REGISTRATION RIGHTS AGREEMENT
Exhibit 99.1
This
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made as of
April 29, 2017 by and among ChromaDex Corporation, a corporation
organized and existing under the laws of the State of Delaware (the
“Company”), and the
several purchasers signatory hereto (each, a “Purchaser” and
collectively, the “Purchasers”).
RECITALS
WHEREAS, the
Company and the Purchasers are parties to a Securities Purchase
Agreement, dated as of April 26, 2017 (the “Purchase Agreement”),
pursuant to which the Purchasers are purchasing up to an aggregate
of 9,615,385 shares of Common Stock; and
WHEREAS, in
connection with the consummation of the transactions contemplated
by the Purchase Agreement, and pursuant to the terms of the
Purchase Agreement, the parties desire to enter into this Agreement
in order to grant certain rights to the Purchasers as set forth
below.
NOW,
THEREFORE, in consideration of the covenants and promises set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
AGREEMENT
1.
Certain Definitions. Unless the
context otherwise requires, the following terms, for all purposes
of this Agreement, shall have the meanings specified in this
Section 1.
“Affiliate” has the
meaning set forth in Rule 12b-2 of the rules and regulations
promulgated under the Exchange Act; provided, however, that for purposes of
this Agreement, the Purchasers and their Affiliates, on the one
hand, and the Company and its Affiliates, on the other, shall not
be deemed to be “Affiliates” of one
another.
“Allowed Delay” has the
meaning set forth in Section 2.1(b)(ii).
“Board” means the board of
directors of the Company.
“Business Days” has the
meaning ascribed to such term in the Purchase
Agreement.
“Closing Date” has the
meaning ascribed to such term in the Purchase
Agreement.
“Common Stock” means
shares of the common stock, par value $0.001 per share, of the
Company.
“Effective Date” means the
date that a Registration Statement filed pursuant to Section 2.1(a)
is first declared effective by the SEC.
“Effectiveness Deadline”
means, with respect to each Shelf Registration Statement or New
Registration Statement, the ninetieth (90th) calendar day following
the applicable Closing Date (or, in the event the SEC reviews and
has written comments to the Shelf Registration Statement or the New
Registration Statement, the one hundred twentieth (120th) calendar
day following the applicable Closing Date); provided, however, that
if the Company is notified by the SEC that the Shelf Registration
Statement or the New Registration Statement will not be reviewed or
is no longer subject to further review and comments, the
Effectiveness Deadline as to such Shelf Registration Statement
shall be the fifth (5th) Business Day following the date on which
the Company is so notified if such date precedes the dates
otherwise required above; provided, further, that if the
Effectiveness Deadline falls on a Saturday, Sunday or other day
that the SEC is closed for business, the Effectiveness Deadline
shall be extended to the next Business Day on which the SEC is open
for business.
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“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Filing Deadline” has the
meaning set forth in Section 2.1(a).
“FINRA” means the
Financial Industry Regulatory Authority.
“Form S-3” means such form
under the Securities Act as in effect on the date hereof or any
successor or similar registration form under the Securities Act
subsequently adopted by the Commission that permits inclusion or
incorporation of substantial information by reference to other
documents filed by the Company with the Commission.
“Free Writing Prospectus”
means an issuer free writing prospectus, as defined in Rule 433
under the Securities Act, relating to an offer of Registrable
Securities.
“Holder” means any
Purchaser owning or having the right to acquire Registrable
Securities.
“Liquidated Damages” has
the meaning set forth in Section 2.1(c).
“Nasdaq” has the meaning
ascribed to such term in the Purchase Agreement.
“New Registration
Statement” has the meaning set forth in Section
2.1(a).
“Participating Holder”
means with respect to any registration, any Holder of Registrable
Securities covered by the applicable Registration
Statement.
“Person” has the meaning
ascribed to such term in the Purchase Agreement.
“PIPE Shares” means,
collectively, the Shares.
“Prospectus” means the
prospectus included in any Registration Statement, all amendments
and supplements to such prospectus, including pre- and
post-effective amendments to such Registration Statement, and all
other material incorporated by reference in such
prospectus.
“Register,”
“registered” and
“registration” refer to a
registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration
statement or document.
“Registrable Second Closing
Securities” means the PIPE Shares issued at the First
Closing (as defined in the Purchase Agreement) and, as applicable,
the Second Closing (as defined in the Purchase Agreement) and any
Common Stock issued as (or issuable upon the conversion or exercise
of any warrant, right or other security which is issued as) a
dividend or other distribution with respect to, or in exchange for
or in replacement of, such PIPE Shares. Notwithstanding the
foregoing, PIPE Shares shall cease to be Registrable Securities for
all purposes hereunder upon the earliest to occur of the following:
(A) the sale by any Person of such PIPE Shares to the public either
pursuant to a registration statement under the Securities Act or
under Rule 144 (in which case, only such PIPE Shares sold shall
cease to be Registrable Securities) or (B) such PIPE Shares
becoming eligible for sale by the Holder pursuant to Rule 144
without restriction.
“Registrable Securities”
means, as applicable, the Registrable Second Closing Securities
and/or the Registrable Third Closing Securities.
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“Registrable Third Closing
Securities” means the PIPE Shares issued at the Third
Closing and any Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect
to, or in exchange for or in replacement of, such PIPE Shares.
Notwithstanding the foregoing, PIPE Shares shall cease to be
Registrable Securities for all purposes hereunder upon the earliest
to occur of the following: (A) the sale by any Person of such PIPE
Shares to the public either pursuant to a registration statement
under the Securities Act or under Rule 144 (in which case, only
such PIPE Shares sold shall cease to be Registrable Securities) or
(B) such PIPE Shares becoming eligible for sale by the Holder
pursuant to Rule 144 without restriction.
