, as defined in the Purchase Agreement.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the Company’s Common Stock, par value $0.001 per share.
“Conversion
Shares”
means
the shares of the Company’s Common Stock issuable upon conversion of the
Company’s Preferred Stock.
“Demand
Notice”
shall
have the meaning set forth in Section 2A.
“Effectiveness
Date”
means,
with respect to any Registration Statement the earlier of (A) the one hundred
twentieth (120th)
day
following the Closing Date or any Additional Filing Dates, as applicable, or
(B)
in the event the Registration Statement receives a “full review” by the
Commission, the one hundred fiftieth (150th)
day
following the Closing Date or any Additional Filing Dates, as applicable, or
(C)
the date which is within three (3) Business Days after the date on which the
Commission informs the Company that the (i) the Commission will not review
a
Registration Statement or (ii) the Company may request the acceleration of
the
effectiveness of a Registration Statement and the Company makes such request;
provided,
that,
if the Effectiveness Date falls on a Saturday, Sunday or any other day which
shall be a legal holiday or a day on which the Commission is authorized or
required by law or other government actions to close, the Effectiveness Date
shall be the following Business Day.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2.
“Event”
shall
have the meaning set forth in Section 8(e).
“Event
Date”
shall
have the meaning set forth in Section 8(e).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Filing
Date”
means,
the forty-fifth (45th)
day
following the Closing Date; provided,
that,
if the Filing Date falls on a Saturday, Sunday or any other day which shall
be a
legal holiday or a day on which the Commission is authorized or required by
law
or other government actions to close, the Filing Date shall be the following
Business Day.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Initial
Vision Shares”
means
the Initial Registrable Securities as defined in the Vision Registration Rights
Agreement, subject to the terms and conditions set forth in Sections 2(a) of
such agreement.
“Initiating
Holders”
shall
have the meaning set forth in Section 2A.
“Losses”
shall
have the meaning set forth in Section 5(a).
“Person”
means
an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or political subdivision thereof) or
other entity of any kind.
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“Preferred
Stock”
means
shares of the Company’s Series A Convertible Preferred Stock issued to the
Purchaser pursuant to the Purchase Agreement.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such
Prospectus.
“Registrable
Securities”
means
(i) the shares of Common Stock issuable upon conversion of the Preferred Stock
(“Conversion Shares”), (ii) the shares of Common Stock issuable upon exercise of
the Warrants (“Warrant Shares”), and (iii) the shares of Common Stock that are
acquired by the Purchaser either (x) upon their release from escrow on the
terms
and subject to the conditions set forth in the Securities Escrow Agreement
(the
“Escrow Shares”) or (y) pursuant to Section 3.25 of the Purchase Agreement, in
the event such shares are actually issued (the “Principal Stockholder
Shares”).
“Registration
Statement”
means
the registration statements and any additional registration statements
contemplated by Section 2, including (in each case) the Prospectus, amendments
and supplements to such registration statement or Prospectus, including pre-
and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference in such registration statement.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
158”
means
Rule 158 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended.
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“Securities
Escrow Agreement”
means
the Securities Escrow Agreement dated as of July 18, 2008 by and among the
Company, Blue Ridge Investments, LLC and its affiliates, Li Shaoqing and Loeb
& Loeb LLP.
“Shell
Registration Rights Agreement”
means
the Registration Rights Agreement dated as of June 10, 2008, by and among the
Company and the holders of securities listed on Schedule II.
“Shell
Shares”
means
the securities of the Company listed on Schedule II, with such holders who
have
entered into the Shell Registration Rights Agreement.
“Special
Counsel”
means
Cadwalader, Xxxxxxxxxx & Xxxx LLP, for which the Holders will be reimbursed
by the Company pursuant to Section 4.
“Units”
shall
have the meaning ascribed to such term in the Purchase Agreement. “Vision
Registration Rights Agreement”
means
that Registration Rights Agreement dated as of June 10, 2008, by and between
the
Company and Vision.
“Vision
Shares”
means
the Registrable Securities as defined in the Vision Registration Rights
Agreement.
“Warrant
Shares”
means
the shares of Common Stock issuable upon the exercise of a Warrant at an
exercise price of $3.52.
“Warrants”
means
the Series A Warrants to purchase shares of Common Stock issued to the Purchaser
pursuant to the Purchase Agreement.
2. Resale
Registrations.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a “resale” Registration Statement providing for the resale of fifty percent
(50%) of the Conversion Shares, one hundred percent (100%) of the Escrow Shares,
fifty percent (50%) of the Warrant Shares, one hundred percent (100%) of the
Initial Vision Shares (subject to the terms and conditions of Section 2(a)
of
the Vision Registration Rights Agreement), and one hundred percent (100%) of
the
Shell Shares (collectively, the “Initial Registrable Securities”), for an
offering to be made on a continuous basis pursuant to Rule 415. Such
Registration Statement shall be on Form S-1. Such Registration Statement shall
cover to the extent allowable under the Securities Act and the rules promulgated
thereunder (including Rules 415 and 416), such indeterminate number of
additional shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Conversion Shares. The Company
shall
(i) not permit any securities other than the Initial Registrable Securities
to
be included in such Registration Statement and (ii) use its best efforts to
cause such Registration Statement to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any event prior
to
the applicable Effectiveness Date, 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 Initial Registrable Securities covered by
such
Registration Statement have been sold or (y) the date on which the Initial
Registrable Securities may be sold without any restriction pursuant to Rule
144
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”). The Company shall request that the effective time of
any such Registration Statement is 5:00 p.m. Eastern Time on the effective
date.
