REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2 Registration Rights
EXHIBIT
B
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of September 29, 2006, among Chembio Diagnostics,
Inc.,
a Nevada corporation (the “Company”),
and
the purchasers signatory hereto (each such purchaser is a “Purchaser”
and
collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated
as of the
date hereof among the Company and the Purchasers (the “Purchase
Agreement”).
The
Company and the Purchasers hereby agree as follows:
1.
Definitions
Capitalized
terms used and not otherwise defined herein that are defined in the
Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement.
As used
in this Agreement, the following terms shall have the following
meanings:
“Advice”
shall
have the meaning set forth in Section 6(d).
“Effectiveness
Date”
means,
with respect to the initial Registration Statement required to be filed
hereunder, the 120th
calendar
day following the date hereof (150th
calendar
day following the date hereof in the event of a full review by the
Commission of
the initial Registration Statement) and, with respect to any additional
Registration Statements which may be required pursuant to Section 3(c),
the
60th
calendar
day following the date on which the Company first knows, or reasonably
should
have known, that such additional Registration Statement is required
hereunder;
provided,
however,
that in
the event the Company is notified by the Commission that one of the
above
Registration Statements will not be reviewed or is no longer subject
to further
review and comments, the Effectiveness Date as to such Registration
Statement
shall be the fifth Trading Day following the date on which the Company
is so
notified if such date precedes the dates required above.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Event”
shall
have the meaning set forth in Section 2(b).
“Event
Date”
shall
have the meaning set forth in Section 2(b).
“Filing
Date”
means,
with respect to the initial Registration Statement required hereunder,
the
45th
calendar
day following the date hereof and, with respect to any additional Registration
Statements which may be required pursuant to Section 3(c), the 15th
day
following the date on which the Company first knows, or reasonably
should have
known that such additional Registration Statement is required hereunder.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Losses”
shall
have the meaning set forth in Section 5(a).
“Plan
of Distribution”
shall
have the meaning set forth in Section 2(a).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted
from a
prospectus filed as part of an effective registration statement in
reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering
of any
portion of the Registrable Securities covered by a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to
be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means,
as of the date in question, (i) all of the shares of Common Stock issuable
upon
conversion in full of the shares of Preferred Stock, (ii) all shares
of Common
Stock issuable as dividends on the Preferred Stock assuming all dividend
payments are made in shares of Common Stock and the Preferred Stock
is held for
at least 3 years, (iii) all Warrant Shares, (iv) any securities issued
or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing and (v) any additional
shares
issuable in connection with any anti-dilution provisions associated
with the
Preferred Stock and Warrants (in each case, without giving effect to
any
limitations on conversion set forth in the Certificate of Designation
or
limitations on exercise set forth in the Warrant).
“Registration
Statement”
means
the registration statements required to be filed hereunder and any
additional
registration statements contemplated by Section 3(c), including (in
each case)
the Prospectus, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits
thereto,
and all material incorporated by reference or deemed to be incorporated
by
reference in such registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act,
as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose
and
effect as such Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act,
as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same purpose
and
effect as such Rule.
“Selling
Shareholder Questionnaire”
shall
have the meaning set forth in Section 3(a).
2.
Shelf
Registration
(a)
On or
prior to each Filing Date, the Company shall prepare and file with
the
Commission a “Shelf” Registration Statement covering the resale of 130% of the
Registrable Securities on such Filing Date for an offering to be made
on a
continuous basis pursuant to Rule 415. The Registration Statement shall
be on
Form S-3 (except if the Company is not then eligible to register for
resale the
Registrable Securities on Form S-3, in which case such registration
shall be on
another appropriate form in accordance herewith, such as Form SB-2)
and shall
contain (unless otherwise directed by the Holders) substantially the
“Plan
of Distribution”
attached hereto as Annex
A.
Subject
to the terms of this Agreement, the Company shall use its best efforts
to cause
the Registration Statement to be declared effective under the Securities
Act as
promptly as possible after the filing thereof, but in any event prior
to the
applicable Effectiveness Date, and shall use its best efforts to keep
such
Registration Statement continuously effective under the Securities
Act until all
Registrable Securities covered by such Registration Statement have
been sold or
may be sold without volume restrictions pursuant to Rule 144(k) as
determined by
the counsel to the Company pursuant to a written opinion letter to
such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders (the “Effectiveness
Period”).
The
Company shall telephonically request effectiveness of a Registration
Statement
as of 5:00 pm Eastern Time on a Trading Day. The Company shall immediately
notify the Holders via facsimile of the effectiveness of a Registration
Statement on the same Trading Day that the Company telephonically confirms
effectiveness with the Commission, which shall be the date requested
for
effectiveness of a Registration Statement. The Company shall, by 9:30
am Eastern
Time on the Trading Day after the Effective Date (as defined in the
Purchase
Agreement), file a final Prospectus with the Commission as required
by Rule 424.
