AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED
AND RESTATED
This
Amended and Restated Registration Rights Agreement (this “Agreement”)
is
made and entered into as of March 31, 2008 by and between ProLink Holdings
Corp., a Delaware corporation (the “Company”),
Calliope Capital Corporation (“Calliope”),
Valens US SPV I, LLC (“Valens
US”),
Valens Offshore SPV I, Ltd. (“Valens
Offshore”)
and
PSource Structured Debt Limited (“PSource”
and
together with Calliope, Valens US and Valens Offshore, each an “Investor”
and
collectively, the “Investors”).
This
Agreement amends and restates that certain Registration Rights Agreement dated
as of August 17, 2007, by and between the Company and Calliope, and is made
pursuant to that certain Amended and Restated Security Agreement dated as of
the
date hereof by and among the Company, certain subsidiaries of the Company,
each
Investor, the Lenders from time to time party thereto and LV Administrative
Services, Inc., as administrative and collateral agent for the Lenders (as
amended, restated, modified and/or supplemented from time to time, the
“Security
Agreement”).
The
Company and each Investor hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Security Agreement shall have the meanings given such terms in the Security
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
shares of the Company’s common stock, par value $0.0001 per share.
“Company”
has
the
meaning given to such term in the Preamble hereto.
“Closing
Shares”
means
the shares of Common Stock issued to the Investors on the date hereof in
connection with the transactions contemplated by the Security
Agreement.
“Effectiveness
Date”
means,
(i) with respect to the initial Registration Statement required to be filed
in
connection with the Notes issued on the date hereof, the Closing Shares and
the
Common Stock issuable upon exercise of the Warrants, a date no later than
September 27, 2008 and (ii) with respect to each additional Registration
Statement required to be filed hereunder (if any), a date no later than thirty
(30) days following the applicable Filing Date.
“Effectiveness
Period”
has
the
meaning set forth in Section 2(a).
“Event”
has
the
meaning set forth in Section 2(b).
“Event
Date”
has
the
meaning set forth in Section 2(b).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing
Date”
means,
with respect to (1) the Registration Statement required to be filed in
connection with (x) the shares of Common Stock issuable to the Holder upon
conversion of the Notes issued as of the date hereof, (y) the Closing Shares
and
(z) the Common Stock issuable upon exercise of the Warrants, as soon as
commercially reasonable, and (2) the Registration Statement required to be
filed
in connection with the shares of Common Stock issuable to the Holder as a result
of adjustments to the Fixed Conversion Price made pursuant to Section 3.6 of
the
Notes or adjustments made pursuant to Section 4 of the Warrants or otherwise,
sixty (60) days after the occurrence of such event or the date of such
adjustment.
“Holder”
or
“Holders”
means
the Investors or any of their respective affiliates or transferees to the extent
any of them hold Registrable Securities, other than those purchasing Registrable
Securities in a market transaction.
“Indemnified
Party”
has
the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5(c).
“Notes”
has
the
meaning given to the term “Secured Convertible Term Notes” in the Security
Agreement.
“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 such 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
the Closing Shares and the shares of Common Stock issuable upon conversion
of
the Notes and exercise of the Warrants.
“Registration
Statement”
means
each registration statement required to be filed hereunder, including the
Prospectus therein, 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
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
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“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 effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Security
Agreement”
has
the
meaning given to such term in the Preamble hereto.
“Trading
Market”
means
any of the NASD Over The Counter Bulletin Board, NASDAQ Capital Market, the
NASDAQ Global Market, the American Stock Exchange or the New York Stock
Exchange.
“Warrants”
means
the Common Stock Purchase Warrants issued in connection with the Original
Security Agreement.
