REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of the 31st day of
December 1999, between Endeavour Capital Fund SA (referred to as the "Holder")
and Interiors, Inc. a corporation incorporated under the laws of the State of
Delaware (the "Company").
WHEREAS, pursuant to the Exchange Agreement dated as of December 31,
1999 (the "Exchange Agreement"), the Holder will be purchasing Notes and
Warrants (hereinafter collectively referred to as the "Securities" of the
Company) of the Company; All capitalized terms not hereinafter defined shall
have that meaning assigned to them in the Exchange Agreement; and
WHEREAS, the Company desires to grant to the Holder the registration
rights set forth herein with respect to the Securities set forth in the Exchange
Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. Registrable Securities. As used herein the term
"Registrable Security" shall mean the Additional Shares, Warrant Shares, and
Underlying Shares (for that portion of the Note that remains outstanding when
the Company's obligation to file a Registration Statement arises as set forth in
Section 3 below): (i) in respect of which a registration statement (covering
these securities) has not been declared effective by the SEC, (ii) which have
not been sold under circumstances under which all of the applicable conditions
of Rule 144 (or any similar provision then in force) under the Securities Act
("Rule 144") are met, (iii) which have not been otherwise transferred to holders
who may trade such shares without restriction under the Securities Act, or (iv)
the sales of which, in the opinion of counsel to the Company, are subject to any
time, volume or manner limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a Registrable Security. In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be made in the
definition of Registrable Security as is appropriate in order to prevent any
dilution or enlargement of the rights granted pursuant to this Section.
Section 2. Restrictions on Transfer. The Holder acknowledges and
understands that prior to the registration of the Registrable Securities as
provided herein and prior to an exemption to registration being available, the
Registrable Securities are "restricted securities" as defined in Rule 144
promulgated under the Securities Act. The Holder understands that no disposition
or transfer of the Registrable Securities may be made by the Holder in the
absence of (i) an opinion of counsel to the Company (which shall not
unreasonably be withheld and/or delayed) that such transfer may be made without
registration under the Securities Act and state law, or (ii) such registration.
Section 3. Registration Rights.
(a) The Company agrees, that in the event that all of the
principal amount of the Notes has not been redeemed (as per the terms of the
Notes) on or before May 30, 2000 (and in the event all of the principal amount
of the Notes has been redeemed on or before May 30, 2000, the Company shall
prepare such registration statement set forth below and include all Warrant
Shares issuable upon exercise of the Warrants issued pursuant to the Exchange
Agreement), it will prepare and file with the Securities and Exchange Commission
("SEC"), on or before June 30, 2000, a registration statement (on Form S-3)
under the Securities Act (the "Registration Statement"), at the sole expense of
the Company (except as provided in Section 3(c) hereof), in respect of the
Holder for resales under the Securities Act of the Registrable Securities. The
Company shall use its best efforts to cause the Registration Statement to become
effective on or before September 30, 2000. The number of shares of Common Stock
designated in the Registration Statement to be registered shall be one hundred
fifty (150%) percent of the number of shares of Common Stock that would be
required if the then outstanding principal amount of the Notes and Warrants were
converted and exercised on the Trading Day immediately preceding the date the
Registration Statement was filed.
(b) The Company will maintain the effectiveness of any
Registration Statement or post-effective amendment filed under this Section 3
hereof under the Securities Act until the earlier of (i) the date that all of
the Registrable Securities have been sold pursuant to a Registration Statement,
(ii) the date the holders thereof receive an opinion of counsel that all of the
Registrable Securities may be sold (without volume limitation) under the
provisions of Rule 144 or (iii) five and one half years after the filing of such
Registration Statement.
(c) All fees, disbursements, out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of the
Registration Statement and in complying with applicable securities and blue sky
laws (including, without limitation, all attorneys' fees) shall be borne by the
Company. The Holder shall bear the cost, pro rata, of underwriting discounts and
commissions, if any, applicable to the Registrable Securities being registered
and the fees and expenses of their counsel. The Company shall qualify any of the
Registrable Securities for sale in such states as the Holder reasonably
designates and shall furnish indemnification in the manner provided in Section 8
hereof. However, the Company shall not be required to qualify in any state that
will require an escrow or other restriction relating to the Company and/or the
sellers. The Company at its expense will supply the Holder with copies of the
Registration Statement and the prospectus or offering circular included therein
and other related documents in such quantities as may be reasonably requested by
the Holder.