4
(b) In
the
event that the Company is unable to register for resale under Rule 415 of
Regulation C under the Securities Act all of the Initial Registrable Securities
on the Registration Statement that it has agreed to file pursuant to the first
sentence of Section 2(a) due to limits imposed by the Commission’s
interpretation of Rule 415 of Regulation C under the Securities Act, then the
Company shall be obligated to include in such Initial Registration Statement
(which may be a subsequent Registration Statement if the Company needs to
withdraw the Initial Registration Statement and refile a new Registration
Statement in order to rely on Rule 415) only such limited portion of the
Registrable Securities, Vision Shares and Shell Shares as the Commission shall
permit. Any exclusion of Registrable Securities, Vision Shares or Shell
Shares shall be made pro rata among the Holders in proportion to the number
of
Registrable Securities, Vision Shares or Shell Shares held by such persons;
provided, however, that the number of Registrable Securities, Vision
Shares or Shell Shares to be omitted from such initial Registration
Statement or any subsequent registration statement shall be determined in the
following order: (i) first, on a pro rata basis, the Escrow Shares and the
Escrow Shares as defined under the Vision Registration Rights Agreement; (ii)
second, on a pro rata basis, the Warrant Shares and the Warrant Shares as
defined under the Vision Registration Rights Agreement; (iii) third, on a pro
rata basis for a period of twelve months from the Closing Date at which point
any such shares shall be registered last, the Conversion
Shares and
the
Conversion Shares as defined under the Vision Registration Rights
Agreement;
and
(iv) fourth, the Shell Shares. In furtherance of the Company’s obligations set
forth in the preceding sentence, the parties hereby agree that in the event
that
any Holder shall deliver to the Company a written notice at any time after
the
later of (x) the date which is six months after the Effectiveness Date of the
latest Registration Statement that was filed pursuant to Section 2(a) or 2(b)
hereof, as applicable, or (y) the date on which all Initial Registrable
Securities registered on the all of the prior Registration Statements filed
pursuant to Section 2(a) and 2(b) hereof are sold, that the Company shall file,
within 30 days following the date of receipt of such written notice, an
additional Registration Statement registering any Initial Registrable Securities
that were omitted from the initial Registration Statement.
(c) Notwithstanding
anything to the contrary in this Section 2, nothing in this Agreement shall
be
construed to restrict or supercede the rights and obligations set forth in
the
Vision Registration Rights Agreement as pertains to the Vision
Shares.
2A. Demand
Registrations.
(a) At
any
time following the date on which all Initial Registrable Securities have been
registered for resale pursuant to Section 2 hereof (the “Permitted Request
Date”), (i) a Holder or Holders owning 50% or more in interest (the “Initiating
Holders”) of the Registrable Securities (other than the Initial Registrable
Securities and subject to the rights of the holders of the Shell Shares as
set
forth in the Shell Registration Rights Agreement and the Vision Shares as set
forth in the Vision Registration Rights Agreement)(the “Remaining Registrable
Securities”) may request that the Company file a Registration Statement
providing for the resale of all Remaining Registrable Securities then held
by
the Initiating Holders by giving written notice (a “Demand Notice”) of such
demand to the Company. The Demand Notice shall describe the number of Remaining
Registrable Securities intended to be disposed of and the intended method of
disposition. The Company shall then prepare and file with the Commission on
or
prior to the Additional Filing Date, a “resale” Registration Statement providing
for the resale of all Remaining Registrable Securities included in the Demand
Notice for an offering to be made on a continuous basis pursuant to Rule 415.
Any such Registration Statements shall be on Form S-1. Each such Registration
Statement shall cover to the extent allowable under the Securities Act and
the
rules promulgated thereunder (including Rules 415 and 416), such indeterminate
number of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Securities.
The Company shall (i) not permit any securities other than the Remaining
Registrable Securities to be included in any such Registration Statement and
(ii) use its reasonable best efforts to cause any such Registration Statement
to
be declared effective under the Securities Act as promptly as possible after
the
filing thereof, but in any event prior to the applicable Effectiveness Date,
and
to keep any 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 Remaining Registrable Securities may be sold without
any restriction pursuant to Rule 144 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”). The Company shall request that the
effective time of any such Registration Statement is 5:00 p.m. Eastern Time
on
the effective date.
5
(b) In
the
event that the Company is unable to register for resale under Rule 415 of
Regulation C under the Securities Act all of the Remaining Registrable
Securities on any of the Registration Statements that it has agreed to file
pursuant to the first sentence of Section 2A(a) due to limits imposed by the
Commission’s interpretation of Rule 415 of Regulation C under the Securities
Act, the Company will file a Registration Statement under the Securities Act
with the Commission covering the resale by the Purchaser of such lesser amount
of the Remaining Registrable Securities as the Company is able to register
pursuant to the Commission’s interpretation of Rule 415 of Regulation C under
the Securities Act and use its reasonable best efforts to have such Registration
Statement become effective as promptly as possible, and, when permitted to
do so
by the Commission, to file subsequent registration statement(s) under the
Securities Act with the Commission covering the resale any Remaining Registrable
Securities that were omitted from its prior Registration Statements filed with
the Commission pursuant to this Section 2A(b) and use its reasonable best
efforts to have such registration declared effective as promptly as possible.
In
furtherance of the Company’s obligations set forth in the preceding sentence,
the parties hereby agree that in the event that any Holder shall deliver to
the
Company a written notice at any time after the later of (x) the date which
is
six months after the Effectiveness Date of the latest Registration Statement
filed pursuant to Section 2A(a) or 2A(b) hereof, as applicable, or (y) the
date
on which all Remaining Registrable Securities registered on all of the prior
Registration Statements filed pursuant to Section 2A(a) and 2A(b) hereof are
sold, that the Company shall file, within 30 days following the date of receipt
of such written notice, an additional Registration Statement registering any
Remaining Registrable Securities that were the subject of the applicable Demand
Notice that were omitted from such Registration Statement.
