REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT (this "Agreement"), dated as of
September 21, 2007, by and between KMA GLOBAL SOLUTIONS INTERNATIONAL,
INC. a Nevada corporation, (the "Company"), and the
purchasers identified on the signature page hereto (each a
“Buyer” and collectively, the “Buyers”), and
Incendia Management Group Inc., a Canadian corporation (the
“Agent”). Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth in
the
Securities Purchase Agreement by and between the parties hereto dated as
of
September 21, 2007 (as amended, restated, supplemented or otherwise modified
from time to time, the "Purchase Agreement").
WHEREAS:
A. The
Company has agreed, upon the terms and subject to the conditions of the Purchase
Agreement, to issue and sell to the Buyers Securities of the Company and
additionally issue Securities of the Company to the Agent in consideration
for
services rendered in connection with the sale and purchase of Securities;
and
B. In
connection with the Purchase Agreement, the Company has issued to the Buyers
(i)
Eight Million (8,000,000) shares of its Common Stock (the “Commitment Shares”),
and (ii) common stock purchase warrants (the “Warrants”) granting the Buyers the
right to purchase from the Company an aggregate of Eight Million (8,000,000)
shares of Common Stock (the “Warrant Shares”) at an exercise price of $0.30,
exercisable only within (2) years of the Effective Date of the Registration
Statement ; and
C. Additionally,
in connection with the Purchase Agreement, the Company has issued to the
Buyers’
Agent (i) One Million Four Hundred Thousand (1,400,000) shares of its Common
Stock, together with (ii) Warrants to purchase One Million Four Hundred Thousand
(1,400,000) Warrant Shares at an exercise price of $0.30, exercisable only
within (2) years of the Effective Date of the Registration Statement;
and
D. In
connection with the Purchase Agreement, the Company has provided for the
issuance of 1,880,000 shares of Common Stock upon an Event of Default (the
“Default Shares”);
E. To
induce the Buyers to enter into the Purchase Agreement, the Company has agreed
to provide certain registration rights to the Buyers and the Agent under
the
Securities Act of 1933, as amended, and the rules and regulations thereunder,
or
any similar successor statute (collectively, the "Securities
Act"), and applicable state securities laws.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and
the Buyers hereby agree as follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the following
meanings:
a. "Investors"
means the Buyers and shall also include the Agent, and any transferee or
assignee thereof to whom a Buyer or the Agent assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement
in
accordance with Section 9 and any transferee or assignee thereof to whom
a
transferee or assignee assigns its rights under this Agreement and who agrees
to
become bound by the provisions of this Agreement in accordance with Section
9.
b. "Person"
means any person or entity including any corporation, a limited liability
company, an association, a partnership, an organization, a business, an
individual, a governmental or political subdivision thereof or a governmental
agency.
c. "Register,"
"registered," and "registration" refer to a
registration effected by preparing and filing one or more registration
statements of the Company in compliance with the Securities Act and pursuant
to
Rule 415 under the Securities Act or any successor rule providing for offering
securities on a continuous basis ("Rule 415"), and the
declaration or ordering of effectiveness of such registration statement(s)
by
the United States Securities and Exchange Commission (the
"SEC").
d. "Registrable
Securities" means (1) the Fee Shares which have been, or which may from
time to time be, issued or issuable to the Agent under the Purchase Agreement,
and any shares of capital stock issued or issuable with respect to the Fee
Shares or the Purchase Agreement as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, (2) the Warrant
Shares
which have been, or which may, from time to time, be issued or issuable upon
exercise of the Warrant, (3) the Commitment Shares issued to the Investors
(4)
upon an Event of Default, as defined in the Purchase Agreement, the Default
Shares and any shares of capital stock issued or issuable with respect to
the
Commitment Shares or the Purchase Agreement as a result of any stock split,
stock dividend, recapitalization, exchange or similar event or
otherwise.
e. "Registration
Statement" means the registration statement of the Company which the
Company has agreed to file pursuant to Section 5(a) of the Purchase Agreement
with respect to the sale of the Registrable Securities.
2. REGISTRATION.
a. Mandatory
Registration. The Company shall use best efforts to keep the
Registration Statement effective pursuant to Rule 415 promulgated under the
Securities Act and available for sales of all of the Registrable Securities
at
all times until the earlier of (i) the date as of which the Investors may
sell
all of the Registrable Securities without restriction pursuant to Rule 144(k)
promulgated under the Securities Act (or successor thereto) or (ii) the date
on
which the Investors shall have sold all the Registrable Securities under
the
Purchase Agreement (the "Registration Period"). The
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein,
or
necessary to make the statements therein, in light of the circumstances in
which
they were made, not misleading.
b. Rule
424 Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC, pursuant to
Rule
424 promulgated under the Securities Act, the prospectus and prospectus
supplements, if any, to be used in connection with sales of the Registrable
Securities under the Registration Statement. The Investors and their
counsel shall have a reasonable opportunity to review and comment upon such
prospectus prior to its filing with the SEC. The Investors shall use their
reasonable best efforts to comment upon such prospectus within one (1) Trading
Day from the date the Investors receive the final version of such
prospectus.
c. Sufficient
Number of Shares Registered. In the event the number of shares
available under the Registration Statement is insufficient to cover all of
the
Registrable Securities, the Company shall amend the Registration Statement
or
file a new registration statement (a “New Registration
Statement”), so as to cover all of such Registrable Securities as soon
as practicable, but in any event not later than ten (10) Trading Days after
the
necessity therefor arises. The Company shall use it best efforts to
cause such amendment and/or New Registration Statement to become effective
as
soon as practicable following the filing thereof. The Investors
and their counsel shall have a reasonable opportunity to review and comment
upon
any such amendment and/or New Registration Statement prior to its filing
with
the SEC. The Investors shall use their reasonable best efforts to
comment upon any such amendment and/or New Registration Statement within
two (2)
Trading Days from the date the Investors receive the final version of any
such
amendment and/or New Registration Statement.
3. RELATED
OBLIGATIONS.
With
respect to the Registration Statement and whenever any Registrable Securities
are to be registered pursuant to Section 2 including on any New Registration
Statement, the Company shall use its reasonable best efforts to effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof and, pursuant thereto, the Company shall have
the
following obligations:
a. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to any registration statement
and the
prospectus used in connection with such registration statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act,
as may
be necessary to keep the Registration Statement or any New Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities of the Company covered by the
Registration Statement or any New Registration Statement until such time
as all
of such Registrable Securities shall have been disposed of in accordance
with
the intended methods of disposition by the seller or sellers thereof as set
forth in such registration statement.
b. The
Company shall permit the Investors to review and comment upon the Registration
Statement or any New Registration Statement and all amendments and supplements
thereto at least two (2) Trading Days prior to their filing with the SEC,
and
not file any document in a form to which Investors reasonably
object. The Investors shall use their reasonable best efforts to
comment upon the Registration Statement or any New Registration Statement
and
any amendments or supplements thereto within two (2) Trading Days from the
date
all the Investors receive the final version thereof. The Company
shall furnish to the Investors, without charge any correspondence from the
SEC
or the staff of the SEC to the Company or its representatives relating to
the
Registration Statement or any New Registration Statement.
c. The
Company shall furnish to the Investors, (i) promptly after the same is prepared
and filed with the SEC, at least one copy of such registration statement
and any
amendment(s) thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits, (ii) upon the
effectiveness of any registration statement, at least one copy of the prospectus
included in such registration statement and all amendments and supplements
thereto (or such other number of copies as the Investors may reasonably request)
and (iii) such other documents, including copies of any preliminary or final
prospectus, as the Investors may reasonably request from time to time in
order
to facilitate the disposition of the Registrable Securities owned by the
Investors.
d. The
Company shall use reasonable best efforts to (i) register and qualify the
Registrable Securities covered by a registration statement under such other
securities or "blue sky" laws of such jurisdictions in the United States
as the
Investors reasonably request, (ii) prepare and file in those jurisdictions,
such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall
not be
required in connection therewith or as a condition thereto to (x) qualify
to do
business in any jurisdiction where it would not otherwise be required to
qualify
but for this Section 3(d), (y) subject itself to general taxation in any
such
jurisdiction, or (z) file a general consent to service of process in any
such
jurisdiction. The Company shall promptly notify the Investors who
holds Registrable Securities of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any
of
the Registrable Securities for sale under the securities or "blue sky" laws
of
any jurisdiction in the United States or its receipt of actual notice of
the
initiation or threatening of any proceeding for such purpose.