(e) Unless otherwise agreed to in writing by the Holder, the
Company shall only be permitted to include the Registrable Securities in the
Registration Statement. The Company represents that as of the date hereof it is
not obligated to file a registration statement on behalf of any other Person
and/or entity not a party to this Agreement.
(f) In the event the Registration Statement to be filed by the
Company pursuant to Section 3(a) above has not been filed by the Company in a
timely manner as provided above, or declared effective by the SEC on or before
the September 30, 2000, then the
Company will pay to the Holder, as liquidated damages for such failure and not
as a penalty, two (2%) percent of the principal amount of the then outstanding
Notes for each 30 calendar day period thereafter (pro rated on a daily basis),
until the Registration Statement has been filed and/or declared effective.
Notwithstanding the foregoing the Company shall not be obligated for liquidated
damages if not filed in a timely manner if the Registration Statement has been
declared effective on or before September 30, 2000. Such payment of the
liquidated damages shall be made to the Holder in cash, immediately upon written
demand, provided, however, that the payment of such liquidated damages shall not
relieve the Company from its obligations to register the Securities pursuant to
this Section and registration shall not relieve the Company from any obligation
to pay liquidated damages. The Holder's rights to liquidated damages as set
forth herein shall not interfere with the Holder's right to call the Notes due
and payable immediately as per the terms of the Note for the failure of the
Company to timely file the Registration Statement, or the failure of the
Registration Statement to be declared effective by the SEC in a timely manner as
provided herein.
(g) If the Company does not remit the damages to the Holder as
set forth above, the Company will pay the Holder's reasonable costs of
collection, including reasonable attorney's fees, in addition to the liquidated
damages. The registration of the Securities pursuant to this provision shall not
affect or limit the Holders other rights or remedies as set forth in this
Agreement.
(h) The Company agrees that within five calendar days after
being notified by the SEC that the Registration Statement has been cleared to go
effective, the Company it will declare Registration Statement effective. The
Company agrees that it shall forward to the Investor a copy of any and all SEC
comments it may receive pertaining to the Registration Statement. The Company
also agrees that it shall respond in writing to any questions and/or comments
from the SEC that relate to the Registration Statement within ten calendar days
of receipt of such question or comment.
(i) In the event the number of shares of Common Stock included
in the Registration Statement shall be insufficient to cover the number of
Registrable Securities due to the Holder under the terms of the Purchase
Agreement and/or the Notes and Warrants, the Company agrees that it shall file
either a new Registration Statement including such additional shares or amend
the then existing Registration Statement. The Company agrees that in such event
it will file with the SEC either an amendment to the then existing Registration
Statement or a new Registration Statement within 30 calendar days of when
required hereunder, and use its best efforts to cause either the amendment or
such Registration Statement to become effective within 90 calendar days from
when required to file such Registration Statement pursuant to the terms herein.
If such amendment or new Registration Statement is not filed and/or declared
effective in a timely manner as set forth herein, the Company shall be subject
to liquidated damages as pursuant to the provisions of Section 3(e).
Section 4. Cooperation with Company. The Holder will cooperate with
the Company in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by the Company and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities.
