REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
This
Registration Rights Agreement ("Agreement"),
dated
as of September 15, 2006, is made by and between GLOBAL MATRECHS, INC., a
Delaware corporation ("Company"),
and
BRITTANY CAPITAL MANAGEMENT LTD, a Bahamian corporation (the "Subscriber").
RECITALS
WHEREAS,
upon the terms and subject to the conditions of the Private Equity Credit
Agreement (the "Equity
Credit Agreement"),
between the Subscriber and the Company, the Company has agreed to issue and
sell
to the Subscriber up to Fifteen Million Dollars ($15,000,000) of the common
stock of the Company ("Subscribed
Shares"),
$.01
par value per share (the "Common
Stock"),
and
WHEREAS,
to induce the Subscriber to execute and deliver the Equity Credit Agreement,
the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the "Securities
Act"),
and
applicable state securities laws with respect to the Subscribed Shares;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and the Subscriber hereby agree
as
follows:
1. DEFINITIONS.
(a)
As
used in this Agreement, the following terms shall have the following meaning:
(i)
"Potential
Material Event"
means
any of the following: (A) the possession by the Company of material information
not ripe for disclosure in a Registration Statement, which shall be evidenced
by
determinations in good faith by the Board of Directors of the Company that
disclosure of such information in the Registration Statement would be
detrimental to the business and affairs of the Company, or (B) any material
engagement or activity by the Company which would, in the good faith
determination of the Board of Directors of the Company, be adversely affected
by
disclosure in a Registration Statement at such time, which determination shall
be accompanied by a good faith determination by the Board of Directors of the
Company that the Registration Statement would be materially misleading absent
the inclusion of such information.
(ii)
"Prospectus"
means
the prospectus included in the Registration Statement (including, without
limitation, a prospects that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the prospectus, including post-effective
amendments, and all material incorporated by reference in such prospectus.
(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"
means
the Subscribed Shares.
(v)
"Registration
Statement"
means a
registration statement of the Company under the Securities Act.
(vi)
"Subscription
Date"
means
the date of this Agreement.
(vii)
"Subscriber"
has the
meaning set forth in the preamble to this Agreement.
(b)
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the Equity Credit Agreement.
2. REGISTRATION.
(A)
MANDATORY REGISTRATION. The Company shall prepare and file with the SEC, no
later than thirty (30) business days from the date of this Agreement
("Filing
Date"),
a
Registration Statement registering for distribution by the Subscriber pursuant
to Rule 457(o) of the Securities Act, 7,334,996 shares of Common Stock under
the
Equity Credit Agreement. Such Registration Statement shall state that, in
accordance with the Securities Act, it also covers such indeterminate number
of
additional shares of Common Stock as may become issuable to prevent dilution
resulting from stock splits or stock dividends.
(B)
TERMINATION. If the Registration Statement covering the Registrable Securities
required to be filed by the Company pursuant to Section
2(a)
hereof
is not declared effective within two hundred and seventy (270) days from the
Filing Date (the "Effective
Date"),
then
the commitment contained in the Equity Credit Agreement and in this Agreement
(the "Commitment")
shall
terminate.
3.
