REGISTRATION RIGHTS AGREEMENT
Exhibit
10.25
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of ______________________, 2007, by and between
DRTATTOFF, LLC, a California limited liability company (the “Company”),
and
the purchaser that has executed the signature page of this Agreement (the
“Purchaser”).
Preliminary
Statements
The
Purchaser has purchased Units, as defined in the Subscription Agreement of
even
date herewith, (the “Units”)
of the
Company, and one warrant to purchase one half Unit (the “Warrant”).
The
Units were purchased pursuant to that certain subscription agreement entered
into between the Purchaser and the Company (the “Subscription
Agreement”).
The
Company has agreed to grant the Purchaser certain registration rights in
accordance with the terms of this Agreement. Therefore, in consideration
of the
mutual promises and covenants set forth herein, the parties agree as
follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined
in the
Subscription Agreement shall have the meanings given such terms in the
Subscription Agreement. As used in this Agreement, the following terms shall
have the following meanings:
“Commission”
means
the Securities and Exchange Commission.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing
Date”
means,
with respect to the Registration Statement required to be filed to cover
the
resale by the Holders of the Registrable Securities, the 45th
calendar
day following the Closing Date of the merger with Lifescience Opportunities,
Inc.
“Holder”
or
“Holders”
means
the Purchaser or Purchasers or any of their affiliates or transferees to
the
extent any of them hold Registrable Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(b).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(b).
“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 the 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 the Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the Units purchased or purchased upon exercise of the Warrants, or other
securities of the Company or any other issuer or issuable in respect of such
Units (because of stock splits, stock dividends, reclassifications,
recapitalizations, mergers, combinations or similar events, if applicable);
provided, however, that the shares of Common Stock which are Registrable
Securities shall cease to be Registrable Securities upon any sale or transfer
of
such shares pursuant to a Registration Statement, Section 4(1) of the Securities
Act, Rule 144 under the Securities Act or otherwise.
“Registration
Statement”
means
a
registration statement filed by the Company with the Commission on any
registration form prescribed by the Commission permitting a secondary offering
or distribution, other than on Form X-0, Xxxx X-0 or similar forms.
“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.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Trading
Market”
means
any of the Pink Sheets LLC electronic quotation service, NASD OTC Bulletin
Board, NASDAQ Global Select Market, NASDAQ Global Market, NASDAQ Capital
Market,
American Stock Exchange or the New York Stock Exchange.
“Units”
means
the units of membership interests of the Company, and any securities into
which
such units shall hereinafter have been reclassified into.
“Warrants”
means
the Unit purchase warrants issued by the Company.
2. Registration.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a Registration Statement covering the resale of all Registrable Securities
for
an offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form SB-2 (except if the Company is eligible
to register for resale the Registrable Securities on Form S-3 in the future,
the
Company shall file a post effective amendment to the registration statement
on
Form S-3 covering the Registrable Securities and shall use its commercially
reasonable efforts to cause such Registration Statement to be declared effective
as promptly as practicable thereafter).
2
(b) The
Company shall use its reasonable best efforts to cause the Registration
Statement to be declared effective by the Commission as soon as practicable
(including filing with the Commission a request for acceleration of
effectiveness in accordance with Rule 461 promulgated under the Securities
Act
within five (5) Business Days after 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 be subject to further
review and the effectiveness of the Registration Statement may be accelerated)
and shall use its commercially reasonable efforts to keep the Registration
Statement continuously effective under the Securities Act until the earlier
of:
(i) the date that all Registrable Securities covered by the Registration
Statement have been sold or may be sold by non-affiliates without volume
restrictions pursuant to Rule 144(k) as determined by the counsel to the
Company
pursuant to a written opinion letter to such effect, addressed and acceptable
to
the Company's transfer agent and the affected Holders and (ii) the date which
is
the second anniversary of the date in which the Registration Statement was
declared effective by the Commission (the “Effectiveness
Period”).
