REGISTRATION RIGHTS AGREEMENT
Exhibit 99.4
This Registration Rights Agreement (this “Agreement”) is made and entered into as of January 8, 2007, by and among ProLink Holdings Corp., a Delaware corporation (the “Company”), and the
investors signatory hereto (each a “Investor” and collectively, the “Investors”).
This Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date
hereof among the Company and the Investors (the “Purchase Agreement”).
The Company and the Investors hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that are
defined in the Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the respective meanings set
forth in this Section 1:
“Common Stock” means the Common Stock, par value $0.0001 per share, of the Company.
“Effective Date” means the date that the Registration Statement filed pursuant to Section
2(a), 2(b) or 2(c) is first declared effective by the Commission.
“Effectiveness Date” means: (a) with respect to the initial Registration Statement required to
be filed to cover the resale by the Holders of the Registrable Securities, the earlier of: (a)(i)
the 120th day following the Closing; provided, that, if the Commission reviews and has
written comments to the filed Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the Effectiveness Date under this clause
(a)(i) shall be the 150th day following the Closing, and (ii) the fifth Trading Day
following the date on which the Company is notified by the Commission that the initial Registration
Statement will not be reviewed or is no longer subject to further review and comments, and (b) with
respect to any additional Registration Statements that may be required pursuant to Section 2(b) or
2(c) hereof, the earlier of: (i) the 90th day following the date on which the Company first knows,
or reasonably should have known, that such additional Registration Statement is required under such
Section; provided, that, if the Commission reviews and has written comments to such filed
Registration Statement that would require the filing of a pre-effective amendment thereto with the
Commission, then the Effectiveness Date under this clause (b)(i) shall be the 120th day
following the date that the Company first knows, or reasonably should have known, that such
additional Registration Statement is required under such Section and (ii) the fifth Trading Day
following the date on which the Company is notified by the Commission that such additional
Registration Statement will not be reviewed or is no longer subject to further review and comments.
“Effectiveness Period” shall have the meaning set forth in Section 2(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Filing Date” means (a) with respect to the initial Registration Statement required to be
filed to cover the resale by the Holders of the Registrable Securities, the earlier of (i) the date
the Company files its Form 10-K with the SEC and (ii) the 30th day following the Closing Date.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Losses” shall have the meaning set forth in Section 5(a).
“Preferred Shares” means the shares of Preferred Stock issued or issuable to the Investors
pursuant to the Purchase Agreement.
“Preferred Stock” means the Preferred Stock, par value $0.001 per share, of the Company.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by 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 Common Stock issued or issuable upon conversion of the
Preferred Shares and the Warrant Shares (and any additional securities issued in connection with a
stock dividend or stock split thereof or in connection with any recapitalization, merger,
consolidation or reorganization).
“Registration Statement” means the initial registration statement required to be filed in
accordance with Section 2(a) and any additional registration statement(s) required to be filed
under Section 2(b) or 2(c), including (in each case) the Prospectus, amendments and supplements to
such registration statements or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference or deemed to be incorporated by
reference in such registration statements.
“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.
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“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended.
“Warrants” means the warrants issued or issuable to the Investors pursuant to the Purchase
Agreement.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants.
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 not already covered by an
existing and effective Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415. The Registration Statement shall contain (except if otherwise required
pursuant to written comments received from the Commission upon a review of such Registration
Statement) the “Plan of Distribution” attached hereto as Annex A. The Company shall cause the
Registration Statement to be declared effective under the Securities Act as soon as possible but,
in any event, no later than the Effectiveness Date, and shall use its best efforts to keep the
Registration Statement effective under the Securities Act until the date on which the Holders are
able to resell all of their respective Registrable Securities without volume restrictions pursuant
to Rule 144(k) promulgated under the Securities Act (the “Effectiveness Period”).