Failure to so notify the Holder within 1 Trading Day of such notification
of
effectiveness or failure to file a final Prospectus as aforesaid shall
be deemed
an Event under Section 2(b).
(b)
If:
(i) a Registration Statement is not filed on or prior to its Filing
Date (if the
Company files a Registration Statement without affording the Holders
the
opportunity to review and comment on the same as required by Section
3(a), the
Company shall not be deemed to have satisfied this clause (i)), or
(ii) the
Company fails to file with the Commission a request for acceleration
in
accordance with Rule 461 promulgated under the Securities Act, within
five
Trading Days of the date that the Company is notified (orally or in
writing,
whichever is earlier) by the Commission that a Registration Statement
will not
be “reviewed,” or not subject to further review, or (iii) prior to its
Effectiveness Date, the Company fails to file a pre-effective amendment
and
otherwise respond in writing to comments made by the Commission in
respect of
such Registration Statement within 20 calendar days after the receipt
of
comments by or notice from the Commission that such amendment is required
in
order for a Registration Statement to be declared effective, or (iv)
a
Registration Statement filed or required to be filed hereunder is not
declared
effective by the Commission by its Effectiveness Date, or (v) after
the
Effectiveness Date, a Registration Statement ceases for any reason
to remain
continuously effective as to all Registrable Securities for which it
is required
to be effective, or the Holders are not permitted to utilize the Prospectus
therein to resell such Registrable Securities for 10 consecutive calendar
days
but no more than an aggregate of 15 calendar days during any 12-month
period
(which need not be consecutive Trading Days) (any such failure or breach
being
referred to as an “Event”,
and
for purposes of clause (i) or (iv) the date on which such Event occurs,
or for
purposes of clause (ii) the date on which such five Trading Day period
is
exceeded, or for purposes of clause (iii) the date which such 20 calendar
day
period is exceeded, or for purposes of clause (v) the date on which
such 10 or
15 calendar day period, as applicable, is exceeded being referred to
as
“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 applicable Event is cured, the Company shall pay to each
Holder an
amount in cash, as partial liquidated damages and not as a penalty,
equal to
1.5% (1% as to an Event caused solely under clause (i) above) of the
aggregate
purchase price paid by such Holder pursuant to the Purchase Agreement
for any
Registrable Securities (including the Preferred Stock overlying such
Registrable
Securities) then held by such Holder. The parties agree that (1) the
Company
will not be liable for liquidated damages under this Agreement with
respect to
any Warrants or Warrant Shares and (2) the maximum aggregate liquidated
damages
payable to a Holder under this Agreement shall be 9% of the aggregate
Subscription Amount paid by such Holder pursuant to the Purchase Agreement.
If
the Company fails to pay any partial liquidated damages pursuant to
this Section
in full within seven days after the date payable, the Company will
pay interest
thereon at a rate of 18% per annum (or such lesser maximum amount that
is
permitted to be paid by applicable law) to the Holder, accruing daily
from the
date such partial liquidated damages are due until such amounts, plus
all such
interest thereon, are paid in full. The partial 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.
3.
Registration
Procedures
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less
than three Trading Days prior to the filing of each Registration Statement
or
any related Prospectus or any amendment or supplement thereto (including
any
document that would be incorporated or deemed to be incorporated therein
by
reference), the Company shall, (i) furnish to each Holder copies of
all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review
of such
Holders, and (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall
be necessary,
in the reasonable opinion of respective counsel to conduct a reasonable
investigation within the meaning of the Securities Act. The Company
shall not
file the Registration Statement or any such Prospectus or any amendments
or
supplements thereto to which the Holders of a majority of the Registrable
Securities shall reasonably object in good faith, provided that, the
Company is
notified of such objection in writing no later than 3 Trading Days
after the
Holders have been so furnished copies of such documents. Each Holder
agrees to
furnish to the Company a completed Questionnaire in the form attached
to this
Agreement as Annex B (a “Selling
Shareholder Questionnaire”)
not
less than two Trading Days prior to the Filing Date or by the end of
the fourth
Trading Day following the date on which such Holder receives draft
materials in
accordance with this Section.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to a Registration Statement and the Prospectus used in
connection
therewith as may be necessary to keep a Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act
all of the
Registrable Securities; (ii) cause the related Prospectus to be amended
or
supplemented by any required Prospectus supplement (subject to the
terms of this
Agreement), and as so supplemented or amended to be filed pursuant
to Rule 424;
(iii) respond as promptly as reasonably possible to any comments received
from
the Commission with respect to a Registration Statement or any amendment
thereto
and as promptly as reasonably possible provide the Holders true and
complete
copies of all correspondence from and to the Commission relating to
a
Registration Statement; and (iv) comply in all material respects with
the
provisions of the Securities Act and the Exchange Act with respect
to the
disposition of all Registrable Securities covered by a Registration
Statement
during the applicable period in accordance (subject to the terms of
this
Agreement) with the intended methods of disposition by the Holders
thereof set
forth in such Registration Statement as so amended or in such Prospectus
as so
supplemented.
