EXHIBIT NO. 10.47 REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (“Agreement”), dated November 7, 2011, is made by and
between UFOOD RESTAURANT GROUP, INC. a Nevada corporation (“Company”), and SOUTHRIDGE PARTNERS II,
LP, a Delaware limited partnership (the “Investor”).
(a) As used in this Agreement, the following terms shall have the following meaning:
(i) “Subscription Date” means the date of this Agreement.
(ii) “Investor” has the meaning set forth in the preamble to this Agreement.
(iii) “Register,” “registered” and “registration” refer to a registration effected by
preparing and filing a Registration Statement or Statements in compliance with the Securities Act
and pursuant to Rule 415 under the Securities Act or any successor rule providing for offering
securities on a delayed or continuous basis (“Rule 415”), and the declaration or ordering of
effectiveness of such Registration Statement by the United States Securities and Exchange
Commission (the “SEC”).
(iv) “Registrable Securities” will have the same meaning as set forth in the Purchase
Agreement.
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(v) “Registration Statement” means the Company’s registration statement on Form S-1, or any
similar registration statement of the Company filed with SEC under the Securities Act with respect
to the Registrable Securities.
(vi) “XXXXX” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System.
(b) Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement.
2. [RESERVED]
3. Obligation of the Company. In connection with the registration of the Registrable Securities,
the Company shall do each of the following:
(a) Prepare promptly and file with the SEC within thirty (30) days after the date hereof, a
Registration Statement with respect to not less than 13,500,000 of Registrable Securities, and
thereafter use all commercially reasonable efforts to cause such Registration Statement relating to
the Registrable Securities to become effective within five (5) business days after notice from the
Securities and Exchange Commission that such Registration Statement may be declared effective, and
keep the Registration Statement effective at all times until the earliest of (i) the date that is
three months after the completion of the last Closing Date under the Purchase Agreement, (ii) the
date when the Investor may sell all Registrable Securities under Rule 144 without volume
limitations, or (iii) the date the Investor no longer owns any of the Registrable Securities
(collectively, the “Registration Period”), which Registration Statement (including any amendments
or supplements, thereto and prospectuses contained therein) shall not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(b) Prepare and file with the SEC such amendments (including post-effective amendments) and
supplements to the Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration Statement effective at all
times during the Registration Period, and to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities of the Company covered by the Registration
Statement until the expiration of the Registration Period.
(c) With respect to the Registrable Securities, permit counsel designated by Investor to
review the Registration Statement and all amendments and supplements thereto a reasonable period of
time (but not less than two (2) business days) prior to their filing with the SEC, and not file any
document in a form to which such counsel reasonably objects.
(d) As promptly as practicable after becoming aware of the following facts, the Company shall
notify Investor and Investor’s legal counsel identified to the Company and (if
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requested by any such person) confirm such notice in writing no later than one (1) business day
thereafter (i): (A) when a prospectus or any prospectus supplement or post-effective amendment to
the Registration Statement is filed; (B) with respect to the Registration Statement or any
post-effective amendment, when the same has become effective; (ii) of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement covering any or all of
the Registrable Securities or the initiation of any proceedings for that purpose; and (iii) of the
receipt by the Company of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose.
(e) Unless available to the Investor without charge through XXXXX, the SEC’s website or the
Company’s website, furnish to Investor, promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Company, one (1) copy of the Registration
Statement, each preliminary prospectus and the prospectus, and each amendment or supplement
thereto;
(f) Use all commercially reasonable efforts to (i) register and/or qualify the Registrable
Securities covered by the Registration Statement under such other securities or blue sky laws of
such jurisdictions as the Investor may reasonably request and in which significant volumes of
shares of Common Stock are traded, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and qualifications as
may be necessary to maintain the effectiveness thereof at all times during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations and qualification
in effect at all times during the Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions:
provided, however, that the Company shall not be required in connection therewith
or as a condition thereto to (A) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(f), (B) subject itself to general taxation
in any such jurisdiction, (C) file a general consent to service of process in any such
jurisdiction, (D) provide any undertakings that cause more than nominal expense or burden to the
Company or (E) make any change in its charter or by-laws or any then existing contracts, which in
each case the Board of Directors of the Company determines to be contrary to the best interests of
the Company and its stockholders;
(g) As promptly as practicable after becoming aware of such event, notify the Investor of the
happening of any event of which the Company has knowledge, as a result of which the prospectus
included in the Registration Statement, as then in effect, includes any untrue statement of a
material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading (“Registration Default”), and promptly prepare a supplement or amendment to the
Registration Statement or other appropriate filing with the SEC to correct such untrue statement or
omission, and take any other commercially reasonable steps to cure the Registration Default, and,
unless available to the Investor without charge through XXXXX, the
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SEC’s website or the Company’s website, deliver a number of copies of such supplement or amendment
to the Investor as the Investor may reasonably request.