2. Registration.
(a) The
Company shall, on or prior to each Filing Date, prepare and file with the
Commission a Registration Statement covering the Registrable Securities for
a
selling stockholder resale offering to be made on a continuous basis pursuant
to
Rule 415. Each 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). The Company shall cause each Registration
Statement to become effective and remain effective as provided herein. The
Company shall use commercially reasonable efforts to cause each Registration
Statement to be declared effective under the Securities Act as promptly as
possible after the filing thereof, but in any event no later than the
Effectiveness Date. The Company shall use commercially reasonable efforts to
keep each Registration Statement continuously effective under the Securities
Act
until the date which is the earlier date of when (i) all Registrable Securities
covered by such Registration Statement have been sold or (ii) all Registrable
Securities covered by such Registration Statement may be sold immediately
without registration under the Securities Act and without volume restrictions
pursuant to Rule 144, 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 (each, an “Effectiveness
Period”).
(b) If
for
any reason the Commission does not permit all of the Registrable Securities
to
be included in a Registration Statement filed pursuant to this Agreement, then
the Company shall prepare and file as soon as possible after the date on which
the Commission shall indicate as being the first date or time that such filing
may be made, but, in the event that the Commission does not so specify, no
later
than 180 days after the immediately prior Registration Statement has been
declared effective by the Commission (it being understood that this Section
2(b)
is applicable to any such subsequent Registration Statement), an additional
Registration Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415. The Company
shall cause each such Registration Statement to be declared effective under
the
Securities Act as soon as possible but, in any event, no later than its
Effectiveness Date, and shall use its reasonable commercial efforts to keep
such
Registration Statement continuously effective under the Securities Act during
the entire Effectiveness Period.
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(c) If
at any
time during the Effectiveness Period, less than 100% of the then Registrable
Securities are then registered in a Registration Statement(s), then the Company
shall file, as soon as reasonably practicable, but in any case prior to the
applicable Filing Date, subject to any restrictions imposed by Rule 415, an
additional Registration Statement covering the resale by the Holders of not
less
than 100% of the number of Registrable Securities.
(d) If:
(i)
the Registration Statement is not filed on or prior to the Filing Date; (ii)
the
Registration Statement is not declared effective by the Commission by the
Effectiveness Date; (iii) after the Registration Statement is filed with and
declared effective by the Commission, the Registration Statement ceases to
be
effective (by suspension or otherwise) as to any Registrable Securities to
which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an additional
registration statement filed and declared effective) for a period of time which
shall exceed 30 trading days in the aggregate per year or more than 20
consecutive trading days (defined as a period of 365 days commencing on the
date
the Registration Statement is declared effective); or (iv) the Common Stock
is
not listed or quoted, or is suspended from trading on any Trading Market for
a
period of three (3) consecutive trading days (provided the Company shall not
have been able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on another Trading Market); (any such failure
or breach being referred to as an “Event,” and for purposes of clause (i) or
(ii) the date on which such Event occurs, or for purposes of clause (iii) the
date which such 30 day or 20 consecutive day period (as the case may be) is
exceeded, or for purposes of clause (iv) the date on which such three (3)
trading day period is exceeded, being referred to as “Event
Date”),
then
until the applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as liquidated damages and not as a penalty, equal to 1.0% for
each 30-day period (prorated for partial periods) on a daily basis of the
aggregate original principal amount of the Notes; provided that the maximum
aggregate amount of liquidated damages that may be charged to the Company
pursuant to this Section 2(d) shall not exceed 10% of the initial principal
amount of the Notes. While such Event continues, such liquidated damages shall
be paid not less often than each 30 days. Any unpaid liquidated damages as
of
the date when an Event has been cured by the Company shall be paid within three
(3) days following the date on which such Event has been cured by the
Company.
(e) Notwithstanding
anything to the contrary contained in this Agreement, in the event the
Commission determines any Registration Statement filed pursuant to this
Agreement (i) constitutes a primary offering of securities by the Company or
(ii) requires any Holder to be named as an underwriter and such Holder does
not
consent to being so named as an underwriter in such Registration Statement,
the
Company may reduce, on a pro rata basis, the total number of Registrable
Securities to be registered on behalf of each such Holder, and the failure
to
include such Registrable Securities in any Registration Statement shall not
cause the Company to be required to pay a penalty, financial or otherwise,
as
described in this Agreement, including, without limitation, any liquidated
damages as set forth in Section 2(d) hereof. In the even of any such reduction
in Registrable Securities, the Company shall file a Registration Statement
at
such time as the Commission shall indicate as being the first date or time
that
such filing may be made, but no later than 180 days after the immediately prior
Registration Statement has been declared effective by the Commission, until
such
time as (i) all Registrable Securities have been registered pursuant to an
effective Registration Statement, (ii) the Registrable Securities may be resold
without restriction (including volume limitations) pursuant to Rule 144 of
the
Securities Act or (iii) the Holder agrees to be named as an underwriter in
any
such Registration Statement.