(c) If
during
the Effectiveness Period, the number of Registrable Securities at any
time
exceeds 85% of the number of shares of Common Stock then registered
in a
Registration Statement, then the Company shall file as soon as reasonably
practicable but in any case prior to the applicable Filing Date, an
additional
Registration Statement covering the resale by the Holders of not less
than 130%
of the number of such Registrable Securities.
(d) Notify
the Holders of Registrable Securities to be sold (which notice shall,
pursuant
to clauses (ii) through (vi) hereof, be accompanied by an instruction
to suspend
the use of the Prospectus until the requisite changes have been made)
as
promptly as reasonably possible (and, in the case of (i)(A) below,
not less than
five Trading Days prior to such filing) and (if requested by any such
Person)
confirm such notice in writing no later than one Trading Day following
the day
(i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed; (B)
when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing
on such
Registration Statement (the Company shall provide true and complete
copies
thereof and all written responses thereto to each of the Holders);
and (C) with
respect to a Registration Statement or any post-effective amendment,
when the
same has become effective; (ii) of any request by the Commission or
any other
Federal or state governmental authority for amendments or supplements
to a
Registration Statement or Prospectus or for additional information;
(iii) of the
issuance by the Commission or any other federal or state governmental
authority
of any stop order suspending the effectiveness of a Registration Statement
covering any or all of the Registrable Securities or the initiation
of any
Proceedings for that purpose; (iv) of the receipt by the Company of
any
notification with respect to the suspension of the qualification or
exemption
from qualification of any of the Registrable Securities for sale in
any
jurisdiction, or the initiation or threatening of any Proceeding for
such
purpose; (v) of the occurrence of any event or passage of time that
makes the
financial statements included in a Registration Statement ineligible
for
inclusion therein or any statement made in a Registration Statement
or
Prospectus or any document incorporated or deemed to be incorporated
therein by
reference untrue in any material respect or that requires any revisions
to a
Registration Statement, Prospectus or other documents so that, in the
case of a
Registration Statement or the Prospectus, as the case may be, it will
not
contain any untrue statement of a material fact or omit to state any
material
fact required to be stated therein or necessary to make the statements
therein,
in light of the circumstances under which they were made, not misleading;
and
(vi) the occurrence or existence of any pending corporate development
with
respect to the Company that the Company believes may be material and
that, in
the determination of the Company, makes it not in the best interest
of the
Company to allow continued availability of the Registration Statement
or
Prospectus; provided that any and all of such information shall remain
confidential to each Holder until such information otherwise becomes
public,
unless disclosure by a Holder is required by law; provided,
further,
notwithstanding each Holder’s agreement to keep such information confidential,
the Holders make no acknowledgement that any such information is material,
non-public information.
(e) Use
its
best efforts to avoid the issuance of, or, if issued, obtain the withdrawal
of
(i) any order suspending the effectiveness of a Registration Statement,
or (ii)
any suspension of the qualification (or exemption from qualification)
of any of
the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(f) Furnish
to each Holder, without charge, at least one conformed copy of each
such
Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference to the extent requested by such Person,
and
all exhibits to the extent requested by such Person (including those
previously
furnished or incorporated by reference) promptly after the filing of
such
documents with the Commission.
(g) Promptly
deliver to each Holder, without charge, as many copies of the Prospectus
or
Prospectuses (including each form of prospectus) and each amendment
or
supplement thereto as such Persons may reasonably request in connection
with
resales by the Holder of Registrable Securities. Subject to the terms
of this
Agreement, the Company hereby consents to the use of such Prospectus
and each
amendment or supplement thereto by each of the selling Holders in connection
with the offering and sale of the Registrable Securities covered by
such
Prospectus and any amendment or supplement thereto, except after the
giving of
any notice pursuant to Section 3(d).
(h) Prior
to
any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling
Holders
in connection with the registration or qualification (or exemption
from the
Registration or qualification) of such Registrable Securities for the
resale by
the Holder under the securities or Blue Sky laws of such jurisdictions
within
the United States as any Holder reasonably requests in writing, to
keep each
registration or qualification (or exemption therefrom) effective during
the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that the
Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified, subject the Company to any material
tax in
any such jurisdiction where it is not then so subject or file a general
consent
to service of process in any such jurisdiction.
(i) If
NASDR
Rule 2710 requires any broker-dealer to make a filing prior to executing
a sale
by a Holder, make an Issuer Filing with the NASDR, Inc. Corporate Financing
Department pursuant to NASDR Rule 2710(b)(10)(A)(i) and respond within
five
Trading Days to any comments received from NASDR in connection therewith,
and
pay the filing fee required in connection therewith.