e. As
promptly as practicable after becoming aware of such event or facts, the
Company
shall notify the Investors in writing of the happening of any event or existence
of such facts as a result of which the prospectus included in any registration
statement, as then in effect, includes an untrue statement of a material
fact or
omits to state a material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading, and promptly prepare a supplement or amendment to such
registration statement to correct such untrue statement or omission, and
deliver
at least one copy of such supplement or amendment to the Investors (or such
other number of copies as the Investors may reasonably request). The
Company shall also promptly notify the Investors in writing (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a registration statement or any post-effective amendment
has
become effective (notification of such effectiveness shall be delivered to
the
Investors by facsimile on the same day of such effectiveness and by overnight
mail), (ii) of any request by the SEC for amendments or supplements to any
registration statement or related prospectus or related information, and
(iii)
of the Company's reasonable determination that a post-effective amendment
to a
registration statement would be appropriate.
f. The
Company shall use its reasonable best efforts to prevent the issuance of
any
stop order or other suspension of effectiveness of any registration statement,
or the suspension of the qualification of any Registrable Securities for
sale in
any jurisdiction and, if such an order or suspension is issued, to obtain
the
withdrawal of such order or suspension at the earliest possible moment and
to
notify the Investors of the issuance of such order and the resolution thereof
or
its receipt of actual notice of the initiation or threat of any proceeding
for
such purpose.
g. The
Company shall (i) cause all the Registrable Securities to be listed on each
securities exchange or trading system on which securities of the same class
or
series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange,
or
(ii) secure designation and quotation of all the Registrable Securities on
the
Principal Market. The Company shall pay all fees and expenses in connection
with
satisfying its obligation under this Section.
h. The
Company shall cooperate with the Investors to facilitate the timely preparation
and delivery of certificates representing the Registrable Securities to be
offered pursuant to any registration statement and enable such certificates
to
be in such denominations or amounts as the Investors may reasonably request
and
registered in such names as the Investors may request.
i. The
Company shall at all times provide a transfer agent and registrar with respect
to its Common Stock.
j. If
reasonably requested by the Investors, the Company shall (i) immediately
incorporate in a prospectus supplement or post-effective amendment such
information as the Investors believe should be included therein relating
to the
sale and distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold,
the
purchase price being paid therefor and any other terms of the offering of
the
Registrable Securities; (ii) make all required filings of such prospectus
supplement or post-effective amendment as soon as notified of the matters
to be
incorporated in such prospectus supplement or post-effective amendment; and
(iii) supplement or make amendments to any registration statement.
k. The
Company shall use its reasonable best efforts to cause the Registrable
Securities covered by any registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.
l. Within
one (1) Trading Day after any registration statement which includes the
Registrable Securities is ordered effective by the SEC, 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 Investors)
confirmation that such registration statement has been declared effective
by the
SEC substantially in the form attached hereto as Exhibit A.
m. The
Company shall take all other reasonable actions reasonably requested by the
Investors to expedite and facilitate disposition by the Investors of Registrable
Securities pursuant to any registration statement.
4. OBLIGATIONS
OF THE INVESTORS.
a. The
Company shall notify the Investors in writing of the information the Company
reasonably requires from the Investors in connection with any registration
statement hereunder. The Investors shall furnish to the Company such information
regarding themselves, the Registrable Securities held by the Investors and
the
intended method of disposition of the Registrable Securities held by it as
shall
be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as
the
Company may reasonably request.
b. The
Investors agree to cooperate with the Company as reasonably requested by
the
Company in connection with the preparation and filing of any registration
statement hereunder.
c. The
Investors agree that, upon receipt of any notice from the Company of the
happening of any event or existence of facts of the kind described in Section
3(f) or the first sentence of 3(e), the Investors will immediately discontinue
disposition of Registrable Securities pursuant to any registration statement(s)
covering such Registrable Securities until receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(f) or the first
sentence of 3(e). Notwithstanding anything to the contrary, the Company shall
cause its transfer agent to promptly deliver shares of Common Stock without
any
restrictive legend in accordance with the terms of the Purchase Agreement
in
connection with any sale of Registrable Securities with respect to which
the
Investors have entered into a contract for sale prior to the Investors’ receipt
of a notice from the Company of the happening of any event of the kind described
in Section 3(f) or the first sentence of 3(e) and for which the Investors
have
not yet settled.