“Registration Statement”
means any registration statement of the Company that covers
Registrable Securities pursuant to the provisions of this Agreement
filed with, or to be filed with, the SEC under the rules and
regulations promulgated under the Securities Act, including the
related Prospectus, amendments and supplements to such registration
statement, including pre- and post-effective amendments, and all
exhibits and all material incorporated by reference in such
registration statement.
“Registration Expenses”
has the meaning set forth in Section 2.3.
“Remainder Registration
Statements” has the meaning set forth in Section
2.1.
“Rule 144” means Rule 144
as promulgated by the SEC under the Securities Act, as such rule
may be amended from time to time, or any similar successor rule
that may be promulgated by the SEC.
“Rule 145” means Rule 145
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.
“SEC” or
“Commission” means the
Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act.
“SEC Guidance” means (i)
any publicly-available written or oral guidance, comments,
requirements or requests of the Commission staff and (ii) the
Securities Act.
“Securities Act” means the
Securities Act of 1933, as amended, or any similar successor
federal statute and the rules and regulations thereunder, all as
the same shall be in effect from time to time.
“Shares” has the meaning
ascribed to such terms in the Purchase Agreement.
“Shelf Registration
Statement” has the meaning set forth in Section
2.1(a).
“Subsidiaries” means each
corporation, limited liability company, partnership, association,
joint venture or other business entity of which any party or any of
its Affiliates owns, directly or indirectly, more than 50% of the
stock or other equity interest entitled to vote on the election of
the members of the board of directors or similar governing
body.
“Transaction Documents”
means this Agreement and the Purchase Agreement, all exhibits and
schedules thereto and hereto and any other documents or agreement
executed in connection with the transactions contemplated hereunder
or thereunder.
2.
Registration
Rights.
2.1
Shelf
Registration.
(a)
Registration
Statements.
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(i)
First Registration
Statement. On or prior to 15 days following the Second
Closing Date (as defined in the Purchase Agreement), or such
earlier date that is 15 days following the date the Purchasers and
the Company mutually agree in good faith there will be no further
Closings (as defined in the Purchase Agreement) pursuant to the
Purchase Agreement (the “First Filing Deadline”),
the Company shall prepare and file with the SEC a 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
Second Closing Securities) for an offering to be made on a
continuous basis pursuant to Rule 415 under the Securities Act (the
“First Shelf
Registration Statement”). Such First Shelf
Registration Statement shall, subject to the limitations of Form
S-3, include the aggregate amount of Registrable Second Closing
Securities to be registered therein and shall contain (except if
otherwise required pursuant to written comments received from the
Commission upon a review of such First Shelf Registration
Statement) the “Plan of Distribution” in substantially
the form attached hereto as Annex A. To the extent the
staff of the SEC does not permit all of the Registrable Second
Closing Securities to be registered on the First Shelf Registration
Statement filed pursuant to this Section 2.1(a) or for any
other reason any Registrable Second Closing Securities are not then
included in a Registration Statement filed under this Agreement,
the Company shall (i) inform each of the Holders thereof and use
its commercially reasonable efforts to file amendments to the First
Shelf Registration Statement as required by the Commission and/or
(ii) withdraw the First Shelf Registration Statement and file a new
registration statement (a “First New Registration
Statement”), in either case covering the maximum
number of Registrable Second Closing Securities permitted to be
registered by the SEC, on Form S-3 or such other form available to
register for resale the Registrable Second Closing Securities as a
secondary offering; provided, however, that prior to filing such
amendment or First New Registration Statement, the Company shall be
obligated to use its commercially reasonable efforts to advocate
with the SEC for the registration of all of the Registrable Second
Closing Securities in accordance with the SEC Guidance, including
without limitation, the Manual of Publicly Available Telephone
Interpretations D.29. Notwithstanding any other provision of this
Agreement and subject to the payment of liquidated damages in
Section 2.1(c), if any SEC Guidance sets forth a limitation of the
number of Registrable Second Closing Securities permitted to be
registered on a particular Registration Statement as a secondary
offering (and notwithstanding that the Company used diligent
efforts to advocate with the SEC for the registration of all or a
greater number of Registrable Second Closing Securities), unless
otherwise directed in writing by a Holder as to its Registrable
Second Closing Securities, the number of Registrable Second Closing
Securities to be registered on such Registration Statement will
first be reduced by Registrable Second Closing Securities not
acquired pursuant to the Purchase Agreement (whether pursuant to
registration rights or otherwise), and second by Registrable Second
Closing Securities represented by Shares (applied, in the case that
some Shares may be registered, to the Holders on a pro rata basis
based on the total number of unregistered Shares held by such
Holders, subject to a determination by the Commission that certain
Holders must be reduced first based on the number of Shares held by
such Holders). In the event the Company amends the First Shelf
Registration Statement or files a First New Registration Statement,
as the case may be, under clauses (i) or (ii) above, the Company
will use its commercially reasonable efforts to file with the SEC,
as promptly as allowed by SEC or SEC Guidance provided to the
Company or to registrants of securities in general, one or more
Registration Statements on Form S-3 or such other form available to
register for resale those Registrable Second Closing Securities
that were not registered for resale on the First Shelf Registration
Statement, as amended, or the First New Registration Statement (the
“First Remainder
Registration Statement”).