(j) If
requested by the Holders, cooperate with the Holders to facilitate
the timely
preparation and delivery of certificates representing Registrable Securities
to
be delivered to a transferee pursuant to a Registration Statement,
which
certificates shall be free, to the extent permitted by the Purchase
Agreement,
of all restrictive legends, and to enable such Registrable Securities
to be in
such denominations and registered in such names as any such Holders
may
reasonably request.
(k) Upon
the
occurrence of any event contemplated by this Section 3, as promptly
as
reasonably possible under the circumstances taking into account the
Company’s
good faith assessment of any adverse consequences to the Company and
its
stockholders of the premature disclosure of such event, prepare a supplement
or
amendment, including a post-effective amendment, to a Registration
Statement or
a supplement to the related Prospectus or any document incorporated
or deemed to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither a Registration Statement nor
such
Prospectus will contain an untrue statement of a material fact or omit
to state
a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they
were made,
not misleading. If
the
Company notifies the Holders in accordance with clauses (ii) through
(vi) of
Section 3(d) above to suspend the use of any Prospectus until the requisite
changes to such Prospectus have been made, then the Holders shall suspend
use of
such Prospectus. The Company will use its best efforts to ensure that
the use of
the Prospectus may be resumed as promptly as is practicable. The Company
shall
be entitled to exercise its right under this Section 3(j) to suspend
the
availability of a Registration Statement and Prospectus, subject to
the payment
of partial liquidated damages pursuant to Section 2(b), for a period
not to
exceed 60 days (which need not be consecutive days) in any 12 month
period.
(l) Comply
with all applicable rules and regulations of the Commission.
(m) The
Company may require each selling Holder to furnish to the Company a
certified
statement as to the number of shares of Common Stock beneficially owned
by such
Holder and, if required by the Commission, the person thereof that
has voting
and dispositive control over the Shares. During any periods that the
Company is
unable to meet its obligations hereunder with respect to the registration
of the
Registrable Securities solely because any Holder fails to furnish such
information within three Trading Days of the Company’s request, any liquidated
damages that are accruing at such time shall be tolled and any Event
that may
otherwise occur solely because of such delay shall be suspended, until
such
information is delivered to the Company.
4.
Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with
this
Agreement by the Company shall be borne by the Company whether or not
any
Registrable Securities are sold pursuant to the Registration Statement.
The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without
limitation,
fees and expenses (A) with respect to filings required to be made with
the
Trading Market on which the Common Stock is then listed for trading,
(B) in
compliance with applicable state securities or Blue Sky laws reasonably
agreed
to by the Company in writing (including, without limitation, fees and
disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities and determination
of
the eligibility of the Registrable Securities for investment under
the laws of
such jurisdictions as reasonably requested by the Holders) and (C)
if not
previously paid by the Company in connection with an Issuer Filing,
with respect
to any filing that may be required to be made by any broker through
which a
Holder intends to make sales of Registrable Securities with NASD Regulation,
Inc. pursuant to the NASD Rule 2710, so long as the broker is receiving
no more
than a customary brokerage commission in connection with such sale,
(ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities), (iii) messenger, telephone
and
delivery expenses, (iv) fees and disbursements of counsel for the Company,
(v)
Securities Act liability insurance, if the Company so desires such
insurance,
and (vi) fees and expenses of all other Persons retained by the Company
in
connection with the consummation of the transactions contemplated by
this
Agreement. In addition, the Company shall be responsible for all of
its internal
expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement (including, without limitation, all
salaries and
expenses of its officers and employees performing legal or accounting
duties),
the expense of any annual audit and the fees and expenses incurred
in connection
with the listing of the Registrable Securities on any securities exchange
as
required hereunder. In no event shall the Company be responsible for
any broker
or similar commissions or, except to the extent provided for in the
Transaction
Documents, any legal fees or other costs of the Holders.
5.