Such
Registration Statement shall also cover, to the extent allowable under the
Securities Act and the rules promulgated thereunder (including Rule 416),
such
indeterminate number of additional shares of Common Stock resulting from
stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. It is agreed and understood that the Company shall, from time
to
time, be obligated to file an additional Registration Statement to cover
any
Registrable Securities which are not registered for resale pursuant to a
pre-existing Registration Statement.
(c) If:
(i)
the Registration Statement is not filed on or prior to the Filing Date (if
the
Company files a Registration Statement without affording the Holders the
opportunity to review and comment on the same as required by Section 3(a)
hereof, the Company shall not be deemed to have satisfied this clause (i)),
(ii)
after its Effective Date such Registration Statement ceases for any reason
to be
effective and available to the Holders as to all Registrable Securities to
which
it is required to cover at any time prior to the expiration of its Effectiveness
Period for more than 20 consecutive Trading Days or an aggregate of 50 Trading
Days (which need not be consecutive)(any such failure or breach being referred
to as an “Event,”
and for
purposes of clause (i) the date on which such Event occurs, or for purposes
of
clause (ii) the date which such 20 consecutive or 50 Trading Day period (as
applicable) is exceeded, being referred to as “Event
Date”),
then
in addition to any other rights available to the Holders: (x) on such Event
Date
the Company shall pay to each Holder an amount in cash, as partial liquidated
damages and not as a penalty, equal to .5% of the aggregate Subscription
Amount
paid by such Holder pursuant to the Purchase Agreement (which remedy shall
not
be exclusive of any other remedies available under this Agreement); and (y)
on
each monthly anniversary of each such Event Date thereof (if the applicable
Event shall not have been cured by such date) until the applicable Event
is
cured, the Company shall pay to each Holder an amount in cash, as partial
liquidated damages and not as a penalty, equal to .5% of the aggregate
Subscription Amount paid by such Holder pursuant to the Purchase Agreement.
The
parties agree that the Company will not be liable for liquidated damages
under
this Section 2(c) in respect of any consideration paid by the Purchasers
upon
exercise of the Warrants. If the Company fails to pay any partial liquidated
damages pursuant to this Section in full within ten days after the date payable,
the Company will pay interest thereon at a rate of 10% per annum (or such
lesser
maximum amount that is permitted to be paid by applicable law) to the Holder,
accruing daily from the date such partial liquidated damages are due until
such
amounts, plus all such interest thereon, are paid in full. The partial
liquidated damages pursuant to the terms hereof shall apply on a pro-rata
basis
for any portion of a month prior to the cure of an Event, except in the case
of
the first Event Date. Notwithstanding the foregoing, the maximum amount of
payment to a Holder associated with any and all Events shall not exceed 10%
of
the aggregate Subscription Amount paid by such Holder pursuant to the Purchase
Agreement.
3
(d) Each
Holder shall furnish to the Company a completed Questionnaire in the form
as
provided by the Company (a “Selling
Holder Questionnaire”).
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 under Section 2(c) to any Holder who fails to furnish to the
Company a fully completed Selling Holder Questionnaire at least two Trading
Days
prior to the Filing Date (subject to the requirements set forth in Section
3(a)).
3. Registration
Procedures.
When
the Company proposes to effect the registration of any of the Registrable
Securities under the Securities Act, the Company shall:
(a) furnish
to the Purchaser such number of copies of the Registration Statement and
the
Prospectus included therein (including each preliminary Prospectus) as the
Purchaser reasonably may request to facilitate the public sale or disposition
of
the Registrable Securities covered by the Registration Statement;
(b) use
its
commercially reasonable efforts to register or qualify the Purchaser’s
Registrable Securities covered by the Registration Statement under the
securities or “blue sky” laws of such jurisdictions within the United States as
the Purchaser may reasonably request, provided, however, that the Company
shall
not for any such purpose be required to qualify generally to transact business
as a foreign corporation in any jurisdiction where it is not so qualified
or to
consent to general service of process in any such jurisdiction; and
(c) list
the
Registrable Securities covered by the Registration Statement with any Trading
Market on which the Common Stock of the Company is then listed.