OBLIGATIONS
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 by the Filing Date, a Registration
Statement with respect to not less than the number of Registrable Securities
provided in Section
2(a)
above,
and, thereafter, use all diligent efforts to cause the Registration Statement
relating to the Registrable Securities to become effective the earlier of (i)
five (5) business days after notice from the SEC that the Registration Statement
may be declared effective, or (ii) the Effective Date, and keep the Registration
Statement effective at all times until the earliest of (A) the date that is
one
year after the completion of the last Closing Date under the Equity Credit
Agreement, (B) the date when the Subscriber may sell all Registrable Securities
under Rule 144 without volume limitations, or (C) the date the Subscriber 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;
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(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, during the Registration Period, and 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)
Permit a single firm of counsel designated by Subscriber to review the
Registration Statement and all amendments and supplements thereto a reasonable
period of time (but not less than three (3) business days) prior to their filing
with the SEC, and not file any document in a form to which such counsel
reasonably objects, it being understood that such review and objections shall
relate exclusively to matters in the Registration Statement or omitted therefrom
affecting any or all of the Equity Credit Agreement, Subscriber and the
Registrable Securities or compliance with the terms of this Agreement or the
other Transaction Documents;
(d)
Notify Subscriber and Subscriber's legal counsel identified to the Company
("Subscriber's
Counsel")
(and,
in the case of (i)(A) below, not less than five (5) business days prior to
such
filing) and (if requested by any such person) confirm such notice in writing
no
later than one (1) business day following the day (i): (A) when a prospectus
or
any prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) whenever the SEC notifies the Company
whether there will be a "review" of such Registration Statement; and (C) with
respect to the Registration Statement or any post-effective amendment, when
the
same has become effective; (ii) of any request by the SEC or any other Federal
or state governmental authority for amendments or supplements to the
Registration Statement or the prospectus or for additional information; (iii)
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; (iv) if at any time any of
the
representations or warranties of the Company contained in any agreement
contemplated hereby ceases to be true and correct in all material respects;
(v)
of the receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of
any
proceeding for such purpose; and (vi) of the occurrence of any event that to
the
knowledge of the Company makes any statement made in the Registration Statement
or the prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires any
revisions to the Registration Statement, the prospectus or other documents
so
that, in the case of the 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 the light of the circumstances under which they were
made, not misleading;
(e)
Furnish to Subscriber and Subscriber's Counsel, (i) 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, all correspondence
to, with, or from the SEC and (ii) such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements thereto
and such other documents, as the Subscriber may reasonably request in order
to
facilitate the disposition of the Registrable Securities owned by the
Subscriber;
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(f)
Use
all diligent 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 Subscriber 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;
(g)
As
promptly as practicable after becoming aware of such event, notify the
Subscriber 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
use all diligent efforts to 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 any other necessary steps to cure the
Registration Default, and deliver a number of copies of such supplement or
amendment to the Subscriber as the Subscriber may reasonably request. Failure
to
file such supplement or amendment to the Registration Statement with the SEC
within twenty (20) business days shall result in the Company incurring
liquidated damages of 1% of the cost of all Registrable Securities then held
by
the Subscriber for each twenty (20) business day period or portion thereof,
beginning on the twenty-first (21st) business day after the Registration Default
and terminating on the date such supplement or amendment to the Registration
Statement is filed with the SEC.
(h)
As
promptly as practicable after becoming aware of such event, notify the
Subscriber (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by
the
SEC of any notice of effectiveness or any stop order or other suspension of
the
effectiveness of the Registration Statement;
(i)
Notwithstanding the foregoing, if at any time or from time to time after the
date of effectiveness of the Registration Statement, the Company notifies
Subscriber in writing of the existence of a Potential Material Event
("Blackout
Notice"),
Subscriber shall not offer or sell any Registrable Securities, or engage in
any
other transaction involving or relating to the Registrable Securities, from
the
time of the giving of notice with respect to a Potential Material Event until
Subscriber receives written notice from the Company that such Potential Material
Event either has been disclosed to the public or no longer constitutes a
Potential Material Event; provided, however, that the Company may not so suspend
the right to such holders of Registrable Securities for more than two ten (10)
day periods in the aggregate during any 12-month period
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("Blackout
Period")
with
at least a ten (10) Business Day interval between such periods, during the
periods the Registration Statement is required to be in effect;
(j)
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")
"Small
Capitalization"
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 Small Cap 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 secure
NASD authorization and quotation for such Registrable Securities on the
over-the-counter bulletin board and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. ("NASD")
as
such with respect to such Registrable Securities; provided, however, that the
Subscriber acknowledges that the Company does not currently meet the
requirements for listing on a national securities exchange or the Nasdaq Small
Cap Market pursuant to (i) or (ii) and that nothing in this section shall be
construed to require the Company to pursue such qualification until such time
as
the Company satisfies such requirements for a period of not less than forty-five
(45) days;
(k)
Provide a transfer agent for the Registrable Securities not later than the
Effective Date;
(l)
Cooperate with the Subscriber 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
Subscriber may reasonably request and registration in such names as the
Subscriber 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 Subscriber) an appropriate instruction and opinion of such counsel, if
so
required by the Company's transfer agent; and
(m)
Take
all other reasonable actions necessary to expedite and facilitate distribution
to the Subscriber of the Registrable Securities pursuant to the Registration
Statement.