Indemnification
(a)
Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, members, partners,
agents,
brokers (including brokers who offer and sell Registrable Securities
as
principal as a result of a pledge or any failure to perform under a
margin call
of Common Stock), investment advisors and employees (and any other
Persons with
a functionally equivalent role of a Person holding such titles, notwithstanding
a lack of such title or any other title) of each of them, each Person
who
controls any such Holder (within the meaning of Section 15 of the Securities
Act
or Section 20 of the Exchange Act) and the officers, directors, members,
shareholders, partners, agents and employees (and any other Persons
with a
functionally equivalent role of a Person holding such titles, notwithstanding
a
lack of such title or any other title) of each such controlling Person,
to the
fullest extent permitted by applicable law, from and against any and
all losses,
claims, damages, liabilities, costs (including, without limitation,
reasonable
attorneys’ fees) and expenses (collectively, “Losses”),
as
incurred, arising out of or relating to (1) any untrue or alleged untrue
statement of a material fact contained in a Registration Statement,
any
Prospectus or any form of prospectus or in any amendment or supplement
thereto
or in any preliminary prospectus, or arising out of or relating to
any omission
or alleged omission of a material fact required to be stated therein
or
necessary to make the statements therein (in the case of any Prospectus
or form
of prospectus or supplement thereto, in light of the circumstances
under which
they were made) not misleading, or (2) any violation or alleged violation
by the
Company of the Securities Act, Exchange Act or any state securities
law, or any
rule or regulation thereunder, in connection with the performance of
its
obligations under this Agreement, except to the extent, but only to
the extent,
that (i) such untrue statements or omissions are based solely upon
information
regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates
to
such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such
Holder
expressly for use in a Registration Statement, such Prospectus or such
form of
Prospectus or in any amendment or supplement thereto (it being understood
that
the Holder has approved Annex A hereto for this purpose) or (ii) in
the case of
an occurrence of an event of the type specified in Section 3(d)(iii)-(vi),
the
use by such Holder of an outdated or defective Prospectus after the
Company has
notified such Holder in writing that the Prospectus is outdated or
defective and
prior to the receipt by such Holder of the Advice contemplated in Section
6(d).
The Company shall notify the Holders promptly of the institution, threat
or
assertion of any Proceeding arising from or in connection with the
transactions
contemplated by this Agreement of which the Company is aware.
(b)
Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless
the
Company, its directors, officers, agents and employees, each Person
who controls
the Company (within the meaning of Section 15 of the Securities Act
and Section
20 of the Exchange Act), and the directors, officers, agents or employees
of
such controlling Persons, to the fullest extent permitted by applicable
law,
from and against all Losses, as incurred, to the extent arising out
of or based
solely upon: (x) such Holder’s failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue or alleged untrue
statement
of a material fact contained in any Registration Statement, any Prospectus,
or
any form of prospectus, or in any amendment or supplement thereto or
in any
preliminary prospectus, or arising out of or relating to any omission
or alleged
omission of a material fact required to be stated therein or necessary
to make
the statements therein not misleading (i) to the extent, but only to
the extent,
that such untrue statement or omission is contained in any information
so
furnished in writing by such Holder to the Company specifically for
inclusion in
such Registration Statement or such Prospectus or (ii) to the extent
that (1)
such untrue statements or omissions are based solely upon information
regarding
such Holder furnished in writing to the Company by such Holder expressly
for use
therein, or to the extent that such information relates to such Holder
or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly
for use in
the Registration Statement (it being understood that the Holder has
approved
Annex A hereto for this purpose), such Prospectus or such form of Prospectus
or
in any amendment or supplement thereto or (2) in the case of an occurrence
of an
event of the type specified in Section 3(d)(ii)-(vi), the use by such
Holder of
an outdated or defective Prospectus after the Company has notified
such Holder
in writing that the Prospectus is outdated or defective and prior to
the receipt
by such Holder of the Advice contemplated in Section 6(d). In no event
shall the
liability of any selling Holder hereunder be greater in amount than
the dollar
amount of the net proceeds received by such Holder upon the sale of
the
Registrable Securities giving rise to such indemnification
obligation.
(c)
Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled
to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity
is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall have the right to assume
the defense
thereof, including the employment of counsel reasonably satisfactory
to the
Indemnified Party and the payment of all fees and expenses incurred
in
connection with defense thereof; provided, that the failure of any
Indemnified
Party to give such notice shall not relieve the Indemnifying Party
of its
obligations or liabilities pursuant to this Agreement, except (and
only) to the
extent that it shall be finally determined by a court of competent
jurisdiction
(which determination is not subject to appeal or further review) that
such
failure shall have prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in
any such
Proceeding and to participate in the defense thereof, but the fees
and expenses
of such counsel shall be at the expense of such Indemnified Party or
Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and
expenses; (2) the Indemnifying Party shall have failed promptly to
assume the
defense of such Proceeding and to employ counsel reasonably satisfactory
to such
Indemnified Party in any such Proceeding; or (3) the named parties
to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall reasonably
believe
that a material conflict of interest is likely to exist if the same
counsel were
to represent such Indemnified Party and the Indemnifying Party (in
which case,
if such Indemnified Party notifies the Indemnifying Party in writing
that it
elects to employ separate counsel at the expense of the Indemnifying
Party, the
Indemnifying Party shall not have the right to assume the defense thereof
and
the reasonable fees and expenses of one separate counsel shall be at
the expense
of the Indemnifying Party). The Indemnifying Party shall not be liable
for any
settlement of any such Proceeding effected without its written consent,
which
consent shall not be unreasonably withheld. No Indemnifying Party shall,
without
the prior written consent of the Indemnified Party, effect any settlement
of any
pending Proceeding in respect of which any Indemnified Party is a party,
unless
such settlement includes an unconditional release of such Indemnified
Party from
all liability on claims that are the subject matter of such
Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of
the
Indemnified Party (including reasonable fees and expenses to the extent
incurred
in connection with investigating or preparing to defend such Proceeding
in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof
to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and
expenses
applicable to such actions for which such Indemnified Party is not
entitled to
indemnification hereunder, determined based upon the relative faults
of the
parties.