6
3. Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Prepare
and file with the Commission, on or prior to each of the Filing Date and each
Additional Filing Date, a Registration Statement on Form S-1 or another
appropriate form in accordance herewith and the Securities Act and the rules
promulgated thereunder in accordance with the plan of distribution as set forth
on Exhibit
A
hereto
and in accordance with applicable law, and cause such Registration Statement
to
become effective and remain effective as provided herein; provided,
however,
that
not less than five (5) Business Days prior to the filing of such Registration
Statement or any related Prospectus or any amendment or supplement thereto,
the
Company shall (i) furnish to the Holders and any Special Counsel, copies of
all
such documents proposed to be filed, which documents will be subject to the
review of such Holders and such Special Counsel, and (ii) cause its officers
and
directors, counsel and independent certified public accountants to respond
to
such inquiries as shall be necessary, in the reasonable opinion of Special
Counsel, to conduct a reasonable review of such documents. The Company shall
not
file any Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable
Securities or any Special Counsel shall reasonably object in writing within
three (3) Business Days of their receipt thereof.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective as to the applicable Registrable
Securities for the applicable Effectiveness Period and prepare and file with
the
Commission such additional Registration Statements as necessary in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause any related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant
to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond as promptly as possible, but in no event later
than ten (10) Business Days, to any comments received from the Commission with
respect to any such Registration Statement or any amendment thereto and as
promptly as possible provide the Holders true and complete copies of all
correspondence from and to the Commission relating to any such Registration
Statement; (iv) file the final prospectus pursuant to Rule 424 of the Securities
Act no later than 9:00 a.m. Eastern Time on the Business Day following the
date
any such Registration Statement is declared effective by the Commission; and
(v)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by any such Registration Statement during the Effectiveness Period
in
accordance with the intended methods of disposition by the Holders thereof
set
forth in such Registration Statement as so amended or in such Prospectus as
so
supplemented.
(c) Notify
the Holders of Registrable Securities and any Special Counsel as promptly as
possible (and, in the case of (i)(A) below, not less than three (3) Business
Days prior to such filing, and in the case of (iii) below, on the same day
of
receipt by the Company of such notice from the Commission) 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 any Registration Statement is filed; (B) when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing on such
Registration Statement and (C) with respect to any Registration Statement or
any
post-effective amendment, when the same has become effective; (ii) of any
request by the Commission or any other Federal or state governmental authority
for amendments or supplements to any Registration Statement or Prospectus or
for
additional information; (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of any Registration Statement covering any
or
all of the Registrable Securities or the initiation or threatening of any
Proceedings for that purpose; (iv) if at any time any of the representations
and
warranties of the Company contained in any 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 makes any statement made
in any 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 such Registration Statement, Prospectus or other
documents so that, in the case of any 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 the light of the circumstances under which
they
were made, not misleading.
7
(d) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of,
as promptly as possible, (i) any order suspending the effectiveness of any
such
Registration Statement or (ii) any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction.
(e) If
requested by the Holders of a majority in interest of the Registrable
Securities, (i) promptly incorporate in a Prospectus supplement or amend any
Registration Statement such information as the Company reasonably agrees should
be included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(f) If
requested by any Holder, furnish to such Holder and any Special Counsel, without
charge, at least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all exhibits
to the extent requested by such Person (including those previously furnished
or
incorporated by reference) promptly after the filing of such documents with
the
Commission.
(g) Promptly
deliver to each Holder and any Special Counsel, without charge, as many copies
of the Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request; and
subject to the provisions of Sections 3(m) and 3(n), the Company hereby consents
to the use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
8
(h) Prior
to
any public offering of Registrable Securities, use its best efforts to register
or qualify or cooperate with the selling Holders and any Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things necessary or advisable to enable
the
disposition in such jurisdictions of the Registrable Securities covered by
a
Registration Statement; provided,
however,
that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it
is
not then so subject or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
(i) Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to a
Registration Statement, which certificates, to the extent permitted by the
Purchase Agreement and applicable federal and state securities laws, shall
be
free of all restrictive legends, and to enable such Registrable Securities
to be
in such denominations and registered in such names as any Holder may request
in
connection with any sale of Registrable Securities.
(j) Upon
the
occurrence of any event contemplated by Section 3(c)(vi), as promptly as
possible, prepare a supplement or amendment, including a post-effective
amendment, to a Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by reference,
and file any other required document so that, as thereafter delivered, neither
such Registration Statement nor such Prospectus will contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Use
its
best efforts to cause all Registrable Securities relating to any Registration
Statement to continue to be listed or quoted on the OTC Bulletin Board or to
be
listed or quoted on any other national securities exchange, quotation system
or
market, if any, on which similar securities issued by the Company are then
listed or traded as and when required pursuant to the Purchase
Agreement.
(l) Comply
in
all material respects with all applicable rules and regulations of the
Commission and make generally available to its security holders all documents
filed or required to be filed with the Commission, including, but not limited,
to, earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 not later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) commencing on the first day of the first fiscal quarter of the
Company after the effective date of each of the Registration Statements, which
statement shall conform to the requirements of Rule 158.
9
(m) Within
two (2) Business Days after a Registration Statement which covers the
Registrable Securities is ordered effective by the Commission, the Company
shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Holders
whose
Registrable Securities are included in such Registration Statement) confirmation
that such Registration Statement has been declared effective by the Commission
in the form attached hereto as Exhibit
C.
(n) The
Company may require each selling Holder to furnish to the Company information
regarding such Holder and the distribution of such Registrable Securities as
is
required by law to be disclosed in any Registration Statement, Prospectus,
or
any amendment or supplement thereto, and the Company may exclude from such
registration the Registrable Securities of any such Holder who unreasonably
fails to furnish such information within a reasonable time after receiving
such
request.