Section 5. Registration Procedures. If and whenever the Company is
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Securities Act, the Company shall
(except as otherwise provided in this Agreement), as expeditiously as possible:
(a) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
whenever the Holder of such securities shall desire to sell or otherwise dispose
of the same (including prospectus supplements with respect to the sales of
securities from time to time in connection with a registration statement
pursuant to Rule 415 promulgated under the Securities Act);
(b) furnish to the Holder copies of the Registration Statement
(and any amendments thereto), a summary prospectus or other prospectus,
including a preliminary prospectus or any amendment or supplement to any
prospectus, in conformity with the requirements of the Securities Act, and shall
also furnish such other documents as the Holder may reasonably request in order
to facilitate the public sale or other disposition of the Securities owned by
the Holder;
(c) register and qualify the Registrable securities covered by
the Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Holder shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable the Holder to
consummate the public sale or other disposition in such jurisdiction of the
securities owned by the Holder, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to file therein any general
consent to service of process, or to qualify any of the securities for sale in
any state which will require an escrow or other restriction relating to the
Company and/or sellers;
(d) list such securities on the Nasdaq Small Cap Market or
other national securities exchange on which any securities of the Company are
then listed, if the listing of such securities is then permitted under the rules
of such exchange or market;
(e) notify the Holder of Registrable Securities covered by the
Registration Statement, at any time when a prospectus relating thereto covered
by the Registration Statement is required to be delivered under the Securities
Act, of the happening of any event of which the executive officers of the
Company have knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(f) If a "blackout period" (which is defined as any period in
which the effectiveness of the Registration Statement is suspended for a reason
other than a suspension of the Registration Statement arising because the
Company possesses material non-public information) occurs at any time after the
first anniversary of the Closing Date, and the Bid Price on the Trading Day
immediately preceding such "blackout period" (the "Old Bid Price") is greater
than the Bid Price on the first Trading Day following such "blackout period"
(the "New Bid Price"), the Company shall issue to the Holder the number of
additional shares of Common Stock equal to the difference between (y) the
product of (i) the number of Underlying Shares and Warrant Shares held by the
Holder during such "blackout period" that are or were not otherwise freely
tradable and (ii) the Old Bid Price, divided by the New Bid Price and (z) the
number of Underlying Shares and Warrant Shares held by the Holder during such
blackout period that were not otherwise freely tradable during such blackout
period. In the event a "blackout period" lasts for more than 30 calendar days
then the Holder shall have the right to demand the Company to redeem the Notes
and Warrants pursuant to the redemption provision of the Notes and Warrants.
(g) In addition to any other provisions for liquidated damages
in this Agreement or any Exhibit annexed hereto, if that the Company does not
deliver unlegended, freely tradable Common Stock in connection with the sale of
such Common Stock by the Holder within five Business Days of surrender by the
Holder of the Common Stock certificate (such date of receipt is referred to as
the "Receipt Date"), the Company shall pay to the Holder, in immediately
available funds, upon demand, as liquidated damages for such failure and not as
a penalty, for every day thereafter for the first ten days, two percent of the
product of (i) the number of shares of Common Stock undelivered and (ii) the Bid
Price on the Receipt Date, and three percent of the product of (i) the number of
shares of Common Stock undelivered and (ii) the Bid Price on the Receipt Date,
for every day thereafter that the unlegended shares of Common Stock are not
delivered, which liquidated damages shall accrue from the sixth Business Day
after the Receipt Date. The parties hereto acknowledge and agree that the sums
payable and as set forth above, and the obligation to issue Additional Shares,
shall constitute liquidated damages and not penalties. The parties further
acknowledge that the amount of loss or damages likely to be incurred in the
event of a failure to deliver unlegended, freely tradable shares of Common Stock
cannot be precisely estimated, and the parties are sophisticated business
parties and have been represented by sophisticated and able legal and financial
counsel and negotiated this Agreement at arm's length. Notwithstanding the
above, in the event that the Company does not deliver unlegended Common Stock in
connection with the sale of such Common Stock by the Holder within five Business
Days of the Receipt Date, the Company shall also pay to the Holder, in
immediately available funds, interest (at the then current Prime Rate), based
upon the product of (i) the number of undelivered unlegended freely tradable
shares, and (ii) the Bid Price of the Common Stock on the Receipt Date,
undelivered for every day thereafter that the unlegended shares of Common Stock
are not delivered. Any and all payments required pursuant to this paragraph
shall be payable only in cash, and any payment hereunder shall not relieve the
Company of its delivery obligations under this Section or elsewhere in this
Agreement, the Note or Warrant.
(h) The Company shall make available for inspection and review
by the Holder, advisors to and representatives of the Holder (who may or may not
be affiliated with the Holder), and any underwriter participating in any
disposition of the Registrable Securities on
behalf of the Holder pursuant to the Registration Statement, any such
registration statement or amendment or supplement thereto or any blue sky, NASD
or other filing, all financial and other records, all SEC Documents 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 to supply all such information
reasonably requested by the Holder 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
Holder and such representatives, advisors and underwriters and its respective
accountants and attorneys to conduct initial and ongoing due diligence with
respect to the Company and the accuracy of the Registration Statement.