(d)
Contribution.
If the
indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified
Party or insufficient to hold an Indemnified Party harmless for any
Losses, then
each Indemnifying Party shall contribute to the amount paid or payable
by such
Indemnified Party, in such proportion as is appropriate to reflect
the relative
fault of the Indemnifying Party and Indemnified Party in connection
with the
actions, statements or omissions that resulted in such Losses as well
as any
other relevant equitable considerations. The relative fault of such
Indemnifying
Party and Indemnified Party shall be determined by reference to, among
other
things, whether any action in question, including any untrue or alleged
untrue
statement of a material fact or omission or alleged omission of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent
such
action, statement or omission. The amount paid or payable by a party
as a result
of any Losses shall be deemed to include, subject to the limitations
set forth
in this Agreement, any reasonable attorneys’ or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to
the extent
such party would have been indemnified for such fees or expenses if
the
indemnification provided for in this Section was available to such
party in
accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation
or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall
be required
to contribute, in the aggregate, any amount in excess of the amount
by which the
net proceeds actually received by such Holder from the sale of the
Registrable
Securities subject to the Proceeding exceeds the amount of any damages
that such
Holder has otherwise been required to pay by reason of such untrue
or alleged
untrue statement or omission or alleged omission, except in the case
of fraud by
such Holder.
The
indemnity and contribution agreements contained in this Section are
in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6.
Miscellaneous
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, each Holder or the Company, as the case may be,
in
addition to being entitled to exercise all rights granted by law and
under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company and each
Holder
agree that monetary damages would not provide adequate compensation
for any
losses incurred by reason of a breach by it of any of the provisions
of this
Agreement and hereby further agrees that, in the event of any action
for
specific performance in respect of such breach, it shall waive the
defense that
a remedy at law would be adequate.
(b) No
Piggyback on Registrations.
Except
as set forth on Schedule
6(b)
attached
hereto, neither the Company nor any of its security holders (other
than the
Holders in such capacity pursuant hereto) may include securities of
the Company
in the Registration Statement other than the Registrable Securities.
The Company
shall not file any other registration statements until the initial
Registration
Statement required hereunder is declared effective by the Commission,
provided
that this Section 6(b) shall not prohibit the Company from filing amendments
to
registration statements already filed.
(c) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus
delivery
requirements of the Securities Act as applicable to it in connection
with sales
of Registrable Securities pursuant to the Registration Statement.
(d) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that,
upon
receipt of a notice from the Company of the occurrence of any event
of the kind
described in Section 3(d), such Holder will forthwith discontinue disposition
of
such Registrable Securities under a Registration Statement until such
Holder’s
receipt of the copies of the supplemented Prospectus and/or amended
Registration
Statement, or until it is advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and,
in either
case, has received copies of any additional or supplemental filings
that are
incorporated or deemed to be incorporated by reference in such Prospectus
or
Registration Statement. The Company will use its best efforts to ensure
that the
use of the Prospectus may be resumed as promptly as it practicable.
The Company
agrees and acknowledges that any periods during which the Holder is
required to
discontinue the disposition of the Registrable Securities hereunder
shall be
subject to the provisions of Section 2(b).
(e) Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective
Registration
Statement covering all of the Registrable Securities and the Company
shall
determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others
under the
Securities Act of any of its equity securities, other than on Form
S-4 or Form
S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with
any
acquisition of any entity or business or equity securities issuable
in
connection with the stock option or other employee benefit plans, then
the
Company shall send to each Holder a written notice of such determination
and, if
within fifteen 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 such Registrable Securities such Holder requests to
be
registered; provided, that, the Company shall not be required to register
any
Registrable Securities pursuant to this Section 6(e) that are eligible
for
resale pursuant to Rule 144(k) promulgated under the Securities Act
or that are
the subject of a then effective Registration Statement.
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence,
may not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in
writing and
signed by the Company and Holders holding at least 81% of the then
Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart
from
the provisions hereof with respect to a matter that relates exclusively
to the
rights of Holders and that does not directly or indirectly affect the
rights of
other Holders may be given by Holders of all of the Registrable Securities
to
which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(g) Notices.
Any and
all notices or other communications or deliveries required or permitted
to be
provided hereunder shall be delivered as set forth in the Purchase
Agreement.