If
any
Registration Statement refers to any Holder by name or otherwise as the holder
of any securities of the Company, then such Holder shall have the right to
require (if such reference to such Holder by name or otherwise is not required
by the Securities Act or any similar federal statute then in force) the deletion
of the reference to such Holder in any amendment or supplement to such
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each
Holder covenants and agrees that it will not sell any Registrable Securities
under any Registration Statement until the Company has electronically filed
the
Prospectus as then amended or supplemented as contemplated in Section 3(g)
and
notice from the Company that such Registration Statement and any post-effective
amendments thereto have become effective as contemplated by Section
3(c).
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the
kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v), 3(c)(vi) or 3(n),
such Holder will forthwith discontinue disposition of such Registrable
Securities under a Registration Statement until such Holder’s receipt of the
copies of the supplemented Prospectus and/or amended Registration Statement
contemplated by Section 3(j), or until it is advised in writing (the
“Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement.
(o) If
(i)
there is material non-public information regarding the Company which the
Company’s Board of Directors (the “Board”)
determines not to be in the Company’s best interest to disclose and which the
Company is not otherwise required to disclose, (ii) there is a significant
business opportunity (including, but not limited to, the acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction) available
to
the Company which the Board determines not to be in the Company’s best interest
to disclose, or (iii) the Company is required to file a post-effective amendment
to a Registration Statement to incorporate the Company’s quarterly and annual
reports and audited financial statements on Forms 10-Q and 10-K, then the
Company may (x) postpone or suspend filing of a registration statement for
a
period not to exceed thirty (30) consecutive days or (y) postpone or suspend
effectiveness of a registration statement for a period not to exceed twenty
(20)
consecutive days; provided,
that
the Company may not postpone or suspend effectiveness of a registration
statement under this Section 3(n) for more than forty-five (45) days in the
aggregate during any three hundred sixty (360) day period; provided,
however,
that no
such postponement or suspension shall be permitted for consecutive twenty (20)
day periods arising out of the same set of facts, circumstances or
transactions.
10
4. Registration
Expenses.
All
fees
and expenses incident to the performance of or compliance with this Agreement
by
the Company, except as and to the extent specified in this Section 4, shall
be
borne by the Company whether or not a Registration Statement is filed or becomes
effective and whether or not any Registrable Securities are sold pursuant to
such Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing
fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with each securities exchange or market on which Registrable
Securities are required hereunder to be listed, if any, (B) with respect to
filing fees required to be paid to the Financial Industry Regulatory Authority
and the NASD Regulation, Inc. (including, without limitation, pursuant to NASD
Rule 2710) and (C) in compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as the Holders of a majority
of
Registrable Securities may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
and of printing prospectuses if the printing of prospectuses is requested by
the
holders of a majority of the Registrable Securities included in a Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and Special Counsel for the Holders,
in
the case of the Special Counsel, up to a maximum amount of $7,500, (v)
Securities Act liability insurance, if the Company so desires such insurance,
and (vi) fees and expenses of all other Persons retained by the Company in
connection with the consummation of the transactions contemplated by this
Agreement, including, without limitation, the Company’s independent public
accountants (including the expenses of any comfort letters or costs associated
with the delivery by independent public accountants of a comfort letter or
comfort letters). In addition, the Company shall be responsible for all of
its
internal expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement (including, without limitation,
all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange if required hereunder. The Company shall not be responsible
for any discounts, commissions, transfer taxes or other similar fees incurred
by
the Holders in connection with the sale of the Registrable
Securities.
5. Indemnification.
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, managers, partners, members,
shareholders, agents, brokers, investment advisors and employees of each of
them, each Person who controls any such Holder (within the meaning of Section
15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys’ fees) and expenses (collectively, “Losses”)
(as
determined by a court of competent jurisdiction in a final judgment not subject
to appeal or review), as incurred, arising out of or relating to any violation
of securities laws or untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission
of
a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, except to the extent, but only to the extent, that such
untrue statements or omissions are based solely upon information regarding
such
Holder or such other Indemnified Party furnished in writing to the Company
by
such Holder expressly for use therein. The Company shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding of which
the
Company is aware in connection with the transactions contemplated by this
Agreement.
11
(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents and employees
of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review), as incurred, arising
solely out of or based solely upon any untrue statement of a material fact
contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or arising solely out
of
or based solely upon any omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in
any
information so furnished in writing by such Holder or other Indemnifying Party
to the Company specifically for inclusion in any Registration Statement or
such
Prospectus. Notwithstanding anything to the contrary contained herein, each
Holder shall be liable under this Section 5(b) for only that amount as does
not
exceed the net proceeds to such Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party promptly shall notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall be entitled to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to
the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
12
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume
the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such parties shall have been advised by counsel
that a conflict of interest is likely to exist if the same counsel were to
represent such Indemnified Party and the Indemnifying Party (in which case,
if
such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened Proceeding in respect of which any Indemnified Party is a party
and
indemnity has been sought hereunder, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All
fees
and expenses of the Indemnified Party (including reasonable fees and expenses
to
the extent incurred in connection with investigating or preparing to defend
such
Proceeding in a manner not inconsistent with this Section) shall be paid to
the
Indemnified Party, as incurred, within ten (10) Business Days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided,
that
the Indemnified Party shall reimburse all such fees and expenses to the extent
it is finally judicially determined that such Indemnified Party is not entitled
to indemnification hereunder).
(d) Contribution.