(i) The Company shall not disclose non-public information to
the Holder, or advisors to or representatives of, the Investor unless prior to
disclosure of such information the Company identifies such information as being
non-public information and provides the Holder, and their advisors and
representatives, with the opportunity to accept or refuse to accept such
non-public information for review. The Company may, as a condition to disclosing
any non-public information hereunder, require the Holder, advisors and
representatives of the Holder, to enter into a confidentiality agreement in form
reasonably satisfactory to the Company and the Holder.
(j) Nothing herein shall require the Company to disclose
non-public information to the Holder or its advisors or representatives, and the
Company represents that it does not disseminate non-public information to any
investors who purchase stock in the Company in a public offering, to money
managers or to securities analysts, provided, however, that notwithstanding
anything herein to the contrary, the Company will, as hereinabove provided,
immediately notify the advisors and representatives of the Investor and, if any,
underwriters, of any event or the existence of any circumstance (without any
obligation to disclose the specific event or circumstance) of which it becomes
aware, constituting non-public information (whether or not requested of the
Company specifically or generally during the course of due diligence by such
persons or entities), which, if not disclosed in the prospectus included in the
Registration Statement would cause such prospectus to include a material
misstatement or to omit a material fact required to be stated therein in order
to make the statements, therein, in light of the circumstances in which they
were made, not misleading. Nothing contained in this Section shall be construed
to mean that such persons or entities other than the Holder (without the written
consent of the Holder prior to disclosure of such information) may not obtain
non-public information in the course of conducting due diligence in accordance
with the terms of this Agreement and nothing herein shall prevent any such
persons or entities from notifying the Company of its opinion that based on such
due diligence by such persons or entities, that the Registration Statement
contains an untrue statement of a material fact or omits a material fact
required to be stated in the Registration Statement or necessary to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading.
(k) The Holder agrees to the imprinting, so long as is
required by this Section, of the following legend (or such substantially similar
legend as is acceptable to the Holder and its counsel, the parties agreeing that
any unacceptable legended securities shall be
replaced promptly by and at the Company's cost) on each of the Securities
(provided that the Additional Shares, Underlying Shares and Warrant Shares shall
not contain such legend if such shares have been included as part of a then
effective Registration Statement or an exemption from registration then exists):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR APPLICABLE STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS OR PURSUANT TO AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT THERE IS AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
The Company agrees that it will provide the Holder, upon request, with a
certificate or certificates representing the Securities, free from such legend
at such time as such legend is no longer required hereunder. The Company may not
take any action or make any notation on its records or give instructions to any
transfer agent of the Company that enlarge the restrictions of transfer set
forth in this Section.
Upon the one-year anniversary of the Closing Date, the Company shall issue
to the transfer agent for its Common Stock (and to any substitute or replacement
transfer agent for its Common Stock upon the Company's appointment of any such
substitute or replacement transfer agent) instructions in substantially the form
of Exhibit G to the Exchange Agreement. Such instructions shall be irrevocable
by the Company from and after the date hereof or from and after the issuance
thereof to any such substitute or replacement transfer agent, as the case may
be, except as otherwise expressly provided in the Registration Rights Agreement.
It is the intent and purpose of such instructions, as provided therein, to
require the transfer agent for the Common Stock from time to time upon transfer
of Registrable Securities by the Holder to issue certificates evidencing such
Registrable Securities free of the Legend during the following periods and under
the following circumstances and except as provided below, without consultation
by the transfer agent with the Company or its counsel and without the need for
any further advice or instruction or documentation to the transfer agent by or
from the Company or its counsel or the Holder: (a) at any time after one year
after the Closing Date, and the Effective Date has occurred, upon surrender of
one or more certificates evidencing the Warrant, Notes, Underlying Shares or
Warrant Shares that bear the aforementioned Legend, to the extent accompanied by
a notice requesting the issuance of new certificates free of the aforementioned
legend to replace those surrendered; provided that (i) the Registration
Statement shall then be effective; (ii) the Holder confirms to the transfer
agent that it has sold, pledged or otherwise transferred or agreed to sell,
pledge or otherwise transfer such Common Stock in a bona fide transaction to a
third party that is not an affiliate of the Company; and (iii) the Investor
confirms to the transfer agent that the Holder has complied with the prospectus
delivery requirement; or (b) at any time upon any surrender of one or more
certificates evidencing Registrable Securities, that bear the aforementioned
legend, to the extent accompanied by a notice requesting the issuance of new
certificates free of such legend to replace those surrendered and containing
representations that (i) the Holder is permitted to dispose of such Registrable
Securities, without limitation as to amount or manner of sale pursuant to Rule
144(k) under the Securities Act (or any other similar exemption as may then be
in effect), or (ii) the Holder has sold, pledged or otherwise transferred or
agreed to sell, pledge or otherwise transfer such Registrable Securities, in a
manner other than pursuant to an effective registration statement, to a
transferee who will upon such transfer be entitled to freely tradable
securities. The Company shall have counsel provide any and all opinions
necessary for the sale under Rule 144 (or such other applicable exemption). Any
of the notices referred to above in this Section may be sent by facsimile to the
Company's transfer agent. No instructions or "stop transfer orders," so called,
"stock transfer restrictions," or other restrictions have been or shall be given
to the Company's transfer agent with respect to the Notes, Warrants or
Securities other than as expressly set forth in this Article.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Holder, and each officer, director or person, if any, who controls the Holder
within the meaning of the Securities Act ("Distributing Holder") against any
losses, claims, damages or liabilities, joint or several (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of defense
and investigation and all reasonable attorneys' fees), to which the Distributing
Holder 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 any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, or any related
preliminary prospectus, final prospectus, offering circular, notification or
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company (i) will not be liable in any such case 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
made in the Registration Statement, preliminary prospectus, final prospectus,
offering circular, notification or amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the Company by
the Distributing Holder, specifically for use in the preparation thereof, or
(ii) cannot pay any amounts paid in settlement of any loss, claim, damage or
liability if such settlement is effected without the consent of the Company,
which consent shall not be unreasonably withheld. This Section 6(a) shall not
inure to the benefit of any Distributing Holder with respect to any person
asserting such loss, claim, damage or liability who purchased the Registrable
Securities which are the subject thereof if the Distributing Holder failed to
send or give (in violation of the Securities Act or the rules and regulations
promulgated thereunder) a copy of the prospectus contained in such Registration
Statement to such person at or prior to the written confirmation of such person
of the sale of such Registrable Securities, where the Distributing Holder was
obligated to do so under the Securities Act or the rules and regulations
promulgated thereunder. This indemnity provision will be in addition to any
liability that the Company may otherwise have.
(b) Each Distributing Holder agrees that it will indemnify and
hold harmless the Company, each officer, director, or person, if any, who
controls the Company
within the meaning of the Securities Act (each a "Company Indemnitee"), and each
other Distributing Holder, against any losses, claims, damages or liabilities,
joint or several (which shall, for all purposes of this Agreement, include, but
not be limited to, all costs of defense and investigation and all reasonable
attorneys' fees) to which any Company Indemnitee or other Distributing Holder
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 any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, or any related preliminary
prospectus, final prospectus, offering circular, notification or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, preliminary
prospectus, final prospectus, offering circular, notification or amendment or
supplement thereto in reliance upon, and in conformity with, written information
furnished to the Company by such Distributing Holder, specifically for use in
the preparation thereof. This indemnity provision will be in addition to any
liability that the Distributing Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than as to the particular item as to which indemnification is then
being sought solely pursuant to this Section 6. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
in, and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, assume the defense thereof, subject to the provisions
herein stated and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation, unless
the indemnifying party shall not pursue the action to its final conclusion. The
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of the indemnifying party if the
indemnifying party has assumed the defense of the action with counsel reasonably
satisfactory to the indemnified party; provided that if the indemnified party is
the Distributing Holder, the fees and expenses of such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
Distributing Holder and the indemnifying party and the Distributing Holder shall
have been advised by such counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the Distributing Holder (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the Distributing Holder, it being understood, however, that the
indemnifying party
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the Distributing Holder, which
firm shall be designated in writing by the Distributing Holder). No settlement
of any action against an indemnified party shall be made without the prior
written consent of the indemnified party, which consent shall not be
unreasonably withheld.