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit
of each
Holder. The Company may not assign its rights or obligations hereunder
without
the prior written consent of all of the Holders of the then Registrable
Securities. Each Holder may assign their respective rights hereunder
in the
manner and to the Persons as permitted under the Purchase
Agreement.
(i) No
Inconsistent Agreements.
Neither
the Company nor any of its subsidiaries has entered, as of the date
hereof, nor
shall the Company or any of its subsidiaries, on or after the date
of this
Agreement, enter into any agreement with respect to its securities,
that would
have the effect of impairing the rights granted to the Holders in this
Agreement
or otherwise conflicts with the provisions hereof. Except as set forth
on
Schedule
6(i),
neither
the Company nor any of its subsidiaries has previously entered into
any
agreement granting any registration rights with respect to any of its
securities
to any Person that have not been satisfied in full.
(j) Execution
and 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 the
other party, it being understood that both 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.
(k) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be determined with the provisions of the Purchase
Agreement.
(l) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(m) 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.
(n) Headings.
The
headings in this Agreement are for convenience of reference only and
shall not
limit or otherwise affect the meaning hereof.
(o) Independent
Nature of Holders’ Obligations and Rights.
The
obligations of each Holder hereunder are several and not joint with
the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder
hereunder.
Nothing contained herein or in any other agreement or document delivered
at any
closing, and no action taken by any Holder pursuant hereto or thereto,
shall be
deemed to constitute the Holders as a partnership, an association,
a joint
venture or any other kind of entity, or create a presumption that the
Holders
are in any way acting in concert with respect to such obligations or
the
transactions contemplated by this Agreement. Each Holder shall be entitled
to
protect and enforce its rights, including without limitation the rights
arising
out of this Agreement, and it shall not be necessary for any other
Holder to be
joined as an additional party in any proceeding for such purpose.
********************
IN
WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as
of the date first written above.
|
|
|
By:__________________________________________
Name:
Title:
|
[SIGNATURE
PAGE OF HOLDERS FOLLOWS]
[HOLDER’S
SIGNATURE PAGE TO CEMI RRA]
Name
of
Holder: __________________________
Signature
of Authorized Signatory of Holder:
__________________________
Name
of
Authorized Signatory: _________________________
Title
of
Authorized Signatory: __________________________
[SIGNATURE
PAGES CONTINUE]
ANNEX
A
Plan
of Distribution
Each
Selling Stockholder (the “Selling
Stockholders”)
of the
common stock and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their shares of common stock
on the
[principal Trading Market] or any other stock exchange, market or trading
facility on which the shares are traded or in private transactions.
These sales
may be at fixed or negotiated prices. A Selling Stockholder 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 through an options exchange or otherwise;
|
|
·
|
a
combination of any such methods of sale;
or
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the
Securities
Act of 1933, as amended (the “Securities
Act”),
if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers
to
participate in sales. Broker-dealers may receive commissions or discounts
from
the Selling Stockholders (or, if any broker-dealer acts as agent for
the
purchaser of shares, from the purchaser) in amounts to be negotiated,
but,
except as set forth in a supplement to this Prospectus, in the case
of an agency
transaction not in excess of a customary brokerage commission in compliance
with
NASDR Rule 2440; and in the case of a principal transaction a markup
or markdown
in compliance with NASDR IM-2440.
In
connection with the sale of the common stock or interests therein,
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 Common
Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of the common stock short and deliver
these
securities to close out their short positions, or loan or pledge the
common
stock to broker-dealers that in turn may sell these securities. 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).
The
Selling Stockholders and any broker-dealers or agents that are involved
in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale
of the
shares purchased by them may be deemed to be underwriting commissions
or
discounts under the Securities Act. Each Selling Stockholder has informed
the
Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the Common Stock.
In no
event shall any broker-dealer receive fees, commissions and markups
which, in
the aggregate, would exceed eight percent (8%).
The
Company is required to pay certain fees and expenses incurred by the
Company
incident to the registration of the shares. The Company has agreed
to indemnify
the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery
requirements
of the Securities Act including Rule 172 thereunder. In addition, any
securities
covered by this prospectus which qualify for sale pursuant to Rule
144 under the
Securities Act may be sold under Rule 144 rather than under this prospectus.
There is no underwriter or coordinating broker acting in connection
with the
proposed sale of the resale shares by the Selling Stockholders.
We
agreed
to keep this prospectus effective until the earlier of (i) the date
on which the
shares may be resold by the Selling Stockholders without registration
and
without regard to any volume limitations by reason of Rule 144(k) under
the
Securities Act or any other rule of similar effect or (ii) all of the
shares
have been sold pursuant to this prospectus or Rule 144 under the Securities
Act
or any other rule of similar effect. The resale shares will be sold
only through
registered or licensed brokers or dealers if required under applicable
state
securities laws. In addition, in certain states, the resale shares
may not be
sold unless they have been registered or qualified for sale in the
applicable
state or an exemption from the registration or qualification requirement
is
available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person
engaged in
the distribution of the resale shares may not simultaneously engage
in market
making activities with respect to the common stock for the applicable
restricted
period, as defined in Regulation M, prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject
to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases
and
sales of shares of the common stock by the Selling Stockholders or
any other
person. We will make copies of this prospectus available to the Selling
Stockholders and have informed them of the need to deliver a copy of
this
prospectus to each purchaser at or prior to the time of the sale (including
by
compliance with Rule 172 under the Securities Act).