If a
claim for indemnification under Section 5(a) or 5(b) is due but unavailable
to
an Indemnified Party because of a failure or refusal of a governmental authority
to enforce such indemnification in accordance with its terms (by reason of
public policy or otherwise), then each 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, in such proportion
as is appropriate to reflect the relative benefits received by the Indemnifying
Party on the one hand and the Indemnified Party on the other from the offering
of the Preferred Stock and the Warrants. If, but only if, the allocation
provided by the foregoing sentence is not permitted by applicable law, the
allocation of contribution shall be made in such proportion as is appropriate
to
reflect not only the relative benefits referred to in the foregoing sentence
but
also the relative fault, as applicable, of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses 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 any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates
to
information supplied by, such Indemnifying Party or Indemnified Party, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees
or
expenses if the indemnification provided for in this Section was available
to
such party in accordance with its terms. In no event shall any selling Holder
be
required to contribute an amount under this Section 5(d) in excess of the net
proceeds received by such Holder upon the sale of such Holder’s Registrable
Securities pursuant to a Registration Statement giving rise to such contribution
obligation.
13
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties pursuant to the law.
6. Rule
144.
As
long
as any Holder owns Preferred Stock, Warrants or Registrable Securities, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by
the
Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange
Act. As long as any Holder owns Preferred Stock, Warrants or Registrable
Securities, if the Company is not required to file reports pursuant to Section
13(a) or 15(d) of the Exchange Act, it will prepare and furnish to the Holders
and make publicly available in accordance with Rule 144 promulgated under the
Securities Act annual and quarterly financial statements, together with a
discussion and analysis of such financial statements in form and substance
substantially similar to those that would otherwise be required to be included
in reports required by Section 13(a) or 15(d) of the Exchange Act, as well
as
any other information required thereby, in the time period that such filings
would have been required to have been made under the Exchange Act. The Company
further covenants that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable
such
Person to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including providing any legal opinions reasonably
requested relating to such sale pursuant to Rule 144 within five (5) Business
Days from the date of such request. Upon the request of any Holder, the Company
shall deliver to such Holder a written certification of a duly authorized
officer as to whether it has complied with such requirements.
14
7. Selling
Holder Questionnaire.
Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Exhibit B (a “Selling Holder Questionnaire”) in
connection with the execution of this Agreement and prior to the filing of
each
Registration Statement required hereunder. The Company shall not be required
to
include the Registrable Securities of a Holder in a Registration Statement
and
shall not be required to pay any liquidated or other damages hereunder to any
Holder who fails to furnish to the Company a fully completed Selling Holder
Questionnaire within ten (10) Business Days of a request therefore by the
Company.
8. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, such Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under
this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(b) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has, as of the date hereof entered
into
and currently in effect, nor shall the Company or any of its subsidiaries,
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 the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Without limiting
the generality of the foregoing and subject to the Shell Registration Rights
Agreement and the Vision Registration Rights Agreement, without the written
consent of the Holders of a majority of the then outstanding Registrable
Securities, 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 respects to the prior rights
in
full of the Holders set forth herein, and are not otherwise in conflict with
the
provisions of this Agreement.
(c) No
Piggyback on Registrations.
Subject
to the Shell Registration Rights Agreement and the Vision Registration Rights
Agreement, neither the Company nor any of its security holders (other than
the
Holders in such capacity pursuant hereto or holders of issued and outstanding
securities of the Company immediately prior to the Reverse Merger Transaction)
may include securities of the Company in any Registration Statement, and the
Company shall not after the date hereof enter into any agreement providing
such
right to any of its securityholders, unless the right so granted is subject
in
all respects to the prior rights in full of the Holders set forth herein, and
is
not otherwise in conflict with the provisions of this Agreement.
15
(d) Piggy-Back
Registrations.
If at
any time when there is not an effective Registration Statement providing for
the
resale of the Remaining Registrable Securities, the Company shall determine
to
prepare and file with the Commission a registration statement relating to an
offering for its own account or the account of others under the Securities
Act
of any of its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of
any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, the Company shall send to each holder of
Remaining Registrable Securities written notice of such determination and,
if
within thirty (30) days after receipt of such notice, or within such shorter
period of time as may be specified by the Company in such written notice as
may
be necessary for the Company to comply with its obligations with respect to
the
timing of the filing of such registration statement, any such holder shall
so
request in writing, (which request shall specify the Remaining Registrable
Securities intended to be disposed of by the Purchaser), the Company will cause
the registration under the Securities Act of all Remaining Registrable
Securities which the Company has been so requested to register by the holder,
to
the extent requisite to permit the disposition of the Remaining Registrable
Securities so to be registered, provided that if at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or
to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to such holder and, thereupon, (i) in
the
case of a determination not to register, shall be relieved of its obligation
to
register any Remaining Registrable Securities in connection with such
registration (but not from its obligation to pay expenses in accordance with
Section 4 hereof), and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Remaining Registrable Securities
being registered pursuant to this Section 8(d) for the same period as the delay
in registering such other securities. The Company shall include in such
registration statement all or any part of such Remaining Registrable Securities
such holder requests to be registered. In the case of an underwritten public
offering, if the managing underwriter(s) or underwriter(s) should reasonably
object to the inclusion of the Remaining Registrable Securities in such
registration statement, then if the Company after consultation with the managing
underwriter should reasonably determine that the inclusion of such Remaining
Registrable Securities would materially adversely affect the offering
contemplated in such registration statement, and based on such determination
recommends inclusion in such registration statement of fewer or none of the
Remaining Registrable Securities of the Holders, then (x) the number of
Remaining Registrable Securities of the Holders included in such registration
statement shall be reduced pro-rata among such Holders (based upon the number
of
Remaining Registrable Securities requested to be included in the registration),
if the Company after consultation with the underwriter(s) recommends the
inclusion of fewer Remaining Registrable Securities, or (y) none of the
Remaining Registrable Securities of the Holders shall be included in such
registration statement, if the Company after consultation with the
underwriter(s) recommends the inclusion of none of such Remaining Registrable
Securities; provided, however, that if securities are being offered for the
account of other persons or entities as well as the Company, such reduction
shall not represent a greater fraction of the number of Remaining Registrable
securities intended to be offered by the Holders than the fraction of similar
reductions imposed on such other persons or entities (other than the
Company).