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(f) Within
three (3) Business Days of the Effectiveness Date, the Company shall cause
its
counsel to issue an opinion substantially in the form attached hereto as
Exhibit
A,
to the
transfer agent stating that the shares are subject to an effective registration
statement and can be reissued free of restrictive legend upon notice of a sale
by the Investor and confirmation by the Investor that it has complied with
the
prospectus delivery requirements, provided
that the
Company has not advised the transfer agent orally or in writing that the opinion
has been withdrawn. Copies of the opinion required by this Section 2(f) shall
be
delivered to the Investor within the time frame set forth above.
3. Registration
Procedures.
If and
whenever the Company is required by the provisions hereof to effect a
registration under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received
from the Commission, and use commercially reasonable efforts to cause such
Registration Statement to become and remain effective for the Effectiveness
Period with respect thereto;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may
be
necessary to comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities covered by such Registration
Statement and to keep such Registration Statement effective until the expiration
of the Effectiveness Period applicable to such Registration
Statement;
(c) furnish
to the Investor such number of copies of the Registration Statement and the
Prospectus included therein (including each preliminary Prospectus and any
amendments and supplements to the Registration Statement and the Prospectus)
and
such other documents as the Investor reasonably may request to facilitate the
public sale or disposition of the Registrable Securities covered by such
Registration Statement;
(d) use
commercially reasonable efforts to register or qualify the Investor’s
Registrable Securities covered by such Registration Statement under the
securities or “blue sky” laws of such jurisdictions within the United States as
the Investor may reasonably request and do any and all other acts and things
which may be reasonably necessary to enable the Investor to consummate the
disposition in such jurisdiction of the Registrable Securities, provided,
however,
that
the Company shall not for any such purpose be required to qualify generally
to
transact business as a foreign corporation in any jurisdiction where it is
not
so qualified or to consent to general service of process in any such
jurisdiction;
5
(e) list
the
Registrable Securities covered by such Registration Statement with any
securities exchange on which the Common Stock of the Company is then
listed;
(f) immediately
notify the Investor at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as
a
result of which the Prospectus contained in such Registration Statement, as
then
in effect, includes an untrue statement of a material fact or omits to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, at the request of the Investor, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of Registrable Securities, such Prospectus shall
not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statement therein
not misleading;
(g) make
available for inspection by the Investor and any attorney, accountant or other
agent retained by the Investor, all publicly available, non-confidential
financial and other records, pertinent corporate documents and properties of
the
Company, and cause the Company’s officers, directors and employees to supply all
publicly available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Investor;
(h) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
(i) if
requested, cause to be delivered, immediately prior to the effectiveness of
the
Registration Statement, letters from the Company’s independent certified public
accountants addressed to the Investor (unless the Investor does not provide
to
such accountants the appropriate representation letter required by rules
governing the accounting profession) stating that such accountants are
independent public accountants within the meaning of the Securities Act and
the
applicable rules and regulations adopted by the Commission thereunder, and
otherwise in customary form and covering such financial and accounting matters
as are customarily covered by letters of the independent certified public
accountants delivered in connection with primary or secondary underwritten
public offerings, as the case may be; and
(j) at
all
times after the Company has filed a Registration Statement with the Commission
pursuant to the requirements of either the Securities Act or the Exchange Act,
the Company shall file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the
Commission thereunder, and take such further action as the Investor may
reasonably request, all to the extent required to enable the Investor to be
eligible to sell Registrable Securities pursuant to Rule 144 (or any similar
rule then in effect).]
4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration, filing and listing application
fees, costs of distributing any prospectuses and supplements thereto, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or “blue sky” laws, fees of the
NASD, transfer taxes, fees of transfer agents and registrars, fees of, and
disbursements incurred by, one counsel for the Holders are called “Registration
Expenses.” All selling commissions applicable to the sale of Registrable
Securities, including any fees (not to exceed $20,000) and disbursements of
any
special counsel to the Holders beyond those included in Registration Expenses,
are called “Selling Expenses.” The Company shall only be responsible for all
Registration Expenses. The obligation of the Company to bear the expenses
described above shall apply irrespective of whether a registration, becomes
effective, is withdrawn or suspended, is converted to another form of
registration and irrespective of when any of the foregoing shall
occur.
6
5. Indemnification.
(a) In
the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to this Agreement, the Company will indemnify and hold harmless each
Holder, and its officers, directors and each other person, if any, who controls
such Holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Holder, or
such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to
this
Agreement, any preliminary Prospectus or final Prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act or applicable “blue sky” laws, and will reimburse such Holder, and
each such person for any legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by or on behalf of the Investor or any
such person in writing specifically for use in any such document.
(b) In
the
event of a registration of the Registrable Securities under the Securities
Act
pursuant to this Agreement, the Investor will indemnify and hold harmless the
Company, and its officers, directors and each other person, if any, who controls
the Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact which was furnished in writing by the Investor to the
Company expressly for use in (and such information is contained in) the
Registration Statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading, and will reimburse the Company and each
such
person for any reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action, provided,
however,
that
the Investor will be liable in any such case if and only to the extent that
any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished in writing to the Company by or on behalf
of the Investor specifically for use in any such document. Notwithstanding
the
provisions of this paragraph, the Investor shall not be required to indemnify
any person or entity in excess of the amount of the aggregate net proceeds
received by the Investor in respect of Registrable Securities in connection
with
any such registration under the Securities Act.
7
(c) Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified
Party”)
of
notice of the commencement of any action, such Indemnified Party shall, if
a
claim for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an “Indemnifying
Party”),
notify the Indemnifying Party in writing thereof, but the omission so to notify
the Indemnifying Party shall not relieve it from any liability which it may
have
to such Indemnified Party other than under this Section 5(c) and shall only
relieve it from any liability which it may have to such Indemnified Party under
this Section 5(c) if and to the extent the Indemnifying Party is prejudiced
by
such omission. In case any such action shall be brought against any Indemnified
Party and it shall notify the Indemnifying Party of the commencement thereof,
the Indemnifying Party shall be entitled to participate in and, to the extent
it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such Indemnified Party, and, after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume and undertake
the
defense thereof, the Indemnifying Party shall not be liable to such Indemnified
Party under this Section 5(c) for any legal expenses subsequently incurred
by
such Indemnified Party in connection with the defense thereof; if the
Indemnified Party retains its own counsel, then the Indemnified Party shall
pay
all fees, costs and expenses of such counsel, provided,
however,
that,
if the defendants in any such action include both the Indemnified Party and
the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict with the interests
of the Indemnifying Party, the Indemnified Party shall have the right to select
one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other expenses related to such participation to
be
reimbursed by the Indemnifying Party as incurred.
(d) In
order
to provide for just and equitable contribution in the event of joint liability
under the Securities Act in any case in which either (i) the Investor, or any
officer, director or controlling person of the Investor, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by
the entry of a final judgment or decree by a court of competent jurisdiction
and
the expiration of time to appeal or the denial of the last right of appeal)
that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of the
Investor or such officer, director or controlling person of the Investor in
circumstances for which indemnification is provided under this Section 5; then,
and in each such case, the Company and the Investor will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in such proportion so that the Investor is
responsible only for the portion represented by the percentage that the public
offering price of its securities offered by the Registration Statement bears
to
the public offering price of all securities offered by such Registration
Statement, provided,
however,
that,
in any such case, (A) the Investor will not be required to contribute any amount
in excess of the public offering price of all such securities offered by it
pursuant to such Registration Statement; and (B) no person or entity guilty
of
fraudulent misrepresentation (within the meaning of Section 10(f) of the Act)
will be entitled to contribution from any person or entity who was not guilty
of
such fraudulent misrepresentation.
8
(e) The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities.
6. Representations
and Warranties.
(a) The
Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and, except with respect to certain matters which the Company has disclosed
to the Investor on Schedule
12(u)
to the
Security Agreement, the Company has timely filed all proxy statements, reports,
schedules, forms, statements and other documents required to be filed by it
under the Exchange Act. The Company has filed, or (with respect to the following
clause (i)) will file by April 16, 2008, (i) its Annual Report on Form
10-K[SB] for its fiscal year ended December 31, 2007 and (ii) its Quarterly
Report on Form 10-Q[SB] for the fiscal quarters ended September 30, 2007
(collectively, the “SEC
Reports”).
Each
SEC Report was, at the time of its filing, in substantial compliance with the
requirements of its respective form and none of the SEC Reports, nor the
financial statements (and the notes thereto) included in the SEC Reports, as
of
their respective filing dates, contained any untrue statement of a material
fact
or omitted 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. The financial statements of the Company included
in
the SEC Reports comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect thereto.
Such
financial statements have been prepared in accordance with generally accepted
accounting principles (“GAAP”)
applied on a consistent basis during the periods involved (except (i) as may
be
otherwise indicated in such financial statements or the notes thereto or (ii)
in
the case of unaudited interim statements, to the extent they may not include
footnotes or may be condensed) and fairly present in all material respects
the
financial condition, the results of operations and the cash flows of the Company
and its subsidiaries, on a consolidated basis, as of, and for, the periods
presented in each such SEC Report.
(b) The
Common Stock is listed or quoted, as applicable, for trading on the NASDAQ
Over
The Counter Bulletin Board and satisfies all requirements for the continuation
of such listing or quotation, as applicable, and the Company shall do all things
necessary for the continuation of such listing or quotation, as applicable.
The
Company has not received any notice that its Common Stock will be delisted
from
or no longer be quoted on, as applicable, the NASDAQ Over The Counter Bulletin
Board (except for prior notices which have been fully remedied) or that the
Common Stock does not meet all requirements for the continuation of such listing
or quotation, as applicable.
9
(c) Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances that would cause
the offering of the Securities pursuant to the Security Agreement to be
integrated with prior offerings by the Company for purposes of the Securities
Act which would prevent the Company from selling the Common Stock pursuant
to
Rule 506 under the Securities Act, or any applicable exchange-related
stockholder approval provisions, nor will the Company or any of its affiliates
or subsidiaries take any action or steps that would cause the offering of the
Securities to be integrated with other offerings (other than such concurrent
offering to the Investor).
(d) The
Notes
and the Closing Shares and the shares of Common Stock that the Investors may
acquire pursuant to the Notes are all restricted securities under the Securities
Act as of the date of this Agreement. The Company will not issue any stop
transfer order or other order impeding the sale and delivery of any of the
Registrable Securities at such time as such Registrable Securities are
registered for public sale or an exemption from registration is available,
except as required by federal or state securities laws.
(e) The
Company understands the nature of the Registrable Securities issuable upon
the
conversion of each Note and issuance of the Closing Shares and recognizes that
the issuance of such Registrable Securities may have a potential dilutive
effect. The Company specifically acknowledges that its obligation to issue
the
Registrable Securities is binding upon the Company and enforceable regardless
of
the dilution such issuance may have on the ownership interests of other
shareholders of the Company.
(f) Except
for agreements made in the ordinary course of business, there is no agreement
that has not been filed with the Commission as an exhibit to a registration
statement or to a form required to be filed by the Company under the Exchange
Act, the breach of which could reasonably be expected to have a material and
adverse effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and perform
any of its obligations under this Agreement in any material
respect.
(g) The
Company will at all times have authorized and reserved a sufficient number
of
shares of Common Stock for the full conversion of the Notes.
(h) The
Company shall provide written notice to each Holder of (i) the occurrence
of each Discontinuation Event (as defined below) and (ii) the declaration
of effectiveness by the Commission of each Registration Statement required
to be
filed hereunder, in each case within one (1) Business Day of the date of each
such occurrence and/or declaration.
7. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their respective
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.
10
(b) No
Piggyback on Registrations.
Except
as and to the extent set forth on Schedule
7(b)
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 any
Registration Statement other than the Registrable Securities, and the Company
shall not after the date hereof enter into any agreement providing any such
right for inclusion of shares in the Registration Statement to any of its
security holders. Except as and to the extent specified in Schedule
7(b)
hereto,
the Company has not previously entered into any agreement granting any
registration rights with respect to any of its securities to any person or
entity that have not been fully satisfied.
(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 any 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 a Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable 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 may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this Agreement, a
“Discontinuation Event” shall mean (i) 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); (ii) any request by the Commission or any other Federal
or
state governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance by
the
Commission of any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or the initiation
of
any Proceedings for that purpose; (iv) 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/or (v) the occurrence of any event or passage of time that makes
the financial statements included in such Registration Statement ineligible
for
inclusion therein or any statement made in such 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
such
Registration Statement, Prospectus or other documents so that, in the case
of
such Registration Statement or 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.
(e) Piggy-Back
Registrations.
If at
any time after the date hereof there is not an effective Registration Statement
covering all of the Registrable Securities required to be covered during such
Effectiveness Period 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 stock option or other employee
benefit plans, then the Company shall promptly send to each Holder written
notice of such determination and, if within fifteen (15) days after receipt
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, to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement, subject to customary underwriter cutbacks applicable to
all
holders of registration rights and subject to obtaining any required consent
of
any selling stockholder(s) to such inclusion under such registration
statement.
11
(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 the Holders of the then outstanding 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 certain Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority 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
notice or request hereunder may be given to the Company or the Investor at
the
respective addresses set forth below or as may hereafter be specified in a
notice designated as a change of address under this Section 7(g). Any notice
or
request hereunder shall be given by registered or certified mail, return receipt
requested, hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, “Courier”)
or
telecopy (confirmed by mail). Notices and requests shall be, in the case of
those by hand delivery, deemed to have been given when delivered to any party
to
whom it is addressed, in the case of those by mail or overnight mail, deemed
to
have been given three (3) Business Days after the date when deposited in the
mail or with the overnight mail carrier, in the case of a Courier, the next
Business Day following timely delivery of the package with the Courier, and,
in
the case of a telecopy, when confirmed. The address for such notices and
communications shall be as follows:
|
If
to the Company:
|
000
Xxxxxx Xxxx
Xxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
with
a copy to:
|
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx
and
Xxxxx P.C.
Chrysler
Center
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxxxxxxxx, Esq.
Facsimile:
(000) 000-0000
|
|
If
to Investor:
|
To
the address set forth under
Investor’s
name on the signature
pages
hereto
|
|
If
to any other Person who is
then
the registered Holder:
|
To
the address of such Holder as it
appears
in the stock transfer books
of
the Company
|
or
such
other address as may be designated in writing hereafter in accordance with
this
Section 7(g) by such Person.
12
(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 each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the persons and entities as
permitted under the Security Agreement.
(i) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same agreement. In the event that any signature
is
delivered by facsimile or electronic transmission, such signature shall create
a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile or electronic signature were the original thereof.
(j) Governing
Law, Jurisdiction and Waiver of Jury Trial.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH
STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY
OF
NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSION JURISDICTION TO HEAR AND
DETERMINE ANY PROCEEDING BETWEEN THE COMPANY, ON THE ONE HAND, AND THE
PURCHASER, ON THE OTHER HAND, PERTAINING TO THIS AGREEMENT OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED,
THAT
THE PURCHASER AND THE COMPANY ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE
OF
NEW YORK, AND FURTHER PROVIDED,
THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE PURCHASER
FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS,
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR
TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE PURCHASER. THE COMPANY
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY PROCEEDING
COMMENCED IN ANY SUCH COURT, AND THE COMPANY HEREBY WAIVES ANY OBJECTION WHICH
IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM
NON CONVENIENS.