4
4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including reasonable counsel fees) incurred
in connection with complying with state securities or “blue sky” laws, fees of
the NASD, transfer taxes, fees of transfer agents and registrars are called
“Registration Expenses”. All selling commissions applicable to the sale of
Registrable Securities, including any fees and disbursements of any counsel
to
the Holders, are called “Selling Expenses” and shall be the responsibility of
the Purchasers. The Company shall only be responsible for all Registration
Expenses.
5. Indemnification.
(a) In
the
event of a registration of the Registrable Securities, the Holder (subject
to
the provisions of Section 5(b)) will indemnify and hold harmless the Company,
and its officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act, against all losses, claims,
damages or liabilities, joint or several, to which the Company or such persons
may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of any material fact which was furnished in writing
by
the Holder to the Company expressly for use in (and such information is
contained in) the Registration Statement under which such Registrable Securities
were registered under the Securities Act pursuant to this Agreement, any
preliminary Prospectus or final Prospectus contained therein, or any amendment
or supplement thereof, or arise out of or are based upon the omission or
alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
the
Company and each such person for any reasonable legal or other expenses incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that such Holder will be
liable
in any such case if and only to the extent that any such loss, claim, damage
or
liability arises out of or is based upon said Holder’s untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished in writing to the Company by or on behalf of said
Holder specifically for use in any such document, or (ii) in connection
with a Holder’s sale of Registrable Securities, including without limitation
alleged violations of Regulation M. Notwithstanding the provisions of this
paragraph, no Holder shall be required to indemnify any person or entity
in
excess of the amount of the aggregate net proceeds received by said Holder
in
respect of Registrable Securities in connection with any such registration
under
the Securities Act.
5
(b) Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified Party”) of notice of the commencement of any action, such
Indemnified Party shall, if a claim for indemnification in respect thereof
is to
be made against a party hereto obligated to indemnify such Indemnified Party
(an
“Indemnifying Party”), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from any
liability which it may have to such Indemnified Party other than under this
Section 5(b) and shall only relieve it from any liability which it may have
to
such Indemnified Party under this Section 5(b) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any such action
shall
be brought against any Indemnified Party and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake
the
defense thereof with counsel reasonably satisfactory to such Indemnified
Party,
and, after notice from the Indemnifying Party to such Indemnified Party of
its
election so to assume and undertake the defense thereof, the Indemnifying
Party
shall not be liable to such Indemnified Party under this Section 5(b) for
any
legal expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof; if the Indemnified Party retains its own counsel,
then
the Indemnified Party shall pay all fees, costs and expenses of such counsel,
provided, however, that, if the defendants in any such action include both
the
Indemnified Party and the Indemnifying Party and if counsel shall have
reasonably concluded that there may be reasonable defenses available to the
Indemnified Party which are different from or additional to those available
to
the Indemnifying Party or if the interests of the Indemnified Party reasonably
may be deemed to conflict with the interests of the Indemnifying Party in
either
case which would prohibit such counsel from representing both parties under
applicable conflicts of interest rules of professional ethics, the Indemnified
Party shall have the right to select one separate counsel and to assume such
legal defenses and otherwise to participate in the defense of such action,
with
the reasonable expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the Indemnifying Party
as
incurred. Neither party shall settle any proceeding for which indemnification
is
sought without the written consent of the other party, which shall not be
unreasonably withheld.
(c)
Notwithstanding
any provision of this Agreement to the contrary, each Holder shall be treated
individually and separately from all other Holders under this Section 5,
and
will not become the subject of any obligation under this Section 5 as a result
of any action, failure to act, statement, omission, or otherwise of any other
Holder hereunder.
6. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their respective
obligations under this Agreement, each 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.
(b) Compliance.