16
(e) Failure
to File Registration Statement and Other Events.
The
Company and the Purchaser agree that the Holders will suffer damages if a
Registration Statement is not filed on or prior to the Filing Date or any
Additional Filing Date, as applicable, or after notice from the Holders, as
set
forth in Section 2(b) hereto or Section 2A(b) hereto, and, in each case, not
declared effective by the Commission 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
Holders 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 after notice
from the Holders, as set forth in Section 2(b) hereof or Section 2A(b) hereof,
or (B) a Registration Statement is not declared effective by the
Commission on or prior to the applicable Effectiveness Date, or (C) the Company
fails to file with the Commission a request for acceleration in accordance
with
Rule 461 promulgated under the Securities Act within three (3) Business Days
of
the date that the Company is notified (orally or in writing, whichever is
earlier) by the Commission that a Registration Statement will not be “reviewed,”
or not subject to further review, or (D) 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,
or
(E) the Company has breached Section 3(n), or (F) trading in the Common Stock
shall be suspended or if the Common Stock is no longer quoted on or is delisted
from the OTC Bulletin Board (or other principal exchange on which the Common
Stock is listed or traded) for any reason for more than three (3) Business
Days
in the aggregate (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) the date on which such three (3) Business Day period
is
exceeded, or for purposes of clause (D) after more than fifteen (15) Business
Days, or for purposes of clause (F) the date on which such three (3) Business
Day period is exceeded, being referred to as “Event
Date”),
the
Company shall pay an amount in cash as liquidated damages to each Holder equal
to one percent (1%) of the amount of the Holder’s remaining initial investment
in the Units for each calendar month or portion thereof thereafter from the
Event Date until the applicable Event is cured; provided,
however,
that in
no event shall the amount of liquidated damages payable at any time and from
time to time to any Holder pursuant to this Section 8(e) exceed an aggregate
of
ten percent (10%) of the amount of the Holder’s remaining initial investment in
the Units; and provided,
further,
that
notwithstanding the foregoing, in the event the Commission does not permit
all
of the Registrable Securities to be included in a Registration Statement because
of its application of Rule 415, no liquidated damages shall be payable pursuant
to this Section by the Company with respect to any Registrable Securities that
the Company was not permitted to include on such Registration Statement.
Notwithstanding anything to the contrary in this paragraph (e), if (a) any
of
the Events described in clauses (A), (B), (C), (D) or (F) shall have occurred,
(b) on or prior to the applicable Event Date, the Company shall have exercised
its rights under Section 3(n) hereof and (c) the postponement or suspension
permitted pursuant to such Section 3(n) shall remain effective as of such
applicable Event Date, then the applicable Event Date shall be deemed instead
to
occur on the second Business Day following the termination of such postponement
or suspension. Liquidated damages payable by the Company pursuant to this
Section 8(e) shall be payable on the first (1st) Business Day of each thirty
(30) day period following the Event Date. The parties agree that the liquidated
damages set forth in this Section 8(e) shall be the exclusive remedy of the
parties hereto with respect to the breaches by the Company of this Section
8(e).
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of a majority of the Registrable
Securities outstanding.
17
(g) Notices.
Any
notice, demand, request, waiver or other communication required or permitted
to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery, telecopy or facsimile at the address or number designated below (if
delivered on a business day during normal business hours where such notice
is to
be received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is
to be received) or (b) on the second business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual receipt of such mailing, whichever shall first occur. The addresses
for
such communications shall be:
|
If
to the Company:
|
Xx.
00,
Xxxx
Xxxx Xxxx, Xxx Xxx (Xxxxxx Xxxx)
Development
Area
Tianjin,
People’s Republic of China 300350
Attention:
Xxxx Xxxx
Tel.
No.: 00-00-0000-0000
Fax
No.: 00-00-0000-0000
|
|
with
copies (which copies
shall
not constitute notice)
to:
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxx X. Xxxx, Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
|
|
If
to the Purchaser:
|
At
the address of the Purchaser set forth on
Schedule
1
to
this Agreement
|
|
with
copies (which copies
shall
not constitute notice)
to:
|
Xxxx
Xxxxxxxxxx
Blue
Ridge Investments, LLC
000
X. Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Mailcode:
NC1-027-14-01
|
Any
party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
(h) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns and shall inure to the benefit of each
Holder and its successors and assigns. The Company may not assign this Agreement
or any of its rights or obligations hereunder without the prior written consent
of each Holder. The Purchaser may assign its rights hereunder in the manner
and
to the Persons as permitted under the Purchase Agreement.
18
(i) Assignment
of Registration Rights.
The
rights of each Holder hereunder, including the right to have the Company
register for resale Registrable Securities in accordance with the terms of
this
Agreement, shall be automatically assignable by each Holder to any Person to
whom all or a portion of the Preferred Stock, the Warrants or the Registrable
Securities are transferred if: (i) the Holder agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement
is
furnished to the Company within a reasonable time after such assignment, (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee
or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned, (iii) following such transfer or assignment
the further disposition of such securities by the transferee or assignees is
restricted under the Securities Act and applicable state securities laws unless
such securities are registered in a Registration Statement under this Agreement
(in which case the Company shall be obligated to amend such Registration
Statement to reflect such transfer or assignment) or are otherwise exempt from
registration, (iv) at or before the time the Company receives the written notice
contemplated by clause (ii) of this Section, the transferee or assignee agrees
in writing with the Company to be bound by all of the provisions of this
Agreement, and (v) such transfer shall have been made in accordance with the
applicable requirements of the Purchase Agreement. The rights to assignment
shall apply to the Holders (and to subsequent) successors and
assigns.
(j) Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement and shall become effective when
counterparts have been signed by each party and delivered to the other parties
hereto, it being understood that all parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or
on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(k) Governing
Law; Jurisdiction.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction. This Agreement shall not be interpreted or construed
with
any presumption against the party causing this Agreement to be drafted. The
Company and the Holders agree that venue for any dispute arising under this
Agreement will lie exclusively in the state or federal courts located in New
York County, New York, and the parties irrevocably waive any right to raise
forum
non conveniens
or any
other argument that New York is not the proper venue. The Company and the
Holders irrevocably consent to personal jurisdiction in the state and federal
courts of the state of New York. The Company and the Holders consent to process
being served in any such suit, action or proceeding by mailing a copy thereof
to
such party at the address in effect for notices to it under this Agreement
and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing in this Section 8(k) shall affect or limit any
right
to serve process in any other manner permitted by law. The Company and the
Holders hereby agree that the prevailing party in any suit, action or proceeding
arising out of or relating to this Agreement or the Purchase Agreement, shall
be
entitled to reimbursement for reasonable legal fees from the non-prevailing
party. The parties hereby waive all rights to a trial by jury.
19
(l) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(m) Severability.
If any
term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable in any respect, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ
an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void
or
unenforceable.
(n) Headings.
The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
(o) Shares
Held by the Company and its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the
Company or its Affiliates (other than any Holder or transferees or successors
or
assigns thereof if such Holder is deemed to be an Affiliate solely by reason
of
its holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(p) Independent
Nature of Purchaser.
The
Company acknowledges that the obligations of the Purchaser under the Transaction
Documents are several and not joint with the obligations of any third party,
and
no Purchaser shall be responsible in any way for the performance of the
obligations of any other party under the Transaction Documents. The Company
acknowledges that the decision of the Purchaser to purchase Securities pursuant
to the Purchase Agreement has been made by such Purchaser independently of
any
third party and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties,
liabilities, results of operations, condition (financial or otherwise) or
prospects of the Company or of its Subsidiaries which may have made or given
by
any third party or by any agent or employee of any third party, and no third
party or any of its agents or employees shall have any liability to the
Purchaser (or any other person) relating to or arising from any such
information, materials, statements or opinions. The Company acknowledges that
nothing contained herein, or in any Transaction Document, and no action taken
by
the Purchaser pursuant hereto or thereto (including, but not limited to, the
(i)
inclusion of the Purchaser in a Registration Statement and (ii) review by,
and
consent to, such Registration Statement by the Purchaser) shall be deemed to
constitute the Purchaser as a partnership, an association, a joint venture
or
any other kind of entity, or create a presumption that the Purchaser and any
third party are in any way acting in concert or as a group with respect to
such
obligations or the transactions contemplated by the Transaction Documents.
The
Company acknowledges that the Purchaser shall be entitled to independently
protect and enforce its rights, including without limitation, the rights arising
out of this Agreement or out of the other Transaction Documents, and it shall
not be necessary for any third party to be joined as an additional party in
any
proceeding for such purpose.
20
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
21
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed by their respective authorized persons as of
the
date first indicated above.
|
By:
|
/s/
Xxxx Xxxx
|
|
|
Name:
|
Xxxx
Xxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
THE
PURCHASER:
|
||
|
BLUE
RIDGE INVESTMENTS, LLC
|
||
|
By:
|
/s/
Xxxx Xxxxxxxxxx
|
|
|
Name:
|
Xxxx
Xxxxxxxxxx
|
|
|
Title:
|
Vice
President
|
|
22
Exhibit
A
Plan
of Distribution
The
selling security holders and any of their pledgees, donees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock being offered under this prospectus on any stock exchange,
market or trading facility on which shares of our common stock are traded or
in
private transactions. These sales may be at fixed or negotiated prices. The
selling security holders may use any one or more of the following methods when
disposing of shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resales by the broker-dealer
for its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
to
cover short sales made after the date that the registration statement
of
which this prospectus is a part is declared effective by the
Commission;
|
|
·
|
broker-dealers
may agree with the selling security holders to sell a specified number
of
such shares at a stipulated price per
share;
|
|
·
|
a
combination of any of these methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
shares may also be sold under Rule 144 under the Securities Act of 1933, as
amended (“Securities Act”), if available, rather than under this prospectus. The
selling security holders have the sole and absolute discretion not to accept
any
purchase offer or make any sale of shares if they deem the purchase price to
be
unsatisfactory at any particular time.
The
selling security holders may pledge their shares to their brokers under the
margin provisions of customer agreements. If a selling security holder defaults
on a margin loan, the broker may, from time to time, offer and sell the pledged
shares.
Broker-dealers
engaged by the selling security holders may arrange for other broker-dealers
to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling security holders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, which
commissions as to a particular broker or dealer may be in excess of customary
commissions to the extent permitted by applicable law.
23
If
sales
of shares offered under this prospectus are made to broker-dealers as
principals, we would be required to file a post-effective amendment to the
registration statement of which this prospectus is a part. In the post-effective
amendment, we would be required to disclose the names of any participating
broker-dealers and the compensation arrangements relating to such
sales.
The
selling security holders and any broker-dealers or agents that are involved
in
selling the shares offered under this prospectus may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with these
sales. Commissions received by these broker-dealers or agents and any profit
on
the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Any broker-dealers or agents
that are deemed to be underwriters may not sell shares offered under this
prospectus unless and until we set forth the names of the underwriters and
the
material details of their underwriting arrangements in a supplement to this
prospectus or, if required, in a replacement prospectus included in a
post-effective amendment to the registration statement of which this prospectus
is a part.
The
selling security holders and any other persons participating in the sale or
distribution of the shares offered under this prospectus will be subject to
applicable provisions of the Exchange Act, and the rules and regulations under
that act, including Regulation M. These provisions may restrict activities
of,
and limit the timing of purchases and sales of any of the shares by, the selling
security holders or any other person. Furthermore, under Regulation M, persons
engaged in a distribution of securities are prohibited from simultaneously
engaging in market making and other activities with respect to those securities
for a specified period of time prior to the commencement of such distributions,
subject to specified exceptions or exemptions. All of these limitations may
affect the marketability of the shares.
If
any of
the shares of common stock offered for sale pursuant to this prospectus are
transferred other than pursuant to a sale under this prospectus, then subsequent
holders could not use this prospectus until a post-effective amendment or
prospectus supplement is filed, naming such holders. We offer no assurance
as to
whether any of the selling security holders will sell all or any portion of
the
shares offered under this prospectus.
We
have
agreed to pay all fees and expenses we incur incident to the registration of
the
shares being offered under this prospectus. However, each selling security
holder and purchaser is responsible for paying any discounts, commissions and
similar selling expenses they incur.
We
and
the selling security holders have agreed to indemnify one another against
certain losses, damages and liabilities arising in connection with this
prospectus, including liabilities under the Securities Act.
24
Exhibit
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock (the “Common
Stock”),
of
Southern Sauce Company, Inc., a Florida corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities
and Exchange Commission (the “Commission”)
a
Registration Statement for the registration and resale of the Registrable
Securities, in accordance with the terms of the Registration Rights Agreement,
dated as of July 18, 2008 (the “Registration
Rights Agreement”),
among
the Company and the Investors named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth
below. All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
The
undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
| 1. |
Name.
|
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural person
who
directly or indirectly alone or with others has power to vote or
dispose
of the securities covered by the
questionnaire):
|
| 2. |
Address
for Notices to Selling
Securityholder:
|
|
Telephone:______________________________________________________________________________________________________________________
|
|
Fax:______________________________________________________________________________________________________________________
|
|
Contact Person:________________________________________________________________________________________________________________________
|
25
| 3. |
Beneficial
Ownership of Registrable
Securities:
|
Type
and
Principal Amount of Registrable Securities beneficially owned:
| 4. |
Broker-Dealer
Status:
|
|
(a)
|
Are
you a broker-dealer?
|
|
Note:
|
If
yes, the Commission’s staff has indicated that you may need to be
identified as an underwriter in the Registration
Statement.
|
|
(b)
|
Are
you an affiliate of a
broker-dealer?
|
Yes o No
o
|
(c)
|
If
you are an affiliate of a broker-dealer, do you certify that you
bought
the Registrable Securities in the ordinary course of business, and
at the
time of the purchase of the Registrable Securities to be resold,
you had
no agreements or understandings, directly or indirectly, with any
person
to distribute the Registrable
Securities?
|
Yes
o No
o
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
5.
|
Beneficial
Ownership of Other Securities of the Company Owned by the Selling
Securityholder.
|
Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
Type
and
Amount of Other Securities beneficially owned by the Selling
Securityholder:
| 6. |
Relationships
with the Company:
|
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
26
State
any
exceptions here:
7. The
Company has advised each Selling Stockholder that it may not use shares
registered on the Registration Statement to cover short sales of Common Stock
made prior to the date on which the Registration Statement is declared effective
by the Commission, in accordance with 1997 Securities and Exchange Commission
Manual of Publicly Available Telephone Interpretations Section A.65. If a
Selling Stockholder uses the prospectus for any sale of the Common Stock, it
will be subject to the prospectus delivery requirements of the Securities Act.
The Selling Stockholders will be responsible to comply with the applicable
provisions of the Securities Act and Exchange Act, and the rules and regulations
thereunder promulgated, including, without limitation, Regulation M, as
applicable to such Selling Stockholders in connection with resales of their
respective shares under the Registration Statement.
The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
and prior to the Effective Date for the Registration Statement.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion of such
information in the Registration Statement and the related prospectus. The
undersigned understands that such information will be relied upon by the Company
in connection with the preparation or amendment of the Registration Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice
and Questionnaire to be executed and delivered either in person or by its duly
authorized agent.
|
Dated: _________________________
|
Beneficial Owner: ___________________
|
|
By:
|
||
|
Name:
|
||
|
Title:
|
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
Xxxx
Xxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
27
Exhibit
C
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[TRANSFER
AGENT]
_____________________________
_____________________________
Attn:
_________________
Ladies
and Gentlemen:
We
are
counsel to SOUTHERN
SAUCE COMPANY, INC.,
a
Florida corporation (the “Company”). The Company entered into a Registration
Rights Agreement, dated July 18, 2008 (the “Registration Rights Agreement”),
with Blue Ridge Investments, LLC (collectively, the “Stockholders”), pursuant to
which the Company agreed, among other things, to register the Registrable
Securities (as defined in the Registration Rights Agreement), under the
Securities Act of 1933, as amended (the “1933 Act”). In connection with the
Company’s obligations under the Registration Rights Agreement, on
________________, 2008, the Company filed a Registration Statement on Form
S-1
(File No. 333-________) (the “Registration Statement”) with the Securities and
Exchange Commission (the “SEC”) relating to the resale of the Registrable
Securities which names each of the Stockholders as a selling stockholder
thereunder.
In
connection with the foregoing, we advise you that a member of the SEC’s staff
has advised us by telephone that the SEC has entered an order declaring the
Registration Statement effective under the 1933 Act at [ENTER TIME OF
EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge, after
telephonic inquiry of a member of the SEC’s staff, that any stop order
suspending its effectiveness has been issued or that any proceedings for that
purpose are pending before, or threatened by, the SEC and accordingly, the
Registrable Securities are available for resale under the 1933 Act pursuant
to
the Registration Statement.
cc: [STOCKHOLDERS]
28