(h) [INTENTIONALLY OMITTED];
(i) Use its commercially reasonable efforts, if eligible, either to (i) cause all the
Registrable Securities covered by the Registration Statement to be listed on a national securities
exchange and on each additional national securities exchange on which securities of the same class
or series issued by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure designation of all
the Registrable Securities covered by the Registration Statement as a National Association of
Securities Dealers Automated Quotations System (“Nasdaq”) security within the meaning of Rule
11Aa2-1 of the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
the quotation of the Registrable Securities on the Nasdaq Capital Market; or if, despite the
Company’s commercially reasonable efforts to satisfy the preceding clause (i) or (ii), the Company
is unsuccessful in doing so, to use its commercially reasonable efforts to secure authorization of
the Financial Industry Regulatory Authority (“FINRA”) and quotation for such Registrable Securities
on the over-the-counter bulletin board and, without limiting the generality of the foregoing;
(j) Provide a transfer agent for the Registrable Securities not later than the Subscription
Date under the Purchase Agreement;
(k) Cooperate with the Investor to facilitate the timely preparation and delivery of
certificates for the Registrable Securities to be offered pursuant to the Registration Statement
and enable such certificates for the Registrable Securities to be in such denominations or amounts
as the case may be, as the Investor may reasonably request and registration in such names as the
Investor may request; and, within five (5) business days after a Registration Statement which
includes Registrable Securities is ordered effective by the SEC, the Company shall deliver, and
shall cause legal counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Investor) an appropriate instruction and opinion of such
counsel, if so required by the Company’s transfer agent; and
(l) Take all other commercially reasonable actions necessary to expedite and facilitate
distribution to the Investor of the Registrable Securities pursuant to the Registration Statement.
(a) It shall be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable Securities of the Investor
that the Investor shall timely furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of the
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Registrable Securities held by it, as shall be reasonably required to effect the registration of
such Registrable Securities and shall timely execute such documents in connection with such
registration as the Company may reasonably request.
(b) The Investor by such Investor’s 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 the Registration Statement hereunder; and
(c) The Investor agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3(d)(ii) or (iii) or 3(g) above, the Investor will
immediately discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until the Investor receives the copies of the
supplemented or amended prospectus contemplated by Section 3(d)(ii) or (iii) or 3(g) and, if so
directed by the Company, the Investor shall deliver to the Company (at the expense of the Company)
or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor’s
possession, of the prospectus covering such Registrable Securities current at the time of receipt
of such notice.
(a) To the extent permitted by law, the Company will indemnify and hold harmless, the
Investor, the directors, if any, of such Investor, the officers, if any, of such Investor, each
person, if any, who controls the Investor within the meaning of the Securities Act or the Exchange
Act (each, an “Indemnified Person”), against any losses, claims, damages, liabilities or expenses
(joint or several) incurred (collectively, “Claims”) to which any of them may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment thereof or 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, (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact necessary to make the statements
made therein, in the light of the circumstances under which the statements therein were made, not
misleading or (iii) any violation or alleged violation by the Company of
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the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the
Securities Act, the Exchange Act or any state securities law (the matters in the foregoing clauses
(i) through (iii) being collectively referred to as “Violations”). Subject to Section 6(b) hereof,
the Company shall reimburse the Investor, promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection
with investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) shall not (i) apply to any
Claims arising out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto, if such prospectus was timely made available by the
Company pursuant to Section 3(b) hereof; (ii) with respect to any preliminary prospectus, inure to
the benefit of any such person from whom the person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit of any person controlling
such person) if the untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; (iii) be available to the
extent such Claim is based on a failure of the Investor to deliver or cause to be delivered the
prospectus made available by the Company; or (iv) apply to amounts paid in settlement of any Claim
if such settlement is effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld. The Investor will indemnify the Company, its officers,
directors and agents (including legal counsel) against any claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information furnished in writing to
the Company, by or on behalf of the Investor, expressly for use in connection with the preparation
of the Registration Statement, subject to such limitations and conditions set forth in the previous
sentence.
(b) Promptly after receipt by an Indemnified Person under this Section 6 of notice of the
commencement of any action (including any governmental action), such Indemnified Person shall, if a
Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person, as
the case may be; provided, however, that an Indemnified Person shall have the right
to retain its own counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person and the indemnifying party would be
inappropriate due to actual or potential differing interests between such Indemnified Person and
any other party represented by such counsel in such proceeding. In such event, the Company shall
pay for only one separate legal counsel for the Investor selected by the Investor. The failure to
deliver written notice to the indemnifying party within a reasonable time of the commencement of
any such action shall not relieve such indemnifying party of any liability to the Indemnified
Person under this Section 6, except to the extent that the
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indemnifying party is prejudiced in its ability to defend such action. The indemnification required
by this Section 6 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred and is due and
payable.
(a) make and keep public information available, as those terms are understood and defined in
Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act for so long as the Company remains subject to such requirements,
and the filing of such reports is required for sales under Rule 144;
(c) furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon
request, (i) a written statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act, (ii) unless available to the
Investor without charge through XXXXX, the SEC’s website or the Company’s website, a copy of the
most recent annual or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested to permit the
Investors to sell such securities pursuant to Rule 144 without registration; and
(d) at the request of any Investor of Registrable Securities, give its Transfer Agent
instructions (supported by an opinion of Company counsel, if required or requested by the Transfer
Agent) to the effect that, upon the Transfer Agent’s receipt from such Investor of:
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(i) | a certificate (a “Rule 144 Certificate”) certifying (A) that such Investor has held the shares of Registrable Securities which the Investor proposes to sell (the “Securities Being Sold”) for a period of not less than (1) year and (B) as to such other matters as may be appropriate in accordance with Rule 144 under the Securities Act, and | |
(ii) | an opinion of counsel acceptable to the Company (for which purposes it is agreed that the initial Investor’s counsel shall be deemed acceptable if such opinion is not given by Company counsel) that, based on the Rule 144 Certificate, Securities Being Sold may be sold pursuant to the provisions of Rule 144, even in the absence of an effective Registration Statement, |
the Transfer Agent is to effect the transfer of the Securities Being Sold and issue to the buyer(s)
or transferee(s) thereof one or more stock certificates representing the transferred Securities
Being Sold without any restrictive legend and without recording any restrictions on the
transferability of such shares on the Transfer Agent’s books and records (except to the extent any
such legend or restriction results from facts other than the identity of the Investor, as the
seller or transferor thereof, or the status, including any relevant legends or restrictions, of the
shares of the Securities Being Sold while held by the Investor). If the Transfer Agent requires any
additional documentation at the time of the transfer, the Company shall deliver or cause to be
delivered all such reasonable additional documentation as may be necessary to effectuate the
issuance of an unlegended certificate.
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upon, and shall inure to the benefit of, the undersigned parties and their successors.
(h) Governing Law. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of New York without regard to the principles of conflicts of law. Each of the
Company and Investor hereby submit to the exclusive jurisdiction of the United States Federal and
state courts located in New York with respect to any dispute arising under this Agreement, the
agreements entered into in connection herewith or the transactions contemplated hereby or thereby.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first above written.
COMPANY: UFOOD RESTAURANT GROUP, INC. |
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By: | ||||
Name: | /s/ Xxxxxxx X. Xxxxxxx | |||
Title: | President / COO |