Annex
B
Selling
Securityholder Notice and Questionnaire
The
undersigned beneficial owner of common stock, par value $0.01 per share
(the
“Common
Stock”),
of
Chembio Diagnostics, Inc., a Nevada corporation (the “Company”),
(the
“Registrable
Securities”)
understands that the Company has filed or intends to file with the
Securities
and Exchange Commission (the “Commission”)
a
registration statement on Form [S-3 (the “Registration
Statement”)
for
the registration and resale under Rule 415 of the Securities Act of
1933, as
amended (the “Securities
Act”),
of
the Registrable Securities, in accordance with the terms of the Registration
Rights Agreement, dated as of September 29, 2006 (the “Registration
Rights Agreement”),
among
the Company and the Purchasers named therein. A copy of the Registration
Rights
Agreement is available from the Company upon request at the address
set forth
below. All capitalized terms not otherwise defined herein shall have
the
meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder
in the
Registration Statement and the related prospectus. Accordingly, holders
and
beneficial owners of Registrable Securities are advised to consult
their own
securities law counsel regarding the consequences of being named or
not being
named as a selling securityholder in the Registration Statement and
the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Securityholder”)
of
Registrable Securities hereby elects to include the Registrable Securities
owned
by it and listed below in Item 3 (unless otherwise specified under
such Item 3)
in the Registration Statement.
The
undersigned hereby provides the following information to the Company
and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
|
(a)
|
Full
Legal Name of Selling
Securityholder
|
|
(b)
|
Full
Legal Name of Registered Holder (if not the same as (a) above)
through
which Registrable Securities Listed in Item 3 below are
held:
|
|
(c)
|
Full
Legal Name of Natural Control Person (which means a natural
person who
directly or indirectly alone or with others has power to
vote or dispose
of the securities covered by the
questionnaire):
|
2.
Address for Notices to Selling Securityholder:
|
Telephone:
|
|
Fax:
|
|
Contact
Person:
|
3.
Beneficial Ownership of Registrable Securities:
|
(a)
|
Type
and Number of Registrable Securities beneficially owned (not
including the
Registrable Securities that are issuable pursuant to the
Purchase
Agreement):
|
4.
Broker-Dealer Status:
|
(a)
|
Are
you a broker-dealer?
|
Yes
No
|
(b)
|
If
“yes” to Section 4(a), did you receive your Registrable Securities
as
compensation for investment banking services to the
Company.
|
Yes
No
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
|
(c)
|
Are
you an affiliate of a
broker-dealer?
|
Yes
No
|
(d)
|
If
you are an affiliate of a broker-dealer, do you certify that
you bought
the Registrable Securities in the ordinary course of business,
and at the
time of the purchase of the Registrable Securities to be
resold, you had
no agreements or understandings, directly or indirectly,
with any person
to distribute the Registrable
Securities?
|
Yes
No
|
Note:
|
If
no, the Commission’s staff has indicated that you should be identified as
an underwriter in the Registration
Statement.
|
5.
Beneficial Ownership of Other Securities of the Company Owned by the
Selling
Securityholder.
Except
as set forth below in this Item 5, the undersigned is not the beneficial
or
registered owner of any securities of the Company other than the Registrable
Securities listed above in Item 3.
|
(a)
|
Type
and Amount of Other Securities beneficially owned by the
Selling
Securityholder:
|
6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates,
officers,
directors or principal equity holders (owners of 5% of more of the
equity
securities of the undersigned) has held any position or office or has
had any
other material relationship with the Company (or its predecessors or
affiliates)
during the past three years.
State
any
exceptions here:
The
undersigned agrees to promptly notify the Company of any inaccuracies
or changes
in the information provided herein that may occur subsequent to the
date hereof
at any time while the Registration Statement remains effective.
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 6 and the inclusion
of such
information in the Registration Statement and the related prospectus
and
any
amendments or supplements thereto.
The
undersigned understands that such information will be relied upon by
the Company
in connection with the preparation or amendment of the Registration
Statement
and the related prospectus.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused
this Notice
and Questionnaire to be executed and delivered either in person or
by its duly
authorized agent.
Dated:
Beneficial
Owner:
By:
Name:
Title:
PLEASE
FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE,
AND RETURN
THE ORIGINAL BY OVERNIGHT MAIL, TO:
