REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
This
Registration Rights Agreement (the “Agreement”) is made
and entered into as of this 26th day of July 2019 (the
“Closing Date”) by and among ENDRA Life Sciences Inc.,
a Delaware corporation (the “Company”), the
“Buyers” named in that certain Securities Purchase
Agreement by and among the Company and the Buyers (the
“Purchase Agreement”) and National Securities
Corporation (“NSC”) (together, the Buyers and NSC are
referred to as the “Holders”) . Capitalized terms used
herein have the respective meanings ascribed thereto in the
Purchase Agreement unless otherwise defined herein.
The
parties hereby agree as follows:
1.
Certain
Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
“Common Stock” means the
common stock, $.0001 par value, of the Company.
“Holders” means the
Buyers, together with NSC and any Affiliate or permitted transferee
of NSC who is a subsequent holder of any Registrable
Securities.
“Buyers” means the Buyer
identified in the Purchase Agreement and any Affiliate or permitted
transferee of any Buyer who is a subsequent holder of any
Registrable Securities.
“Placement Agent Warrants”
means the warrants to purchase shares of common stock of the
Company issued to NSC as the Placement Agent under the terms of the
Purchase Agreement and a Placement Agent Agreement, in connection
with the offering of securities under the Purchase
Agreement.
“Prospectus” means (i) any
prospectus (preliminary or final) included in any Registration
Statement, 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 such Registration Statement and
by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated
by reference in such prospectus, and (ii) any “issuer free
writing prospectus” as defined in Rule 433 under the 1933
Act.
“Register,”
“registered” and
“registration” refer to a
registration made by preparing and filing a Registration Statement
or similar document in compliance with the 1933 Act (as defined
below), and the declaration or ordering of effectiveness of such
Registration Statement or document.
“Registrable Securities”
means (i) the shares of Common Stock that are issuable upon the
conversion of the Notes and upon exercise of the Warrants and the
Placement Agent Warrants, and (ii) any other securities issued or
issuable with respect to or in exchange for the Shares, whether by
merger, charter amendment, or otherwise; provided, that, (1) in no
event will any Share acquired upon exercise of the Warrants or
Placement Agent prior to the effectiveness of the Initial
Registration Statement be deemed a Registrable Security and (2) a
security shall cease to be a Registrable Security upon (A) sale
pursuant to a Registration Statement or Rule 144 under the 1933
Act, or (B) such security becoming eligible for sale without
restriction by a Holder pursuant to Rule 144.
“Registration Statement”
means any registration statement of the Company filed under the
1933 Act that covers the resale of any of the Registrable
Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material
incorporated by reference in such Registration
Statement.
“Required Holders” means
the Holders beneficially owning a majority of the then Registrable
Securities.
“SEC” means the U.S.
Securities and Exchange Commission.
“Shares”
means the common stock, $.0001 par value, of the Company that is
issuable upon conversion of the Notes or upon exercise of the
Warrants and the Placement Agent Warrants.
“1933 Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934 Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
2.
Registration.
(a) Registration
Statements.
(i) Initial
Registration Statement. On or
before the 30th
day after the Closing Date of the
offering of Notes and Warrants under the Purchase Agreement and
related Transaction Documents (the “Filing Deadline”),
the Company shall prepare and file with the SEC one Registration
Statement on Form S-3 (or, if Form S-3 is not then available to the
Company, on such form of registration statement as is then
available to effect a registration for resale of the Registrable
Securities) (the “Initial Registration Statement”),
covering the resale of the Registrable Securities. Subject to any
SEC comments, such Registration Statement shall include the plan of
distribution attached hereto as Exhibit
A; provided, however, that no
Holder shall be named as an “underwriter” in the
Registration Statement without the Holder’s prior written
consent, provided, further, any Holder who unreasonably refuses to
be named as an underwriter in the Registration Statement shall be
excluded as a selling shareholder from the Registration Statement.
Such Registration Statement also shall cover, to the extent
allowable under the 1933 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.
Such Registration Statement shall not include any shares of Common
Stock or other securities of the Company for the account of any
other person without the prior written consent of the Required
Holders. The Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section
3(c) to the Holders prior to its filing or other submission. If a
Registration Statement covering the Registrable Securities is not
filed with the SEC on or prior to the Filing Deadline, the Company
will make pro rata payments to each Holder, as liquidated damages
and not as a penalty, in an amount equal to 1.0% of the aggregate
amount invested by the Holder pursuant to the Purchase Agreement
for each 30-day period or pro rata for any portion thereof
following the Filing Deadline for which no Registration Statement
is filed with respect to the Registrable Securities. Such payments
shall constitute the Holders’ exclusive monetary remedy for
such events, but shall not affect the right of the Holders to seek
injunctive relief. Such payments shall be made to each Holder in
cash no later than three (3) Business Days after the end of each
30-day period.