The
Purchaser covenants and agrees that it (i) will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration Statement
and
(ii) promptly furnish to the Company all information required to be disclosed
in
the Registration Statement and Prospectus concerning the Purchaser (including
information in order to make the information previously furnished to the
Company
by such Purchaser not misleading) and any other information regarding such
Purchaser and the distribution of such Registrable Securities as the Company
may
from time to time reasonably request.
6
(c) Discontinued
Disposition.
The
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of a Discontinuation
Event (as defined below), it will forthwith discontinue disposition of such
Registrable Securities under the applicable Registration Statement until
such
Holder’s receipt of the copies of the supplemented Prospectus and/or amended
Registration Statement 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. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this Section 6(c),
a
“Discontinuation Event” shall mean (i) 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 (the Company
shall
provide true and complete copies thereof and all written responses thereto
to
each of the Holders); (ii) any request by the Commission or any other Federal
or
state governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance
by the
Commission of any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or the initiation
of
any Proceedings for that purpose; (iv) 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; (v) the occurrence of any event or passage of time that makes the
financial statements included in such Registration Statement ineligible for
inclusion therein or any statement made in such 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
such Registration Statement or Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and/or
(vi) the occurrence or existence of any pending corporate development that,
in the reasonable discretion of the Board of Directors of the Company, makes
it
appropriate to suspend the availability of the Registration Statement and
the
related Prospectus.
(d) 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 then outstanding
Registrable Securities. Notwithstanding the foregoing, a waiver or consent
to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of certain Holders and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of
at
least a majority of the Registrable Securities to which such waiver or consent
relates; provided, however, that the provisions of this sentence may not
be
amended, modified, or supplemented except in accordance with the provisions
of
the immediately preceding sentence.
7
7. Notices.
All
notices and other communications required or permitted hereunder shall be
in
writing and shall be deemed to have been duly given one (1) business day
after
delivery to an overnight carrier with instructions to deliver to the applicable
address set forth below, or, if sent by facsimile, upon receipt of a
confirmation of delivery:
8. Registered
Holder:To
his or
her last known address as indicated on the Company’s books and
records.
9. The
Company:DRTATTOFF,
LLC
|
0000
Xxxxxxxx Xxxx
Xxxxxxx
Xxxxx XX 00000
Facsimile
No.: (000) 000-0000
|
10. Attention: Xxxxx
Xxxxx, CEO
|
If
to any other Person who is
then
the registered Holder:
|
To the address of such Holder as it appears in the |
| stock transfer books of the Company |
11. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
and
be binding upon the Holders. Except as it relates to assignments to affiliates
of the Company, the Company may not assign its rights or obligations hereunder
without the prior written consent of each Holder. Each Holder may assign
their
respective rights hereunder in the manner and to the Persons as permitted
under
the Warrants and the Subscription Agreement with the prior written consent
of
the Company. No person shall have the rights of the Holder hereunder unless
they
have executed a joinder to the Agreement in a form reasonably acceptable
to the
Company.
12. Execution
in 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. 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.
8
13. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of California, without regard to the
principles of conflicts of law thereof. Each party agrees that all proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or
its
respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in
the
State of California, County of Los Angeles. Each party hereto hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting
in
the State of California for the adjudication of any dispute hereunder or
in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) 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 contained herein shall be deemed to limit in any way any
right
to serve process in any manner permitted by law. The parties hereto hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
and
all right to trial by jury in any legal proceeding arising out of or relating
to
this Agreement or the transactions contemplated hereby. If any party shall
commence a proceeding to enforce any provisions of this Agreement, then the
prevailing party in such proceeding shall be reimbursed by the other party
for
its reasonable attorneys fees and other costs and expenses incurred with
the
investigation, preparation and prosecution of such proceeding.
14. Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
15. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, 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.
16. Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[registration
rights agreement signature page follows]
9
[registration
rights agreement signature page]
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
written above.
|
DRTATTOFF,
LLC
|
PURCHASER:
|
||||
|
By:
|
By:
|
||||
|
Xxxxx
Xxxxx, CEO
|
Address:
|
||||