5. EXPENSES
OF REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions and legal
fees
and disbursements of counsel to the Investors, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, and fees and disbursements of counsel
for
the Company, shall be paid by the Company.
6. INDEMNIFICATION
a. To
the fullest extent permitted by law, the Company shall, and hereby does,
indemnify, hold harmless and defend the Investors, each Person, if any, who
controls an Investor, the respective members, directors, officers, partners,
employees, agents, representatives of the Investors and each Person, if any,
who
controls an Investor within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (each, an
"Indemnified Person"), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys' fees,
amounts paid in settlement or expenses, joint or several, (collectively,
"Claims") incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from
the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether
or
not an indemnified party is or may be a party thereto ("Indemnified
Damages"), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact in the Registration Statement, any New
Registration Statement or any post-effective amendment thereto or in any
filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable Securities
are
offered ("Blue Sky Filing"), or the omission or alleged
omission to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading, (ii) any untrue statement or
alleged
untrue statement of a material fact contained in any preliminary prospectus
if
used prior to the effective date of such registration statement, or contained
in
the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or
alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading, (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any other law, including,
without limitation, any state securities law, or any rule or regulation
thereunder relating to the offer or sale of the Registrable Securities pursuant
to the Registration Statement or any New Registration Statement or
(iv) any material violation of this Agreement (the matters in the foregoing
clauses (i) through (iv) being, collectively,
"Violations"). The Company shall, subject to Section
6(d) reimburse each Indemnified Person for any legal fees or other expenses
reasonably incurred by them in connection with investigating or defending
any
such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i)
shall
not apply to a Claim by an Indemnified Person arising out of or based upon
a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person expressly
for use
in connection with the preparation of the Registration Statement, any New
Registration Statement or any such amendment thereof or supplement thereto,
if
such prospectus was timely made available by the Company pursuant to Section
3(c) or Section 3(e); (ii) with respect to any preliminary prospectus, shall
not
inure to the benefit of any Indemnified Person from whom the person asserting
a
Claim purchased the Registrable Securities that are offered for sale by the
preliminary prospectus (or to the benefit of any person controlling such
person)
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected in the prospectus, as then amended or
supplemented, if such prospectus was timely made available by the Company
pursuant to Section 3(c) or Section 3(e), and the Indemnified Person was
promptly advised in writing not to use the incorrect prospectus prior to
the use
giving rise to a violation and such Indemnified Person, notwithstanding such
advice, used it; (iii) shall not be available to the extent such Claim is
based
on a failure of the Investors to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 3(c) or Section 3(e); and (iv)
shall not apply to amounts paid in settlement of any Claim if such settlement
is
effected without the prior written consent of the Company, which consent
shall
not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the
Indemnified Person and shall survive the transfer of the Registrable Securities
by the Investors pursuant to Section 9.
b. In
connection with the Registration Statement or any New Registration Statement,
the Investors shall, and hereby do, indemnify, hold harmless and defend,
to the
same extent and in the same manner as is set forth in Section 6(a), the Company,
each of its directors, each of its officers who signs the Registration Statement
or any New Registration Statement, each Person, if any, who controls the
Company
within the meaning of the Securities Act or the Exchange Act (collectively
and
together with an Indemnified Person, an "Indemnified Party"),
against any Claim or Indemnified Damages to which any of them may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar
as
such Claim or Indemnified Damages arise out of or are based upon any Violation,
in each case to the extent, and only to the extent, that such Violation occurs
in reliance upon and in conformity with written information furnished to
the
Company by the Investors expressly for use in connection with such registration
statement; and, subject to Section 6(d), the Investors will reimburse any
legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Claim; provided, however, that the indemnity agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
the
Investors, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer
of
the Registrable Securities by the Investors pursuant to Section 9.