(b) If for any reason the Commission does not permit all of the Registrable Securities to be
included in the Registration Statement filed pursuant to Section 2(a), or for any other reason any
Registrable Securities are not permitted by the Commission to be included in a Registration
Statement filed under this Agreement, then the Company shall prepare and file as soon as possible
after the date on which the Commission shall indicate as being the first date or time that such
filing may be made, an additional Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration Statement for an offering
to be made on a continuous basis pursuant to Rule 415. Each such Registration Statement shall
contain (except if otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the “Plan of Distribution” attached hereto as Annex
A. The Company shall cause each such Registration Statement to be declared effective under the
Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and
shall use its best efforts to keep such Registration Statement effective under the Securities Act
during the entire Effectiveness Period.
(c) If at any time during the Effectiveness Period, less than 95% of the then Registrable
Securities are then registered in a Registration Statement(s), then the Company shall
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file as soon as reasonably practicable, but in any case prior to the applicable Filing Date
subject to any restrictions imposed by Rule 415, an additional Registration Statement covering the
resale by the Holders of not less than 100% of the number of then Registrable Securities.
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date, (ii) a
Registration Statement is not declared effective by the Commission on or prior to its required
Effectiveness Date, or (iii) after its Effective Date, (A) as a result of the occurrence of a
Company Event (as defined below), such Registration Statement ceases 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 up to no more than 30 consecutive Trading Days
(or 45 Trading Days in any 12 month period in the aggregate) or (B) such Registration Statement
ceases 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 any reason
other than a Company Event (as defined below) (any such failure or breach being referred to as an
“Event,” and for purposes of clauses (i), (ii), or (iii)(B) the date on which such Event occurs, or
for purposes of clause (iii)(A) the date on which such 30 consecutive Trading Day-period or 45
Trading Day-period, as applicable, is exceeded, being referred to as “Event Date”), then, in
addition to any other rights available to the Holders under this Agreement or under applicable law:
(x) on each such Event Date the Company shall pay to each Holder an amount in cash, as liquidated
damages and not as a penalty, equal to 1% of the aggregate Purchase Price of such Holder pursuant
to the Purchase Agreement; and (y) on each 30-day 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 liquidated damages and not as a penalty,
equal to 1% of the aggregate Purchase Price paid by such Holder pursuant to the Purchase Agreement.
The 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. “Company Event” as used herein means the
existence of material non-public information regarding the Company which the Board of Directors of
the Company reasonably determines not to be in the best interests of the Company to disclose,
including a significant business opportunity (including, but limited to, the acquisition or
disposition of assets (other than in the ordinary course of business) or any merger, consolidation,
tender offer or similar transaction) available to the Company, but which would be required to be
disclosed in a Registration Statement. Notwithstanding anything to the contrary contained herein,
if an Event pursuant to clauses (i), (ii) or (iii) hereof occurs due to the consummation or the
proposed consummation by the Company of an acquisition, the Company shall not be required to pay
any liquidated damages required hereunder.
(e) Notwithstanding anything to the contrary contained in this Agreement, in the event the
Commission determines any Registration Statement filed pursuant to this Agreement (i) constitutes a
primary offering of securities by the Company or (ii) requires any Holder to be named as an
underwriter and such Holder does not consent to being so named as an underwriter in such
Registration Statement, the Company may reduce, on a pro rata basis, the total number of
Registrable Securities to be registered on behalf of each such Holder, and the failure to include
such Registrable Securities in any Registration Statement shall not cause the Company to be
required to pay any penalty, financial or otherwise, as described in this Agreement, including
without limitation any liquidated damages as set forth in Section 2(d) hereof. The pro rata
adjustment will first reduce all Registrable Securities other than those
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issued pursuant to the Purchase Agreement and those issued in the Company’s offering of $4.5
million in senior secured notes due April 2007. In the event of any such reduction in Registrable
Securities, the affected Holders shall have the right to require, upon delivery of a written
request to the Company signed by the Holders of at least a majority of the Registrable Securities
then outstanding, the Company to file a registration statement within 90 days of such request
subject to any restrictions imposed by Rule 415, until such time as: (i) all Registrable Securities
have been registered pursuant to an effective Registration Statement, (ii) the Registrable
Securities may be resold without restriction (including volume limitations) pursuant to Rule 144(k)
of the Securities Act or (iii) the Holder agrees to be named as an underwriter in any such
Registration Statement.
3. Registration Procedures
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than four Trading Days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company shall furnish to the Holders
copies of the “Selling Stockholders” section of such document, the “Plan of Distribution” and any
risk factor contained in such document that addresses specifically this transaction or the Selling
Stockholders, as proposed to be filed which documents will be subject to the review of such
Holders. The Company shall not file a Registration Statement or any such Prospectus or any
amendments or supplements thereto that does not contain the disclosure containing such Holder as a
“Selling Stockholder” as provided to the Company by such Holder in connection therewith.
(b) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement continuously effective as to the applicable
Registrable Securities for its Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale under the Securities Act all of
the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424;
(iii) respond as promptly as reasonably possible to any comments received from the Commission with
respect to each Registration Statement or any amendment thereto and, as promptly as reasonably
possible provide the Holders true and complete copies of all correspondence from and to the
Commission relating to such Registration Statement that would not result in the disclosure to the
Holders of material and non-public information concerning the Company; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange Act with respect to
the Registration Statements and the disposition of all Registrable Securities covered by each
Registration Statement.
(c) Notify the Holders as promptly as reasonably possible (and, in the case of (i)(A) below,
not less than three Trading Days prior to such filing) and (if requested by any such Person)
confirm such notice in writing no later than one Trading Day following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to a Registration
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Statement is proposed to be filed; (B) when the Commission notifies the Company whether there
will be a “review” of such Registration Statement and whenever the Commission comments in writing
on such Registration Statement (the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders that pertain to the Holders as a Selling
Stockholder or to the Plan of Distribution, but not information which the Company believes would
constitute material and non-public information); and (C) with respect to each Registration
Statement or any post-effective amendment, when the same has become effective; (ii) of any request
by the Commission or any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for
such purpose; and (v) of the occurrence of any event or passage of time that makes the financial
statements included in a 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 the Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading.
(d) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i)
any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing of such documents with the
Commission.
(f) Promptly deliver to each Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such
Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment or supplement
thereto.
(g) Prior to any public offering of Registrable Securities, to register or qualify or
cooperate with the selling Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of all jurisdictions within the United States, to keep
each such registration or qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things necessary or advisable to enable
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the disposition in such jurisdictions of the Registrable Securities covered by the
Registration Statements.
(h) Cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee pursuant to the
Registration Statements, which certificates shall be free, to the extent permitted by the Purchase
Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to
the affected Registration Statements or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(j) Each Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex B (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) hereof to such
Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least
one Trading Day prior to the Filing Date (subject to the requirements set forth in Section 3(a)).
4. Registration Expenses. All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect to filings required
to be made with any Trading Market on which the Common Stock is then listed for trading, and (B) in
compliance with applicable state securities or Blue Sky laws), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities and of printing
prospectuses if the printing of prospectuses is reasonably requested by the holders of a majority
of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance, and (vi) fees and disbursements of
counsel for the Company and up to $20,000 for fees and disbursements of Lead Investor Counsel
(“Lead Investor Counsel” means [INVESTOR COUNSEL]), and (vii) fees and expenses of all other
Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible for all of its
internal expenses incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual audit and the fees and
expenses incurred in connection with the listing of the Registrable Securities on any securities
exchange as required hereunder.
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5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors,
agents, investment advisors, partners, members and employees of each of them, each Person who
controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any and all losses,
claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation
and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of
or relating to any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent, but only to the
extent, that (1) such untrue statements or omissions are based solely upon information regarding
such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed method of
distribution of Registrable Securities and was reviewed and expressly approved in writing by such
Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus
or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A
hereto for this purpose) or (2) in the case of an occurrence of an event of the type specified in
Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the
Company has notified such Holder in writing that the Prospectus is outdated or defective and prior
to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if
and to the extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been corrected. The
Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding
of which the Company is aware in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of
the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising
solely out of or based solely upon: (x) such Holder’s failure to comply with the prospectus
delivery requirements of the Securities Act or (y) any untrue statement of a material fact
contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements therein not
misleading to the extent, but only to the extent that, (1) such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, or to the extent that such information relates to such Holder or
such Holder’s proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by such Holder
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expressly for use in the Registration Statement (it being understood that the Holder has
approved Annex A hereto for this purpose), such Prospectus or such form of Prospectus or in any
amendment or supplement thereto or (2) in the case of an occurrence of an event of the type
specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus
after the Company has notified such Holder in writing that the Prospectus is outdated or defective
and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but
only if and to the extent that following the receipt of the Advice or the amended or supplemented
Prospectus the misstatement or omission giving rise to such Loss would have been corrected. In no
event shall the liability of any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations
or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be unreasonably withheld.
No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such Proceeding in a manner
not inconsistent with this Section) shall be paid to the Indemnified Party,
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as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party
(regardless of whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party
to undertake to reimburse all such fees and expenses to the extent it is finally judicially
determined that such Indemnified Party is not entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in
connection with the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or omission or
alleged omission of a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided for in this Section
was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually
received by such Holder from the sale of the Registrable Securities subject to the Proceeding
exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.
6. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by a Holder, of any of their
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. The
Company and each Holder agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for
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specific performance in respect of such breach, it shall waive the defense that a remedy at
law would be adequate.
(b) No Piggyback on Registrations. Except as and to the extent specified in
Schedule 6(b) hereto, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company in a Registration
Statement other than the Registrable Securities, and the Company shall not after the date hereof
enter into any agreement providing any such right to any of its security holders. Except as and to
the extent specified in Schedule 3.1(u) of the Purchase Agreement, the Company has not
previously entered into any agreement granting any registration rights with respect to any of its
securities to any Person which have not been fully satisfied.
(c) Compliance. Each Holder covenants and agrees that it will comply with any
prospectus delivery requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any
event of the kind described in clauses (ii) through (v) of Section 3(c), such Holder will forthwith
discontinue disposition of such Registrable Securities under the 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.
(e) Amendments and Waivers. No provision of this Agreement may be waived or amended
except in a written instrument signed by the Company and the Holders of no less than a majority of
the outstanding Registrable Securities. No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future
or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of either party to exercise any right hereunder in any
manner impair the exercise of any such right.
(f) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (i) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to 6:30 p.m. (New York
City time) on a Trading Day, (ii) the Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number specified in this
Agreement later than 6:30 p.m. (New York City time) on any date and earlier than 11:59 p.m. (New
York City time) on such date, (iii) the Trading Day following the date of mailing, if sent by
nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as
follows:
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If to the Company:
|
ProLink Holdings Corp.
000 Xxxxx Xxxxxx Xx. Xxxxxxxx, XX 00000 Facsimile No.: 000-000-0000 Attn: Xxxx X. Xxxxx |
|
With a copy to:
|
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C.
000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Facsimile No.: 212-983-3115 Attn: Xxxxxxx Xxxx, Esq. |
|
If to a Investor:
|
To the address set forth under such Investor’s name on the signature pages hereto. | |
| 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 | ||
or such other address as may be designated in writing hereafter, in the same manner, by such
Person.
(g) 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 each Holder. 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 Purchase Agreement.
(h) Execution and 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.
(i) 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 New York, 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, employees or agents) may be commenced non-exclusively in the
state and federal courts sitting in the City of New York, Borough of Manhattan, (the “New York
Courts”). Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the
New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or
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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 New York Court, or that such
Proceeding has been commenced in an improper or inconvenient forum. 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. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any Proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. If either 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 attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such Proceeding.
(j) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(k) 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.
(l) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(m) Independent Nature of Investors’ Obligations and Rights. The obligations of each
Investor hereunder is several and not joint with the obligations of any other Investor hereunder,
and no Investor shall be responsible in any way for the performance of the obligations of any other
Investor hereunder. The decision of each Investor to acquire Registrable Securities pursuant to
the Transaction Documents has been made independently of any other Investor. Nothing contained
herein or in any other agreement or document delivered at any closing, and no action taken by any
Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Investor acknowledges that no other Investor has acted as
agent for such Investor in connection with making its investment hereunder and that no Investor
will be acting as agent of such Investor in connection with monitoring its investment in the
Securities or enforcing its rights under the Transaction Documents. Each Investor shall be
entitled to protect and enforce its rights, including without limitation the rights
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arising out of this Agreement, and it shall not be necessary for any other Investor to be
joined as an additional party in any Proceeding for such purpose.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| PROLINK HOLDINGS CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTOR TO FOLLOW]
SIGNATURE PAGES OF INVESTOR TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| [INVESTOR] | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
| Address for Notice: | ||||||||||
| Facsimile No.: | ||||||||||
| Attn: | ||||||||||
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Annex A
Plan of Distribution
The selling stockholders may, from time to time, sell any or all of their shares of common
stock on any stock exchange, market or trading facility on which the shares are traded or in
private transactions.
These sales may be at fixed or negotiated prices. The selling stockholders may use any one or
more of the following methods when selling shares:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| • | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; | |
| • | an exchange distribution in accordance with the rules of the applicable exchange; | |
| • | privately negotiated transactions; | |
| • | short sales; | |
| • | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; | |
| • | a combination of any such methods of sale; and | |
| • | any other method permitted pursuant to applicable law. |
The selling stockholders may also sell shares under Rule 144 under the Securities Act, if
available, rather than under this prospectus.
The selling stockholders may also engage in short sales against the box, puts and calls and
other transactions in our securities or derivatives of our securities and may sell or deliver
shares in connection with these trades.
Broker-dealers engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from the selling
stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions involved. Any profits on
the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be
underwriting discounts or commissions under the Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, attributable to the sale of shares will be borne
by a selling stockholder. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares if liabilities are
imposed on that person under the Securities Act.
The selling stockholders may from time to time pledge or grant a security interest in some or
all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock
from time to time under this prospectus after we have filed an amendment to this
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prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933
amending the list of selling stockholders to include the pledgee, transferee or other successors in
interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares of common stock in other circumstances,
in which case the transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus and may sell the shares of common stock from time
to time under this prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus.
The selling stockholders and any broker-dealers or agents that are involved in selling the
shares of common stock may be deemed to be “underwriters” within the meaning of the Securities Act
in connection with such sales. In such event, any commissions received by such broker-dealers or
agents and any profit on the resale of the shares of common stock purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act.
We are required to pay all fees and expenses incident to the registration of the shares of
common stock. We have agreed to indemnify the selling stockholders against certain losses, claims,
damages and liabilities, including liabilities under the Securities Act.
The selling stockholders have advised us that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding the sale of their
shares of common stock, nor is there an underwriter or coordinating broker acting in connection
with a proposed sale of shares of common stock by any selling stockholder. If we are notified by
any selling stockholder that any material arrangement has been entered into with a broker-dealer
for the sale of shares of common stock, if required, we will file a supplement to this prospectus.
If the selling stockholders use this prospectus for any sale of the shares of common stock, they
will be subject to the prospectus delivery requirements of the Securities Act.
The anti-manipulation rules of Regulation M under the Securities Exchange Act of 1934 may
apply to sales of our common stock and activities of the selling stockholders.
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