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(b) Expenses.
The Company will pay all expenses associated with effecting the
registration of the Registrable Securities, including filing and
printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities
for sale under applicable state securities laws, listing fees and
the Holders’ other reasonable expenses in connection with the
registration, but excluding discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable
Securities being sold and excluding the fees and disbursements of
counsel to any Holder.
(c) Effectiveness.
(i) The
Company shall use commercially reasonable efforts to have any
Registration Statement declared effective as soon as practicable.
The Company shall notify the Holders by facsimile or e-mail as
promptly as practicable, and in any event, within twenty-four (24)
hours, after any Registration Statement is declared effective and
shall simultaneously provide the Holders with copies of any related
Prospectus to be used in connection with the sale or other
disposition of the securities covered thereby.
(ii) For
not more than forty (40) consecutive days or for a total of not
more than sixty (60) days in any twelve (12) month period, the
Company may suspend the use of any Prospectus included in any
Registration Statement contemplated by this Section in the event
that the Company determines in good faith that such suspension is
necessary to (A) delay the disclosure of material non-public
information concerning the Company, the disclosure of which at the
time is not, in the good faith opinion of the Company, in the best
interests of the Company or (B) amend or supplement the affected
Registration Statement or the related Prospectus so that such
Registration Statement or Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus in light of the
circumstances under which they were made, not misleading (an
“Allowed Delay”); provided, that the Company shall
promptly (a) notify each Holder in writing of the commencement of
an Allowed Delay, but shall not (without the prior written consent
of an Holder) disclose to such Holder any material non-public
information giving rise to an Allowed Delay, (b) advise the Holders
in writing to cease all sales under the Registration Statement
until the end of the Allowed Delay, and (c) use commercially
reasonable efforts to terminate an Allowed Delay as promptly as
practicable.
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(d) Rule
415; Cutback If at any time the
SEC takes the position that the offering of some or all of the
Registrable Securities in a Registration Statement is not eligible
to be made on a delayed or continuous basis under the provisions of
Rule 415 under the 1933 Act or requires any Holder to be named as
an “underwriter”, the Company shall use its commercial
best efforts to persuade the SEC that the offering contemplated by
a Registration Statement is a bona fide secondary offering and not
an offering “by or on behalf of the issuer” as defined
in Rule 415 and that none of the Holders is an
“underwriter”. In the event that, despite the
Company’s commercial best efforts and compliance with the
terms of this Section 2(d), the SEC refuses to alter its position,
the Company shall (i) remove from the Registration Statement such
portion of the Registrable Securities (the “Cut Back
Shares”) and/or (ii) agree to such restrictions and
limitations on the registration and resale of the Registrable
Securities as the SEC may require to assure the Company’s
compliance with the requirements of Rule 415 (collectively, the
“SEC Restrictions”). Any cut-back imposed pursuant to
this Section 2(d) shall be allocated among the Holders on a pro
rata basis, unless the SEC Restrictions otherwise require or
provide or the Holders otherwise agree. Any cut-back imposed
pursuant to a SEC comment shall be applied, first,
to securities of the Company that are registered pursuant to an
agreement subsequent to the date of this Agreement and,
second,
to the Registrable Securities on a pro rata basis taken together.
No liquidated damages shall accrue as to any Cut Back Shares until
such date as the Company is able to effect the registration of such
Cut Back Shares in accordance with any SEC Restrictions (such date,
the “Restriction Termination Date” of such Cut Back
Shares). From and after the Restriction Termination Date applicable
to any Cut Back Shares, all of the provisions of this Section 2
(including the liquidated damages provisions) shall again be
applicable to such Cut Back Shares; provided, however, that (i) the
Filing Deadline for the Registration Statement including such Cut
Back Shares shall be ten (10) Business Days after such Restriction
Termination Date, and (ii) the date by which the Company is
required to obtain effectiveness with respect to such Cut Back
Shares under Section 2(c) shall be the 60th
day immediately after the Restriction
Termination Date.
(e) Right
to Piggyback Registration.
(i) If
at any time following the date of this Agreement that any
Registrable Securities remain outstanding and are not freely
tradable under Rule 144 (A) there is not one or more effective
Registration Statements covering all of the Registrable Securities
and (B) the Company proposes for any reason to register any shares
of Common Stock under the 1933 Act (other than pursuant to a
registration statement on Form S-4 or Form S-8 (or a similar or
successor form) or a shelf registration statement on Form S-3) with
respect to an offering of Common Stock by the Company for its own
account or for the account of any of its stockholders, it shall at
each such time promptly give written notice to the holders of the
Registrable Securities of its intention to do so (but in no event
less than thirty (30) days before the anticipated filing date) and,
to the extent permitted under the provisions of Rule 415 under the
1933 Act, include in such registration all Registrable Securities
with respect to which the Company has received written requests for
inclusion therein within fifteen (15) days after receipt of the
Company’s notice (a “Piggyback
Registration”).
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(ii) Notwithstanding
the foregoing, (A) if such registration involves an underwritten
public offering, the Holders must sell their Registrable Securities
to, if applicable, the underwriter(s) at the same price and subject
to the same underwriting discounts and commissions that apply to
the other securities sold in such offering (it being acknowledged
that the Company shall be responsible for other expenses as set
forth in Section 2(b)) and subject to the Holders entering into
customary underwriting documentation for selling stockholders in an
underwritten public offering, and (B) if, at any time after giving
written notice of its intention to register any Registrable
Securities pursuant to Section 2(e)(i) 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
cause such registration statement to become effective under the
1933 Act, the Company shall deliver written notice to the Holders
and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration;
provided, however, that nothing contained in this Section 2(e)(ii)
shall limit the Company’s liabilities and/or obligations
under this Agreement, including, without limitation, the obligation
to pay liquidated damages under this Section 2.
3.
Company
Obligations. The Company will
use commercially reasonable efforts to effect the registration of
the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as
possible:
(a) use
commercially reasonable efforts to cause such Registration
Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the date
on which all Registrable Securities covered by such Registration
Statement as amended from time to time, have been sold, or (ii) the
date on which all Registrable Securities covered by such
Registration Statement may be sold without restriction pursuant to
Rule 144 (the “Effectiveness Period”) and advise a
Holder in writing when the Effectiveness Period has expired as to
their respective Registrable Securities;
(b) prepare
and file with the SEC such amendments and post-effective amendments
to the Registration Statement and the Prospectus as may be
necessary to keep the Registration Statement effective for the
Effectiveness Period and to comply with the provisions of the 1933
Act and the 1934 Act with respect to the distribution of all of the
Registrable Securities covered thereby;
(c) provide
copies to the Holders to review each Registration Statement and all
amendments and supplements thereto no fewer than seven (7) days
prior to their filing with the SEC and not file any document to
which the Holder reasonably objects;
(d) use
commercially reasonable efforts to (i) prevent the issuance of any
stop order or other suspension of effectiveness and, (ii) if such
order is issued, obtain the withdrawal of any such order at the
earliest possible moment;
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(e) prior to any public offering of Registrable
Securities, if the Common Stock is not traded on a national
securities exchange (as defined by the SEC) use commercially
reasonable efforts to register or qualify or cooperate with the
Holders in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities
or blue sky laws of such U.S. jurisdictions requested by the
Holders and do any and all other commercially reasonable acts or
things necessary or advisable to enable the distribution in such
U.S. jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (i)
qualify to do business in any U.S. jurisdiction where it would not
otherwise be required to qualify but for this Section 3(f), (ii)
subject itself to general taxation in any jurisdiction where it
would not otherwise be so subject but for this Section 3(f), or
(iii) file a general consent to service of process in any such
jurisdiction;
(f) use
commercially reasonable efforts to cause all Registrable Securities
covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then
listed;
(g) immediately
notify the Holders, at any time prior to the end of the
Effectiveness Period, upon discovery that, or upon the happening of
any event as a result of which, the Prospectus includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and promptly prepare, file with the SEC and furnish to such holder
a supplement to or an amendment of such Prospectus as may be
necessary so that such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing;
(h) otherwise
use commercially reasonable efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934
Act, including, without limitation, Rule 172 under the 1933 Act,
file any final Prospectus, including any supplement or amendment
thereof, with the SEC pursuant to Rule 424 under the 1933 Act,
promptly inform the Holders in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Holders are
required to deliver a Prospectus in connection with any disposition
of Registrable Securities and take such other actions as may be
reasonably necessary to facilitate the registration of the
Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later
than the Availability Date (as defined below), an earnings
statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement,
which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act, including Rule 158 promulgated thereunder
(for the purpose of this subsection 3(i), “Availability
Date” means the 45th day following the end of the fourth
fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter
is the last quarter of the Company’s fiscal year,
“Availability Date” means the 90th day after the end of
such fourth fiscal quarter); and
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(i) With
a view to making available to the Holders the benefits of Rule 144
(or its successor rule) and any other rule or regulation of the SEC
that may at any time permit the Holders to sell shares of Common
Stock to the public without registration, the Company covenants and
agrees to: (i) make and keep public information available, as those
terms are understood and defined in Rule 144, until such date as
all of the Registrable Securities shall have been resold pursuant
to a Registration Statement, Rule 144 or otherwise in a transaction
in which the transferee receives freely tradable shares; (ii) file
with the SEC in a timely manner all reports and other documents
required of the Company under the 1934 Act; and (iii) furnish to
each Holder upon request, as long as such Holder owns any
Registrable Securities, (A) a written statement by the Company that
it has complied with the reporting requirements of the 1934 Act,
(B) a copy of the Company’s most recent Annual Report on Form
10-K or Quarterly Report on Form 10-Q, and (C) such other
information as may be reasonably requested in order to avail the
Holder of any rule or regulation of the SEC that permits the
selling of any such Registrable Securities without registration. In
the event that the Company fails to comply with the requirements of
this Section 3(i) after the 90th day after the Closing Date, the
Company will make pro rata payments to each Holder, as liquidated
damages and not as a penalty, in an amount equal to 1.0% of the
aggregate amount invested by the Holder pursuant to the Purchase
Agreement for each 30-day period or pro rata for any portion
thereof until such failure is cured; provided, however, that such
liquidated damages shall be payable only to a Holder only to the
extent the Holder continues to hold Registrable Securities prior to
such failure. Such payments shall constitute the Holders’
exclusive monetary remedy for such events, but shall not affect the
right of the Holders to seek injunctive relief. Such payments shall
be made to each Holder in cash no later than three (3) Business
Days after the end of each 30-day period.
4.
Obligations of the
Holders.
(a) Each
Holder shall furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of the Registrable Securities held
by it if substantially different from Exhibit
A, 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. At least five
(5) Business Days prior to the first anticipated filing date of any
Registration Statement, the Company shall notify each Holder of the
information the Company requires from the Holder if it elects to
have any of its Registrable Securities included in the Registration
Statement which such notice may be provided through NSC as
Placement Agent. A Holder shall provide the information to the
Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if the
Holder elects to have any of the Registrable Securities included in
the Registration Statement. In the event that a Holder does not
provide such information on a timely basis, the Company shall
provide prompt written notice to the Holder that the Registrable
Securities attributable to that Holder will be excluded from the
Registration Statement unless the Holder provides the required
information within one (1) Business Day after its receipt of such
notice. If the Holder does not provide the required information to
the Company by the end of the next Business Day after its receipt
of such notice, the Company shall have the right to exclude the
Registrable Securities attributable to that Holder from the
Registration Statement and the Holder shall not be entitled to
receive any liquidated damages pursuant to the provisions of this
Agreement with respect to such Registration Statement.
Notwithstanding anything in this Agreement to the contrary, any
Holder that elects not to have any of its Registrable Securities
included in the Registration Statement, shall not be entitled to
receive any liquidated damages pursuant to the provisions of this
Agreement with respect to such Registration
Statement.
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(b) Each
Holder, by its acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of a Registration
Statement hereunder, unless the Holder has notified the Company in
writing of its election to exclude all of its Registrable
Securities from such Registration Statement.
(c) Each
Holder agrees that, upon receipt of any notice from the Company of
either (i) the commencement of an Allowed Delay pursuant to Section
2(c)(ii) or (ii) the happening of an event pursuant to Section 3(h)
hereof, the Holder will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities, until the Holder is advised
by the Company that such dispositions may again be
made.
5.
Indemnification.
(a) Indemnification
by the Company. The Company
will indemnify and hold harmless each Holder, including without
limitation NSC and its respective officers, directors, members,
managers, partners, trustees, employees and agents and other
representatives, successors and assigns, and each other person, if
any, who controls such Holder within the meaning of the 1933 Act,
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the 1933 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 or omission or
alleged omission of any material fact contained in any Registration
Statement, any Prospectus, or any amendment or supplement thereof;
(ii) any blue sky application or other document executed by the
Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable
Securities under the securities laws thereof (any such application,
document or information herein called a “Blue Sky
Application”); (iii) the omission or alleged omission to
state in a Blue Sky Application a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (iv) any violation by the Company or its agents of any
rule or regulation promulgated under the 1933 Act applicable to the
Company or its agents and relating to action or inaction required
of the Company in connection with such registration; or (v) any
failure to register or qualify the Registrable Securities included
in any such Registration Statement in any state where the Company
or its agents has affirmatively undertaken or agreed in writing
that the Company will undertake such registration or qualification
on a Holder’s behalf and will reimburse such Holder, and each
such officer, director, shareholder or member and each such
controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
however,
that the Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished by the Holder or any such controlling person in writing
specifically for use in such Registration Statement or
Prospectus.
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(b) Indemnification
by the Holders. Each Holder
agrees, severally but not jointly, to indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors,
officers, employees, stockholders and each person who controls the
Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages, liabilities and expense (including reasonable
attorney fees) resulting from any untrue statement of a material
fact or any omission of a material fact required to be stated in
the Registration Statement or Prospectus or amendment or supplement
thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing by
the Holder to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of a Holder be greater in
amount than the dollar amount of the proceeds (net of all expenses
paid by the Holder in connection with any claim relating to this
Section 5 and the amount of any damages the Holder has otherwise
been required to pay by reason of such untrue statement or
omission) received by the Holder upon the sale of the Registrable
Securities included in the Registration Statement giving rise to
such indemnification obligation.
(c) Conduct
of Indemnification Proceedings.
Any person entitled to indemnification hereunder shall (i) give
prompt notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided
that any person entitled to
indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such
person unless (a) the indemnifying party has agreed to pay such
fees or expenses, or (b) the indemnifying party shall have failed
to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of
any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the
indemnifying party with respect to such claims (in which case, if
the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such person);
and provided,
further,
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying
party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time
for all such indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement that does not include
as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation. The indemnifying party
shall not be liable hereunder for any settlements entered into by
an indemnified party without the indemnifying party’s prior
written consent, which shall not be unreasonably withheld,
conditioned or delayed.
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(d) Contribution.
If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all expenses
paid by such holder in connection with any claim relating to this
Section 5 and the amount of any damages such holder has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the
sale of the Registrable Securities giving rise to such contribution
obligation.
6.
Miscellaneous.
(a) Amendments
and Waivers. Any term of this
Agreement may be amended and the observance of any term of this
Agreement 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 Required
Holders.
(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section13.1 of the Purchase
Agreement.
(c) Maximum
Liquidated Damages. The maximum
amount of liquidated damages due to a Holder will be 20% of the
aggregate amount invested by the Holder pursuant to the Purchase
Agreement.
(d) Assignments
and Transfers by Holders. The
provisions of this Agreement shall be binding upon and inure to the
benefit of the Holders and their respective successors and assigns.
A Holder may transfer or assign, in whole or from time to time in
part, to one or more persons its rights hereunder in connection
with the transfer of Registrable Securities by the Holder to such
person, provided that the Holder complies with all laws applicable
thereto and provides written notice of assignment to the Company
promptly after such assignment is effected.
(e) Assignments
and Transfers by the Company.
This Agreement may not be assigned by the Company (whether by
operation of law or otherwise) without the prior written consent of
the Required Holders; provided,
however, that in the event that
the Company is a party to a merger, consolidation, share exchange
or similar business combination transaction in which the Common
Stock is converted into the equity securities of another Person,
from and after the effective time of such transaction, such Person
shall, by virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder, the term
“Company” shall be deemed to refer to such Person and
the term “Registrable Securities” shall be deemed to
include the securities received by the Holders in connection with
such transaction unless such securities are otherwise freely
tradable by the Holders after giving effect to such
transaction.
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(f) Benefits
of the Agreement. The terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(g) Counterparts;
Faxes. This Agreement may be
executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the
same instrument. This Agreement may be delivered via facsimile or
other form of electronic communication, which shall be deemed an
original.
(h) Titles
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(i) Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the
maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any
respect.
(j) Further
Assurances. The parties shall
execute and deliver all such further instruments and documents and
take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the
fulfillment of the agreements herein contained.
(k) Entire
Agreement. This Agreement is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
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(l) Governing
Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be
construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and
performance of this Agreement shall be governed by, the internal
laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
The City of New York, Borough of Manhattan, 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. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. In the event that any
provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be
deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of
any other provision of this Agreement. Nothing contained herein
shall be deemed or operate to preclude the Holder from bringing
suit or taking other legal action against the Company in any other
jurisdiction to collect on the Company’s obligations to the
Holder, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in
favor of the Holder. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION
CONTEMPLATED HEREBY.
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IN
WITNESS WHEREOF, the parties have executed this Agreement or caused
their duly authorized officers to execute this Agreement as of the
date first above written.
The
Company:
By:_________________________
Xxxxxxxx
Xxxxxxxx
President and
CEO
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_________________________________
(Name
of Holder)
By:_______________________________
Name:
Title:
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NATIONAL SECURITES
CORPORATION
By:_______________________________
Name:
Xxxxxxxx X. Xxxx
Title:
EVP – Head of Investment Banking
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