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to
assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified
Party
shall have the right to retain its own counsel with the fees and expenses
to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of
the
Indemnified Person or Indemnified Party and the indemnifying party would
be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to
the
Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding
effected without its written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment
or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such claim or litigation. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all
rights
of the Indemnified Party or Indemnified Person with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend
such
action.
d. The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as
and
when bills are received or Indemnified Damages are incurred.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
7. CONTRIBUTION.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with
respect
to any amounts for which it would otherwise be liable under Section 6 to
the
fullest extent permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty
of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by
such seller from the sale of such Registrable Securities.
8. REPORTS
AND DISCLOSURE UNDER THE SECURITIES ACT.
With
a
view to making available to the Investors the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the SEC
that
may at any time permit the Investors to sell the Registrable Securities to
the
public without registration ("Rule 144"), the Company agrees
to:
a. make
and keep public information available, as those terms are understood and
defined
in Rule 144;
b. file
with the SEC in a timely manner all reports and other documents required
of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements and the filing of such reports;
and
c. furnish
to the Investors so long as the Investors own Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied
with
any applicable reporting and or disclosure provisions of Rule 144, the
Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or
quarterly report of the Company and such other reports and documents so filed
by
the Company, and (iii) such other information as may be reasonably requested
to
permit the Investors to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT
OF REGISTRATION RIGHTS.
The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investors, including by merger or
consolidation. The Investors may not assign their rights under this
Agreement without the written consent of the Company, other than to an
affiliate.
10. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Investors.
11. MISCELLANEOUS.
a. A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from
two or
more Persons with respect to the same Registrable Securities, the Company
shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally;
(ii) upon receipt, when sent by facsimile (provided confirmation of transmission
is mechanically or electronically generated and kept on file by the sending
party); or (iii) one (1) Trading Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party
to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If
to the
Company:
KMA
Global Solutions International, Inc.
0000X
Xxxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx
X. Xxxx
With
a
copy (which shall not constitute notice) to:
Xxxx
X.
Xxxxx
Baker,
Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, P.C.
Commerce
Center, Suite 1000
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Email: xxxxxx@xxxxxxxxxxxxx.xxx
If
to the
Investors:
Incendia
Management Group Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx
Xxxxxx
or
at
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party three (3) Trading Days prior to the effectiveness of such
change. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the
time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate
as a
waiver thereof.
d. Except
for the corporate laws of the State of Nevada which shall govern all issues
concerning the relative rights of the Company and its stockholders, all
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Nevada,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of Nevada or any other jurisdictions) that would cause
the
application of the laws of any jurisdictions other than the State of
Nevada. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting the City of Las Vegas,
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 suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court,
that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper. Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
to
such party at the address for such 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. If
any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction
or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY
DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT
OR
ANY TRANSACTION CONTEMPLATED HEREBY.
e. This
Agreement and the Purchase Agreement constitute the entire agreement among
the
parties hereto with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Purchase Agreement supersede all
prior agreements and understandings among the parties hereto with respect
to the
subject matter hereof and thereof.
f. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
g. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
h. This
Agreement may be executed in identical counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
j. The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
k. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other Person.
*
* * * * *
IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above
written.
THE
COMPANY:
KMA
GLOBAL SOLUTIONS
INTERNATIONAL,
INC.
By: /s/
Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxx
Chief
Executive
Officer
[signature
of Buyers and Agent on the following page]
BUYERS:
XXXXX
FELLOWSHIP HOLDINGS INC.
GREENOCK
EXPORT HOLDING AG INC.
ADVANCED
VENDING TECHNOLOGIES INC.
V&P
TECHNOLOGIES INC.
NVD
INTERNATIONAL INC.
By: /s/
Xxxxxx
Xxxxxx
Incendia
Management Group Inc., as
authorized
Agent for the Buyers
Per:
Xxxxxx Xxxxxx, A.S.O. of Incendia
Management
Group Inc.
AGENT:
INCENDIA
MANAGEMENT GROUP INC.
By: /s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, A.S.O.