4. OBLIGATIONS
OF THE SUBSCRIBER. In connection with the registration of the Registrable
Securities, the Subscriber shall have the following obligations:
(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 Subscriber that the Subscriber shall timely furnish to the
Company such information regarding itself, the Registrable Securities held
by
it, and the intended method of disposition of the Registrable Securities held
by
it, as shall be reasonably required to effect the registration of such
Registrable Securities and shall timely execute such documents in connection
with such registration as the Company may reasonably request;
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(b)
The
Subscriber, by such Subscriber'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
Subscriber agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section
3(g) or 3(h)
above
(except for an SEC notice of effectiveness), the Subscriber will immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until the Subscriber receives
the
copies of the supplemented or amended prospectus contemplated by Section
3(g) or 3(h)
and, if
so directed by the Company, the Subscriber 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 Subscriber's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
5. EXPENSES
OF
REGISTRATION. (a) All reasonable expenses (other than underwriting discounts
and
commissions) incurred in connection with Registrations, filings or
qualifications pursuant to Section
3,
including, without limitation, all Registration, listing, and qualifications
fees, printers and accounting fees, and the fees and disbursements of counsel
for the Company shall be borne by the Company.
(b)
Except as otherwise provided for in Schedule
5(b)
attached
hereto, the Company nor any of its subsidiaries has, as of the date hereof,
and
the Company shall not on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to Subscriber in this Agreement or otherwise conflicts with the
provisions hereof. Except as otherwise provided for in Schedule
5(b),
the
Company has not previously entered into any agreement granting any registration
rights with respect to any of its securities to any person. Except as otherwise
provided for in this Section
5,
and
without limiting the generality of the foregoing, without the written consent
of
Subscriber, the Company shall not grant to any person the right to request
the
Company to Register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights
in
full of Subscriber set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement and the other Transaction
Documents.
6. INDEMNIFICATION.
After Registrable Securities are included in a Registration Statement under
this
Agreement:
(a)
To
the extent permitted by law, the Company will indemnify and hold harmless,
the
Subscriber, the directors, if any, of such Subscriber, the officers, if any,
of
such Subscriber, each person, if any, who controls the Subscriber 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 made therein, in the light
of
the circumstances under which the statements therein were made, not misleading,
(ii) any untrue statement or alleged untrue statement of a material
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fact
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 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 clause (b) of this Section
6,
the
Company shall reimburse the Subscriber, 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 Registration Statement 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 final
prospectus, as then amended or supplemented, if such final 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
Subscriber to deliver or cause to be delivered the Prospectus made available
by
the Company; (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; or (v) apply to the extent that
such
Claims are caused by, result from or arise out of any breach of this Agreement
by the Subscriber or any intentionally wrongful or grossly negligent conduct
by
the Subscriber. The Subscriber will indemnify the Company and its officers,
directors and agents (including legal counsel) (each, an "Indemnified
Person")
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 such Subscriber, expressly for use in connection
with the preparation of the Registration Statement, or arising out of or based
upon a failure of the Subscriber to deliver or cause to be delivered the
Prospectus made available by the Company, subject to such limitations and
conditions set forth in the previous sentence. Such indemnity shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
any Indemnified Person.
(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. In
case
any such action is brought against any Indemnified Person, 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 so desires, jointly
with
any other indemnifying party similarly notified, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party
and
the Indemnified Person. Subject to the provisions herein stated and after notice
from
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the
indemnifying party to such Indemnified Person of its election to assume control
of the defense thereof, the indemnifying party will not be liable to such
Indemnified Person under this Section
6
for any
legal or other out-of-pocket expenses subsequently incurred by such Indemnified
Person 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 Person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and reasonable out-of-pocket 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
Person. 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 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.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under
Section
6
to the
fullest extent permitted by law; provided, however, that (a) no contribution
shall be made under circumstances where the maker would not have been liable
for
indemnification under the fault standards set forth in Section
6;
(b) no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation; and (c) contribution by any seller of
Registrable Securities shall be limited in amount to the net proceeds received
by such seller from the sale of such Registrable Securities.