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(ii)
Second Registration
Statement. Subject to the consummation of the Third Closing
(as defined in the Purchase Agreement), on or prior to 15 days
following the Third Closing Date (as defined in the Purchase
Agreement) (the “Second Filing Deadline”
and together with the First Filing Deadline, as applicable, the
“Filing
Deadline”), the Company shall prepare and file with
the SEC a 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 Third Closing Securities) for an offering to be
made on a continuous basis pursuant to Rule 415 under the
Securities Act (the “Second Shelf Registration
Statement” and together with the First Shelf
Registration Statement, as applicable, a “Shelf Registration
Statement”)). Such Second Shelf Registration Statement
shall, subject to the limitations of Form S-3, include the
aggregate amount of Registrable Third Closing Securities to be
registered therein and shall contain (except if otherwise required
pursuant to written comments received from the Commission upon a
review of such Second Shelf Registration Statement) the “Plan
of Distribution” in substantially the form attached hereto as
Annex A. To the
extent the staff of the SEC does not permit all of the Registrable
Third Closing Securities to be registered on the Second Shelf
Registration Statement filed pursuant to this Section 2.1(a)
or for any other reason any Registrable Third Closing Securities
are not then included in a Registration Statement filed under this
Agreement, the Company shall (i) inform each of the Holders thereof
and use its commercially reasonable efforts to file amendments to
the Second Shelf Registration Statement as required by the
Commission and/or (ii) withdraw the Second Shelf Registration
Statement and file a new registration statement (a
“Second New
Registration Statement” and together with the First
New Registration Statement, as applicable, a “New Registration
Statement”)), in either case covering the maximum
number of Registrable Third Closing Securities permitted to be
registered by the SEC, on Form S-3 or such other form available to
register for resale the Registrable Third Closing Securities as a
secondary offering; provided, however, that prior to filing such
amendment or Second New Registration Statement, the Company shall
be obligated to use its commercially reasonable efforts to advocate
with the SEC for the registration of all of the Registrable Third
Closing Securities in accordance with the SEC Guidance, including
without limitation, the Manual of Publicly Available Telephone
Interpretations D.29. Notwithstanding any other provision of this
Agreement and subject to the payment of liquidated damages in
Section 2.1(c), if any SEC Guidance sets forth a limitation of the
number of Registrable Third Closing Securities permitted to be
registered on a particular Registration Statement as a secondary
offering (and notwithstanding that the Company used diligent
efforts to advocate with the SEC for the registration of all or a
greater number of Registrable Third Closing Securities), unless
otherwise directed in writing by a Holder as to its Registrable
Third Closing Securities, the number of Registrable Third Closing
Securities to be registered on such Registration Statement will
first be reduced by Registrable Third Closing Securities not
acquired pursuant to the Purchase Agreement (whether pursuant to
registration rights or otherwise), and second by Registrable Third
Closing Securities represented by Shares (applied, in the case that
some Shares may be registered, to the Holders on a pro rata basis
based on the total number of unregistered Shares held by such
Holders, subject to a determination by the Commission that certain
Holders must be reduced first based on the number of Shares held by
such Holders). In the event the Company amends the Second Shelf
Registration Statement or files a Second New Registration
Statement, as the case may be, under clauses (i) or (ii) above, the
Company will use its commercially reasonable efforts to file with
the SEC, as promptly as allowed by SEC or SEC Guidance provided to
the Company or to registrants of securities in general, one or more
Registration Statements on Form S-3 or such other form available to
register for resale those Registrable Third Closing Securities that
were not registered for resale on the Second Shelf Registration
Statement, as amended, or the Second New Registration Statement
(the “Second
Remainder Registration Statement” and together with
the First Remainder Registration Statement, as applicable a
“Remainder
Registration Statement”).
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(b)
Effectiveness.
(i) The
Company shall use reasonable best efforts to have the applicable
Shelf Registration Statement or New Registration Statement declared
effective as soon as practicable but in no event later than the
applicable Effectiveness Deadline (including filing with the
Commission a request for acceleration of effectiveness in
accordance with Rule 461 promulgated under the Securities Act), and
shall use its commercially reasonable efforts to keep each Shelf
Registration Statement or New Registration Statement continuously
effective under the Securities Act until the earlier of (i) such
time as all of the Registrable Securities covered by such
Registration Statements have been publicly sold by the Holders or
(ii) the date that all Registrable Securities covered by such
Registration Statements may be sold by non-affiliates without
volume or manner-of-sale restrictions pursuant to Rule 144, without
the requirement for the Company to be in compliance with the
current public information requirement under Rule 144 as determined
by counsel to the Company pursuant to a written opinion letter to
such effect, addressed and reasonably acceptable to the
Company’s transfer agent (the “Effectiveness
Period”). The Company shall notify the Purchasers 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 Purchasers
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 twenty (20) consecutive days or for a total of
not more than forty-five (45) 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 2 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 applicable
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 Purchaser in writing of the
commencement of and the reasons for an Allowed Delay, but shall not
(without the prior written consent of a Purchaser) disclose to such
Purchaser any material non-public information giving rise to an
Allowed Delay, (b) advise the Purchasers 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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(c) If:
(i) the applicable Shelf Registration Statement is not filed with
the SEC on or prior to the applicable Filing Deadline, (ii) the
Shelf Registration Statement or the New Registration Statement, as
applicable, is not declared effective by the SEC (or otherwise does
not become effective) for any reason on or prior to the applicable
Effectiveness Deadline, (iii) after its Effective Date and other
than for an Allowed Delay, (A) such Registration Statement ceases
for any reason (including without limitation by reason of a stop
order, or the Company’s failure to update the Registration
Statement), to remain continuously effective as to all Registrable
Securities included in such Registration Statement or (B) the
Company suspends the use of the Prospectus contained in the
Registration Statement, or (iv) the Company fails to satisfy the
current public information requirement pursuant to Rule 144(c)(1)
as a result of which the Holders are unable to sell Registrable
Securities without restriction under Rule 144 (or any successor
thereto) and fails to cure any such failure to satisfy the Rule
144(c)(1) requirement within 10 business days following the date
upon which the Holder notifies the Company in writing that such
Holder is unable to sell Registrable Securities as a result
thereof, (any such failure or breach in clauses (i) through (iv)
above being referred to as an “Event,” and the date on
which such Event occurs, being referred to as an “Event
Date”), then in addition to any other rights the Holders may
have hereunder or under applicable law, on each such Event Date and
on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the
earlier of (1) the applicable Event is cured or (2) the Registrable
Securities are eligible for resale pursuant to Rule 144 without
manner of sale or volume restrictions, the Company shall pay to
each Holder an amount in cash, as partial liquidated damages and
not as a penalty (“Liquidated Damages”),
equal to one percent (1.0%) of the aggregate purchase price paid by
such Holder pursuant to the Purchase Agreement for any unregistered
Registrable Securities then held by such Holder. The parties agree
that (1) notwithstanding anything to the contrary herein or in the
Purchase Agreement, no Liquidated Damages shall be payable with
respect to any period after the expiration of the Effectiveness
Period (it being understood that this sentence shall not relieve
the Company of any Liquidated Damages accruing prior to the
Effectiveness Deadline) and in no event shall, the aggregate amount
of Liquidated Damages payable to a Holder exceed, in the aggregate,
five percent (5%) of the aggregate purchase price paid by such
Holder pursuant to the Purchase Agreement and (2) in no event shall
the Company be liable in any thirty (30) day period for Liquidated
Damages under this Agreement in excess of one percent (1.0%) of the
aggregate purchase price paid by the Holders pursuant to the
Purchase Agreement. If the Company fails to pay any Liquidated
Damages pursuant to this Section 2(b)(ii) in full within five (5)
Business Days after the date payable, the Company will pay interest
thereon at a rate of one percent (1.0%) per month (or such lesser
maximum amount that is permitted to be paid by applicable law) to
the Holder, accruing daily from the date such Liquidated Damages
are due until such amounts, plus all such interest thereon, are
paid in full. The Liquidated Damages pursuant to the terms hereof
shall apply on a daily pro-rata basis for any portion of a month
prior to the cure of an Event, except in the case of the first
Event Date. The Company shall not be liable for Liquidated Damages
under this Agreement as to any Registrable Securities which are not
permitted by the Commission to be included in a Registration
Statement due solely to SEC Guidance from the time that it is
determined that such Registrable Securities are not permitted to be
registered until such time as the provisions of this Agreement as
to the Remainder Registration Statements required to be filed
hereunder are triggered, in which case the provisions of this
Section 2(b)(ii) shall once again apply, if applicable. In such
case, the Liquidated Damages shall be calculated to only apply to
the percentage of Registrable Securities which are permitted in
accordance with SEC Guidance to be included in such Registration
Statement. The Effectiveness Deadline for a Registration Statement
shall be extended without default or Liquidated Damages hereunder
in the event that the Company’s failure to obtain the
effectiveness of such Registration Statement on a timely basis
results from the failure of a Purchaser to timely provide the
Company with information requested by the Company and necessary to
complete the Registration Statement in accordance with the
requirements of the Securities Act (in which the Effectiveness
Deadline would be extended with respect to Registrable Securities
held by such Purchaser).
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(d) In the
event that Form S-3 is not available for the registration of
the resale of Registrable Securities hereunder, the Company
shall (i)
register the resale of the Registrable Securities on another
appropriate form reasonably acceptable to the Holder and (ii)
undertake to register the Registrable Securities on Form S-3
promptly after such form is available, provided that the Company shall
maintain the effectiveness of the Registration Statement then in
effect until such time as a Registration Statement on Form S-3
covering the Registrable Securities has been declared effective by
the Commission.
2.2
Piggyback Registrations; Prohibition
on Filing other Registration Statements
(a) If
at any time after the Shelf Registration Statement is declared
effective, there is not then an effective registration statement
covering all of the Registrable Securities, and the Company
determines to prepare and file with the SEC a Registration
Statement relating to an offering for its own account or the
account of others of any of its equity securities, then the Company
shall send to each Holder written notice of such determination and,
if within 15 days after the date of such notice, any such Holder
shall so request in writing, the Company shall include in such
Registration Statement all or any part of the Registrable
Securities such Holder requests to be registered.
(b) The
Company shall have the right, in its sole discretion, to terminate
or withdraw any registration initiated by it under this Section 2.2
prior to the effectiveness of such registration whether or not any
Holder has elected to include Registrable Securities in such
registration.
(c)
Prior to the Effective Date of the latter of (i) the First Shelf
Registration Statement or (ii), if applicable, the Second Shelf
Registration Statement, 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
enter into any agreement providing any such right to any of its
security holders. The Company shall not file with the Commission a
registration statement relating to an offering for its own account
under the Securities Act of any of its equity securities other than
a registration statement on Form S-8 or, in connection with an
acquisition, on Form S-4 until the earlier of (i) the date that is
thirty (30) days after the date the applicable Shelf Registration
Statement in the first sentence of this clause (c) is declared
effective or (ii) the date that all Registrable Securities are
eligible for resale by non-affiliates without volume or manner of
sale restrictions under Rule 144 and without the requirement for
the company to be in compliance with the current public information
requirements under Rule 144. For the avoidance of doubt, the
Company shall not be prohibited (i) from preparing and filing with
the Commission a registration statement relating to an offering of
Common Stock by existing stockholders of the Company under the
Securities Act pursuant to the terms of registration rights held by
such stockholder, (ii) from filing amendments to registration
statements filed prior to the date of this Agreement or (iii) from
filing prospectus supplements relating to any offering of
securities of the Company pursuant to any registration statement
filed by the Company prior to the date of this Agreement, provided
that any such filing is in accordance with the terms and
restrictions of the Purchase Agreement.
2.3
Expenses. All expenses incident
to the Company’s performance of or compliance with this
Agreement shall be paid by the Company, other than underwriting
discounts or commissions deducted from the proceeds in respect of
any Registrable Securities, including (i) all registration and
filing fees, and any other fees and expenses associated with
filings required to be made with the SEC, FINRA or any other
regulatory authority and, if applicable, the fees and expenses of
any “qualified independent underwriter” as such term is
defined in NASD Rule 2720 (or any successor provision) and of its
counsel, (ii) all fees and expenses in connection with compliance
with any securities or “Blue Sky” laws (including fees
and disbursements of counsel for the underwriters in connection
with “Blue Sky” qualifications of the Registrable
Securities), (iii) all printing, duplicating, word processing,
messenger, telephone, facsimile and delivery expenses (including
expenses of printing certificates for the Registrable Securities in
a form eligible for deposit with The Depository Trust Company and
of printing Prospectuses and Free Writing Prospectuses), (iv) all
fees and disbursements of counsel for the Company and of all
independent certified public accountants of the Company (including
the expenses of any special audit and cold comfort letters required
by or incident to such performance), (v) Securities Act liability
insurance or similar insurance if the Company so desires or the
underwriters so require in accordance with then-customary
underwriting practice, (vi) all fees and expenses incurred in
connection with the listing of Registrable Securities on any
securities exchange or quotation of the Registrable Securities on
any inter-dealer quotation system, (vii) all reasonable fees and
disbursements of one legal counsel for the Participating Holders,
as selected by the Purchasers, in an amount not to exceed $50,000
in the aggregate during the term of this Agreement, (viii) any
reasonable fees and disbursements of underwriters customarily paid
by issuers or sellers of securities, (ix) all fees and expenses of
any special experts or other Persons retained by the Company in
connection with any registration, (x) all of the Company’s
internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), (xi)
all expenses related to the “road-show” for any
underwritten offering, including all travel, meals and lodging and
(xii) any other fees and disbursements customarily paid by the
issuers of securities. All such expenses are referred to herein as
“Registration
Expenses.” The Company shall not be required to pay
any underwriting discounts and commissions and transfer taxes, if
any, attributable to the sale of Registrable
Securities.
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2.4
Company
Obligations. The Company will use reasonable best efforts to
effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company
will:
(a)
prepare the required Registration Statement including all exhibits
and financial statements required under the Securities Act to be
filed therewith, and before filing a Registration Statement,
Prospectus or any Free Writing Prospectus, or any amendments or
supplements thereto, (x) furnish to the Participating Holders, if
any, copies of all documents prepared to be filed, which documents
shall be subject to the review of such Participating Holders and
their respective counsel and (y) except in the case of a
registration under Section 2.2, not file any Registration Statement
or Prospectus or amendments or supplements thereto to which any
Participating Holders shall reasonably object;
(b)
file with the SEC a Registration Statement relating to the
Registrable Securities including all exhibits and financial
statements required by the SEC to be filed therewith, and use
commercially reasonable efforts to cause such Registration
Statement to become effective under the Securities
Act;
(c)
prepare and file with the SEC such pre- and post-effective
amendments to such Registration Statement, supplements to the
Prospectus and such amendments or supplements to any Free Writing
Prospectus as may be (y) reasonably requested by any Participating
Holder or (z) necessary to keep such Registration effective for the
period of time required by this Agreement, and comply with
provisions of the applicable securities laws with respect to the
sale or other disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended method or methods of disposition by the sellers thereof
set forth in such Registration Statement;
(d)
promptly notify the Participating Holders, and (if requested)
confirm such advice in writing and provide copies of the relevant
documents, as soon as reasonably practicable after notice thereof
is received by the Company (A) when the applicable Registration
Statement or any amendment thereto has been filed or becomes
effective, and when the applicable Prospectus or Free Writing
Prospectus or any amendment or supplement thereto has been filed,
(B) of any written comments by the SEC or any request by the SEC
for amendments or supplements to such Registration Statement,
Prospectus or Free Writing Prospectus or for additional
information, (C) of the issuance by the SEC of any stop order
suspending the effectiveness of such Registration Statement or any
order by the SEC preventing or suspending the use of any
preliminary or final Prospectus or any Free Writing Prospectus or
the initiation or threatening of any proceedings for such purposes,
(D) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable
Securities for offering or sale in any jurisdiction and (E) of the
receipt by the Company of any notification with respect to the
initiation or threatening of any proceeding for the suspension of
the qualification of the Registrable Securities for offering or
sale in any jurisdiction;
(e)
promptly notify the Participating Holders when the Company becomes
aware of the happening of any event as a result of which the
Registration Statement, the Prospectus included in such
Registration Statement (as then in effect) or any Free Writing
Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein (in the case of such Prospectus, any preliminary Prospectus
or any Free Writing Prospectus, in light of the circumstances under
which they were made) not misleading, when any Free Writing
Prospectus includes information that may conflict with the
information contained in the Registration Statement, or, if for any
other reason it shall be necessary during such time period to amend
or supplement such Registration Statement, Prospectus or Free
Writing Prospectus in order to comply with the Securities Act and,
in either case as promptly as reasonably practicable thereafter,
prepare and file with the SEC and furnish without charge to the
Participating Holders an amendment or supplement to such
Registration Statement, Prospectus or Free Writing Prospectus which
shall correct such misstatement or omission or effect such
compliance;
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(f)
promptly incorporate in a Prospectus supplement, Free Writing
Prospectus or post-effective amendment to the applicable
Registration Statement such information as the Participating
Holders agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, and make
all required filings of such Prospectus supplement, Free Writing
Prospectus or post-effective amendment as soon as reasonably
practicable after being notified of the matters to be incorporated
in such Prospectus supplement, Free Writing Prospectus or
post-effective amendment;
(g)
furnish to each Participating Holder, without charge, as many
conformed copies as such Participating Holder may reasonably
request of the applicable Registration Statement and any amendment
or post-effective amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by
reference);
(h)
deliver to each Participating Holder, without charge, as many
copies of the applicable Prospectus (including each preliminary
Prospectus), any Free Writing Prospectus and any amendment or
supplement thereto as such Participating Holder may reasonably
request (it being understood that the Company consents to the use
of such Prospectus, any Free Writing Prospectus and any amendment
or supplement thereto by such Participating in connection with the
offering and sale of the Registrable Securities thereby) and such
other documents as such Participating Holder may reasonably request
in order to facilitate the disposition of the Registrable
Securities by such Participating Holder;
(i) on
or prior to the date on which the Registration Statement is
declared effective, use its reasonable best efforts to register or
qualify, and cooperate with the Participating Holders and their
respective counsel, in connection with the registration or
qualification of such Registrable Securities for offer and sale
under the securities or “Blue Sky” laws of each state
and other jurisdiction of the United States as any Participating
Holder or their respective counsel reasonably request in writing
and do any and all other acts or things reasonably necessary or
advisable to keep such registration or qualification in effect for
such period as required by this Agreement, provided that the Company shall
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any
action which would subject it to taxation or general service of
process in any such jurisdiction where it is not then so
subject;
(j)
cooperate with the Participating Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends, and
enable such Registrable Securities to be in such denominations and
registered in such names as may be requested at least two (2)
Business Days prior to any sale of Registrable
Securities;
(k) use
its reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities;
(l)
make such representations and warranties to the Participating
Holders in form, substance and scope as are customarily made by
issuers in secondary underwritten public offerings;
(m)
enter into such customary agreements (including underwriting and
indemnification agreements) and take all such other actions as the
Purchasers reasonably request in order to expedite or facilitate
the registration and disposition of such Registrable
Securities;
(n)
obtain for delivery to the Participating Holders an opinion or
opinions from counsel for the Company dated the effective date of
the Registration Statement or, in the event of an underwritten
offering, the date of the closing under the underwriting agreement,
in customary form, scope and substance, which opinions shall be
reasonably satisfactory to such Participating Holders or
underwriters, as the case may be, and their respective
counsel;
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(p)
cooperate with each Participating Holder participating in the
disposition of such Registrable Securities and their respective
counsel in connection with any filings required to be made with
FINRA or any other securities regulatory authority;
(q) use
its reasonable best efforts to comply with all applicable
securities laws and make available to its security holders, as soon
as reasonably practicable, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(r)
provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by the applicable
Registration Statement from and after a date not later than the
effective date of such Registration Statement;
(s) use
commercially reasonable efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each
securities exchange on which any of the Common Stock is then listed
or quoted and on each inter-dealer quotation system on which any of
the Common Stock is then quoted;
(t) the
Company shall make available, during normal business hours, for
inspection and review by the Purchasers, advisors to and
representatives of the Purchasers (who may or may not be affiliated
with the Purchasers and who are reasonably acceptable to the
Company), all financial and other records, all SEC Reports (as
defined in the Purchase Agreement) and other filings with the SEC,
and all other corporate documents and properties of the Company as
may be reasonably necessary for the purpose of such review, and
cause the Company’s officers, directors and employees, within
a reasonable time period, to supply all such information reasonably
requested by the Purchasers or any such representative, advisor or
underwriter in connection with such Registration Statement
(including, without limitation, in response to all questions and
other inquiries reasonably made or submitted by any of them), prior
to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the
Purchasers and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial and
ongoing due diligence with respect to the Company and the accuracy
of such Registration Statement; and
(u)
with a view to making available to the Purchasers 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 Purchasers 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 the earlier of (A) the date as all of the
Registrable Securities may be sold without restriction by the
holders thereof pursuant to Rule 144 or any other rule of similar
effect or (B) such date as all of the Registrable Securities shall
have been resold; (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the
Exchange Act; and (iii) furnish to each Purchaser upon request, as
long as such Purchaser owns any Registrable Securities, (A) a
written statement by the Company that it has complied with the
reporting requirements of the Exchange 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 such Purchaser of any rule
or regulation of the SEC that permits the selling of any such
Registrable Securities without registration.
2.5
Obligations of the
Purchasers.
(a)
Each Purchaser 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, 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 Purchaser of the information the
Company requires from such Purchaser if such Purchaser elects to
have any of its Registrable Securities included in the Registration
Statement. A Purchaser shall provide such information to the
Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if such
Purchaser elects to have any of its Registrable Securities included
in the Registration Statement.
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(b)
Each Purchaser, 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 such Purchaser has
notified the Company in writing of its election to exclude all of
its Registrable Securities from such Registration
Statement.
(c)
Each Purchaser agrees that, upon receipt of any notice from the
Company of either (i) the commencement of an Allowed Delay pursuant
to Section 2.1(b) or (ii) the happening of an event pursuant to
Section 2.4(d) and Section 2.4(e) hereof, such Purchaser will
immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable
Securities, until the Purchaser is advised by the Company that such
dispositions may again be made.
2.6
Indemnification.
(a)
Indemnification by the
Company. The Company will indemnify and hold harmless each
Purchaser and its officers, directors, members, employees and
agents, successors and assigns, and each other person, if any, who
controls such Purchaser within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon: (i) any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, any
preliminary Prospectus or final Prospectus, or any amendment or
supplement thereof or any omission or alleged omission to state 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; (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, in light
of the circumstances in which they were made; (iv) any violation by
the Company or its agents of any rule or regulation promulgated
under the Securities 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
Purchaser’s behalf and will reimburse such Purchaser, and
each such officer, director 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 such
Purchaser or any such controlling person in writing specifically
for use in such Registration Statement or Prospectus.
(b)
Indemnification by the
Purchasers. Each Purchaser 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 Securities Act) against any losses, claims, damages,
liabilities and expense (including reasonable attorney fees)
resulting from any untrue statement or alleged untrue statement of
a material fact or any omission or alleged omission of a material
fact required to be stated in the Registration Statement or
Prospectus or preliminary Prospectus or amendment or supplement
thereto 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, to the extent, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged
omission is contained in any information furnished in writing by
such Purchaser 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 Purchaser be greater
in amount than the dollar amount of the proceeds (net of all
expense paid by such Purchaser in connection with any claim
relating to this Section 2.6 and the amount of any damages such
Purchaser has otherwise been required to pay by reason of such
untrue statement or omission) received by such Purchaser upon the
sale of the Registrable Securities included in the Registration
Statement giving rise to such indemnification
obligation.
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(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,
however, that such
indemnified party shall, at the expense of the indemnifying party,
be entitled to counsel of its own choosing to monitor such
defense); provided
that, subject to the preceding sentence, 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.
(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 Securities 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 2.6 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.
2.8
Termination of Registration
Rights. The registration rights provided to the Holders
under Section 2 shall terminate in their entirety upon the
earlier to occur of: (i) the date two years from the Second Closing
Date or such earlier date that is two years from the date the
Purchasers and the Company mutually agree there will be no further
Closings pursuant to the Purchase Agreement; or (ii) at such time
as there are no Registrable Securities. Notwithstanding the
foregoing, Sections 2.3, 2.6 and 3 shall survive the termination of
such registration rights.
3.
Miscellaneous.
3.1
Governing Law; Jurisdiction.
This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware without regard to
the choice of law principles thereof. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the state and
federal courts located in the State of Delaware for the purpose of
any suit, action, proceeding or judgment relating to or arising out
of this Agreement and the transactions contemplated hereby. Service
of process in connection with any such suit, action or proceeding
may be served on each party hereto anywhere in the world by the
same methods as are specified for the giving of notices under this
Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of
any such suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum.
-13-
3.2
Successors and Assigns. Except
as otherwise expressly provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successor and
assigns of the parties hereto (other than the rights of any Holder
under Section 2 hereof, which shall not be assignable and shall not
inure to the benefit of any successor or assign of a Holder). The
Company may not assign its rights or obligations hereunder except
with the prior written consent of each Holder. Each Holder may
assign their respective rights hereunder (other than the rights of
any Holder under Section 2 hereof, which shall not be assignable
and shall not inure to the benefit of any successor or assign of a
Holder) in the manner and to the Persons permitted under the
Purchase Agreement.
3.3 Entire
Agreement; Amendment. This Agreement and the other
Transaction Documents constitute the full and entire understanding
and agreement between the parties with regard to the subjects
hereof and thereof. Any previous agreements among the parties
relative to the specific subject matter hereof are superseded by
this Agreement. Neither this Agreement nor any provision hereof may
be amended, changed, waived, discharged or terminated other than by
a written instrument signed by the party against who enforcement of
any such amendment, change, waiver, discharge or termination is
sought.
3.4 Notices.
All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section 5.3 of the Purchase
Agreement.
3.5
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 commercially 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.
3.6
Headings. The headings herein
are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
3.7
Counterparts. This Agreement
may be executed in two or more counterparts, all of which when
taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each
party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that
any signature is delivered by facsimile transmission or by e-mail
delivery of a “.pdf” format data file, such signature
shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or “.pdf” signature
page were an original thereof.
3.8
Delays
or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party upon any
breach or default of any other party under this Agreement shall
impair any such right, power or remedy, nor shall it be construed
to be a waiver of any such breach or default, or any acquiescence
therein, or of any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter
occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character of any breach or default under
this Agreement, or any waiver of any provisions or conditions of
this Agreement must be in writing and shall be effective only to
the extent specifically set forth in writing, and that all
remedies, either under this Agreement, by law or otherwise, shall
be cumulative and not alternative.
3.9
Consents. Any permission,
consent, or approval of any kind or character under this Agreement
shall be in writing and shall be effective only to the extent
specifically set forth in such writing.
-14-
3.10
SPECIFIC
PERFORMANCE. THE PARTIES HERETO AGREE THAT IRREPARABLE
DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC INTENT
OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE
PARTIES SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS, WITHOUT
BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF THIS
AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS
HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY
MAY BE ENTITLED BY LAW OR EQUITY, AND ANY PARTY SUED FOR BREACH OF
THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY IN
DAMAGES WOULD BE ADEQUATE.
3.11
Construction of Agreement. No
provision of this Agreement shall be construed against either party
as the drafter thereof.
3.12
Section
References. Unless otherwise stated, any reference contained
herein to a Section or subsection refers to the provisions of this
Agreement.
3.13
Variations of Pronouns. All
pronouns and all variations thereof shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the context
in which they are used may require.
[Remainder of Page Intentionally Left Blank; Signature Pages
Follow]
-15-
IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first written
above.
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ChromaDex
Corporation
By:
/s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title:
Chief Executive Officer
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IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first written
above.
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PURCHASERS:
CHAMPION
RIVER VENTURES LIMITED
By:
/s/ Xxx Xxx Wan
E
Name:
Xxx Xxx Xxx Xxxx
Title:
Director
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IN
WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first written
above.
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PURCHASERS:
PIONEER
STEP HOLDINGS LIMITED
By:
/s/ Xxxx Xxx Shuen Xxxxxx
Xxxxx
Name: Xxxx
Xxx Shuen Xxxxxx Xxxxx
Title:
Director
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Annex A
PLAN OF DISTRIBUTION
We are
registering the shares of common stock issued to the selling
stockholders to permit the resale of these shares of common stock
by the holders of the shares of common stock from time to time
after the date of this prospectus. We will not receive any of the
proceeds from the sale by the selling stockholders of the shares of
common stock. We will bear all fees and expenses incident to our
obligation to register the shares of common stock.
The
selling stockholders may sell all or a portion of the shares of
common stock beneficially owned by them and offered hereby from
time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the selling stockholders
will be responsible for underwriting discounts or commissions or
agent’s commissions. The shares of common stock may be sold
on any national securities exchange or quotation service on which
the securities may be listed or quoted at the time of sale, in the
over-the-counter market or in transactions otherwise than on these
exchanges or systems or in the over-the-counter market and in one
or more transactions at fixed prices, at prevailing market prices
at the time of the sale, at varying prices determined at the time
of sale, or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions. 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;
●
settlement of short
sales entered into after the effective date of the registration
statement of which this prospectus is a part;
●
broker-dealers may
agree with the selling stockholders to sell a specified number of
such shares at a stipulated price per share;
●
through the writing
or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or
otherwise;
●
a combination of
any such methods of sale; and
●
any other method
permitted pursuant to applicable law.
The
selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance upon Rule 144 under
the Securities Act, as permitted by that rule, or Section 4(1)
under the Securities Act, if available, rather than under this
prospectus, provided that they meet the criteria and conform to the
requirements of those provisions.
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Broker-dealers
engaged by the selling stockholders may arrange for other
broker-dealers to participate in sales. If the selling stockholders
effect such transactions by selling shares of common stock to or
through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders
or commissions from purchasers of the shares of common stock for
whom they may act as agent or to whom they may sell as principal.
Such commissions will be in amounts to be negotiated, but, except
as set forth in a supplement to this Prospectus, in the case of an
agency transaction will not be in excess of a customary brokerage
commission in compliance with FINRA Rule 5110.
In
connection with sales of the shares of common stock or otherwise,
the selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions, which may in turn
engage in short sales of the shares of common stock in the course
of hedging in positions they assume. The selling stockholders may
also sell shares of common stock short and if such short sale shall
take place after the date that this Registration Statement is
declared effective by the Commission, the selling stockholders may
deliver shares of common stock covered by this prospectus to close
out short positions and to return borrowed shares in connection
with such short sales. The selling stockholders may also loan or
pledge shares of common stock to broker-dealers that in turn may
sell such shares, to the extent permitted by applicable law. The
selling stockholders may also enter into option or other
transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of
shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction). Notwithstanding the foregoing, the selling
stockholders have been advised that they may not use shares
registered on this registration statement to cover short sales of
our common stock made prior to the date the registration statement,
of which this prospectus forms a part, has been declared effective
by the SEC.
The
selling stockholders may, from time to time, pledge or grant a
security interest in some or all of the warrants or 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
pursuant to this prospectus or any amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the
Securities Act of 1933, as amended, amending, if necessary, 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 and donate
the shares of common stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will
be the selling beneficial owners for purposes of this
prospectus.
The
selling stockholders and any broker-dealer or agents participating
in the distribution of the shares of common stock may be deemed to
be “underwriters” within the meaning of
Section 2(11) of the Securities Act in connection with such
sales. In such event, any commissions paid, or any discounts or
concessions allowed to, any such broker-dealer or agent and any
profit on the resale of the shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities
Act. Selling Stockholders who are “underwriters” within
the meaning of Section 2(11) of the Securities Act will be
subject to the prospectus delivery requirements of the Securities
Act and may be subject to certain statutory liabilities of,
including but not limited to, Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Securities Exchange
Act of 1934, as amended, or the Exchange Act.
Each
selling stockholder has informed the Company that it is not a
registered broker-dealer and does not have any written or oral
agreement or understanding, directly or indirectly, with any person
to distribute the common stock. Upon the Company being notified in
writing by a selling stockholder that any material arrangement has
been entered into with a broker-dealer for the sale of common stock
through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a
supplement to this prospectus will be filed, if required, pursuant
to Rule 424(b) under the Securities Act, disclosing (i) the
name of each such selling stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved,
(iii) the price at which such the shares of common stock were
sold, (iv) the commissions paid or discounts or concessions
allowed to such broker-dealer(s), where applicable, (v) that
such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus, and (vi) other facts material to the transaction.
In no event shall any broker-dealer receive fees, commissions and
markups, which, in the aggregate, would exceed eight percent
(8%).
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Under
the securities laws of some states, the shares of common stock may
be sold in such states only through registered or licensed brokers
or dealers. In addition, in some states the shares of common stock
may not be sold unless such shares have been registered or
qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There
can be no assurance that any selling stockholder will sell any or
all of the shares of common stock registered pursuant to the shelf
registration statement, of which this prospectus forms a
part.
Each
selling stockholder and any other person participating in such
distribution will be subject to applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, including, without limitation,
Regulation M of the Exchange Act, which may limit the timing
of purchases and sales of any of the shares of common stock by the
selling stockholder and any other participating person.
Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage
in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to
engage in market-making activities with respect to the shares of
common stock.
We will
pay all expenses of the registration of the shares of common stock
pursuant to the registration rights agreement, including, without
limitation, Securities and Exchange Commission filing fees and
expenses of compliance with state securities or “blue
sky” laws; provided,
however, that each selling
stockholder will pay all underwriting discounts and selling
commissions, if any, and any legal expenses incurred by it. We will
indemnify the selling stockholders against certain liabilities,
including some liabilities under the Securities Act, in accordance
with a registration rights agreement, or the selling stockholders
will be entitled to contribution. We may be indemnified by the
selling stockholders against civil liabilities, including
liabilities under the Securities Act, that may arise from any
written information furnished to us by the selling stockholders
specifically for use in this prospectus, in accordance with the
related registration rights agreements, or we may be entitled to
contribution.
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