THE
COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH PROCEEDING AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION 7(G) AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE COMPANY’S
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID. THE PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED
BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PURCHASER
AND/OR THE COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THE
RELATIONSHIP ESTABLISHED BETWEEN THEN IN CONNECTION WITH THIS AGREEMENT. IF
EITHER PARTY HERETO SHALL COMMENCE A PROCEEDING TO ENFORCE ANY PROVISIONS OF
THIS AGREEMENT, THE SECURITY AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT, THEN
THE PREVAILING PARTY IN SUCH PROCEEDING SHALL BE REIMBURSED BY THE OTHER PARTY
FOR ITS REASONABLE ATTORNEYS’ FEES AND OTHER COSTS AND EXPENSES INCURRED WITH
THE INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH PROCEEDING.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) 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 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.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Balance
of page intentionally left blank; signature page follows]
13
IN
WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first written above.
| PROLINK HOLDINGS CORP. | |||
| |
|
|
|
| By: | |||
| Name: | |||
| Title: | |||
| CALLIOPE CAPITAL CORPORATION | |||
| By: |
Laurus Capital Management, its investment
manager
|
||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
|
Address
for Notices:
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Services
Facsimile
No.: (000) 000-0000
with
copy to:
Laurus
Capital Management, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Services
Facsimile
No.: (000) 000-0000
|
|||
SIGNATURE
PAGE TO
|
|
14
| VALENS US SPV I, LLC | |||
| |
|
|
|
| By: |
Valens
Capital Management, its investment
manager
|
||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
|
Address
for Notices:
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Services
Facsimile
No.: (000) 000-0000
with
copy to:
Valens
Capital Management, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Service
Facsimile
No.: (000) 000-0000
|
|||
SIGNATURE
PAGE TO
15
| VALENS OFFSHORE SPV I, LTD. | |||
| |
|
|
|
| By: |
Valens
Capital Management, its investment
manager
|
||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
|
Address
for Notices:
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Services
Facsimile
No.: (000) 000-0000
with
copy to:
Valens
Capital Management, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Service
Facsimile
No.: (000) 000-0000
|
|||
16
| PSOURCE STRUCTURED DEBT LIMITED | |||
| By: | |||
| Name: | |||
| Title: Authorized Signatory | |||
|
Address
for Notices:
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Services
Facsimile
No.: (000) 000-0000
with
copy to:
Valens
Capital Management, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Attention:
Portfolio Service
Facsimile
No.: (000) 000-0000
|
|||
17
EXHIBIT
A to
Amended
and Restated Registration Rights Agreement
____________,
200___
[Continental
Stock Transfer
&
Trust Company
Two
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxxxxx]
Re: ProLink
Holdings Corp. Registration Statement on Form [S-3]
Ladies
and Gentlemen:
As
counsel to ProLink Holdings Corp., a _____________ (the “Company”),
we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on Schedule
A
attached
hereto (the “Selling
Stockholders”),
of an
aggregate of __________ shares (the “Shares”)
of the
Company’s Common Stock.
A
Registration Statement on Form [S-3] under the Securities Act of 1933, as
amended (the “Act”),
with
respect to the resale of the Shares was declared effective by the Securities
and
Exchange Commission on [date]. Enclosed is the Prospectus dated [date]. We
understand that the Shares are to be offered and sold in the manner described
in
the Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholders at any time while
the registration statement remains effective, it is our opinion that the Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholders
may be issued without restrictive legend. We will advise you if the registration
statement is not available or effective at any point in the future.
Very
truly yours,
[Company
counsel]
18
Schedule
A to Exhibit A
|
Selling
Stockholder
|
R/N/O
|
Shares
Being
Offered
|
|
|
||
|
|
||
|
|
||
|
|
19
SCHEDULE
7(b) to
Amended
and Restated Registration Rights Agreement
20