8. REPORTS
UNDER
EXCHANGE ACT. With a view to making available to the Subscriber the benefits
of
Rule 144 promulgated under the Securities Act or any other similar rule or
regulation of the SEC that may at any time permit the Subscriber to sell
securities of the Company to the public without registration ("Rule
144"),
the
Company agrees to use its reasonable best efforts to:
(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 Exchange Act;
(c)
furnish to the Subscriber so long as the Subscriber 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) a copy of the most recent annual or quarterly report of
the
Company and such other reports and documents so filed by the Company solely
if
unavailable by XXXXX, and (iii) such other information as may be reasonably
requested to permit the Subscriber to sell such securities pursuant to Rule
144
without registration; and
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(d)
at
the request of the Subscriber, 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
Subscriber of:
(i)
a
certificate (a "Rule
144 Certificate")
certifying (A) that such Subscriber has held the shares of Registrable
Securities which the Subscriber 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 Subscriber's counsel, acceptable to the Company, that, based on
the
Rule 144 Certificate, the 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
Subscriber, 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 Subscriber). 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.
9. MISCELLANEOUS.
(A)
REGISTERED OWNERS. A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities, who shall provide a bond or other form of satisfactory protection
to
the Company so as to cover contingent liability against other claimants.
(B)
RIGHTS CUMULATIVE; WAIVERS. The rights of each of the parties under this
Agreement are cumulative. The rights of each of the parties hereunder shall
not
be capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in exercising any
of
such rights shall not operate as a waiver or variation of that or any other
such
right. Any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right. No
act
or course of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a suspension
or
any variation of any such right.
(C)
BENEFIT; SUCCESSORS BOUND. This Agreement and the terms, covenants, conditions,
provisions, obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned parties and
their heirs, executors, administrators, representatives and successors.
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(D)
ENTIRE AGREEMENT. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties, covenants
or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement and in the other documentation relating to the
transactions contemplated by this Agreement. Any such promises, agreements,
conditions, undertakings, understandings, warranties, covenants or
representations shall not be used to interpret or constitute this Agreement.
(E)
[INTENTIONALLY OMITTED]
(F)
[INTENTIONALLY OMITTED]
(G)
SEVERABILITY. Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue in
full
force and effect.
(H)
NOTICES. Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be given as provided in the Equity Credit Agreement.
(I)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE WHOLLY PERFORMED
IN
SUCH STATE AND WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF REGARDING THE
CONFLICT OF LAWS. EACH OF THE PARTIES CONSENTS TO THE EXCLUSIVE JURISDICTION
OF
THE FEDERAL COURTS WHOSE DISTRICTS ENCOMPASS THE COUNTY OF NEW YORK OR THE
XXXXX
XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN THE COUNTY 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.
(J)
JURY
TRIAL WAIVER. THE COMPANY AND SUBSCRIBER HEREBY WAIVE A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION
WITH
THE TRANSACTION DOCUMENTS
(K)
CONSENTS. The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of that party.
(L)
FURTHER ASSURANCES. In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties hereto agree
to
make, execute and deliver or cause to be made, executed and delivered, to the
requesting party such
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other
instruments and to take such other actions as the requesting party may
reasonably require to carry out the terms of this Agreement and the transactions
contemplated hereby.
(M)
SECTION HEADINGS. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of
this Agreement.
(N)
CONSTRUCTION. Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be deemed
to
include each of the singular, and pronouns of one or no gender shall be deemed
to include the equivalent pronoun of the other or no gender.
(O)
EXECUTION IN COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party
so
delivering this Agreement. A facsimile transmission of this signed Agreement
shall be legal and binding on all parties hereto.
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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:
|
||
| GLOBAL MATRECHS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxxx
|
||
| Title: President | ||
| SUBSCRIBER: | ||
| BRITTANY CAPITALMANAGEMENT LTD | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Name: Xxxxx X. Xxxxxx |
||
| Title: President | ||
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