Section 7. Contribution. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Holder shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (which shall, for all
purposes of this Agreement, include, but not be limited to, all costs of defense
and investigation and all attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the applicable
Distributing Holder on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Distributing Holder agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 7. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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 who was not
guilty of such fraudulent misrepresentation.
Section 8. Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and, unless otherwise specified herein, shall be (i) personally served,
(ii) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (iii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated below (if
delivered on a Business Day between the hours of 9:00 a.m. and 5:00 p.m. where
such notice is to be received), or the first Business Day following such
delivery (if delivered other than on a Business Day between the hours of 9:00
a.m. and 5:00 p.m. where such notice is to be received),
(b) on the second Business Day following the date of mailing by reputable
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur, or (c) five calendar days
after sent by regular mail. The addresses for such communications shall be:
If to the Company:
Interiors, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: President
If to the Holder:
Endeavour Capital Fund SA
The Maduro Building, P.O. Box 662,
Wickhams Cay, Road Town, Tortola,
British Virgin Islands
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
Either party hereto may from time to time change its address or facsimile
number for notices under this Section 8 by giving at least ten calendar days'
prior written notice of such changed address or facsimile number to the other
party hereto.
Section 9. Assignment. This Agreement is binding upon and inures to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. In the event of a transfer of the rights granted under this
Agreement, the Holder agrees that the Company may require that the transferee
comply with reasonable conditions as determined in the discretion of the
Company.
Section 10. Counterparts; Facsimile; Amendments. This Agreement may
be executed in multiple counterparts, each of which may be executed by less than
all of the parties and shall be deemed to be an original instrument which shall
be enforceable against the parties actually executing such counterparts and all
of which together shall constitute one and the same instrument. Except as
otherwise stated herein, in lieu of the original documents, a facsimile
transmission or copy of the original documents shall be as effective and
enforceable as the original. This Agreement may be amended only by a writing
executed by all parties.
Section 11. Termination of Registration Rights. This Agreement shall
terminate as to the Holder (and permitted transferees or assignees) upon the
occurrence of any of the following:
(a) all Holder's Securities subject to this Agreement have been
registered;
(b) all of such Holder's Securities subject to this Agreement may be
sold without such registration pursuant to Rule 144 promulgated by the SEC
pursuant to the Securities Act; and
(c) all of such Holder's Securities subject to this Agreement can be
sold pursuant to Rule 144(k) without limitation.
Section 12. Headings. The headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 13. Governing Law: Venue; Jurisdiction. This Agreement will
be exclusively construed and enforced in accordance with and governed by the
laws of the State of New York, except for matters arising under the Securities
Act, without reference to principles of conflicts of law. Each of the parties
consents to the exclusive jurisdiction of the U.S. District Court sitting in the
Southern District of the State of New York in connection with any dispute
arising under this Agreement and hereby waives, to the maximum extent permitted
by law, any objection, including any objection based on forum non conveniens, to
the bringing of any such proceeding in such jurisdictions. Each party hereby
agrees that if another party to this Agreement obtains a judgment against it in
such a proceeding, the party which obtained such judgment may enforce same by
summary judgment in the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby waives any
defenses available to it under local law and agrees to the enforcement of such a
judgment. Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address set forth herein.
Nothing herein shall affect the right of any party to serve process in any other
manner permitted by law.
Section 14. Severability. If any provision of this Agreement shall
for any reason be held invalid or unenforceable, such invalidity or
unenforceablity shall not affect any other provision hereof and this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein. Terms not otherwise defined herein shall be defined in
accordance with the Agreement.
Section 15. Capitalized Terms. All capitalized terms not otherwise
defined herein shall have the meaning assigned to them in the Purchase
Agreement.
Section 16. Entire Agreement. This Agreement, together with all
documents referenced herein, embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement shall affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on the day and year first above written.
INTERIORS, INC.
By: /s/ Xxx Xxxx
-------------------------------------
Name: Xxx Xxxx
Title: President
INVESTOR:
Endeavour Capital Fund SA
By:
-------------------------------------
Name:
Title:
