REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
This
REGISTRATION RIGHTS
AGREEMENT (this “Agreement”), dated as of December
11, 2019, is by and among SANUWAVE Health, Inc., a Nevada
corporation (the “Company”), and each of the
undersigned investors (each a “Purchaser,” and collectively, the
“Purchasers”).
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Common Stock
Purchase Agreement by and among the parties hereto, dated as of
December 11, 2019 by and between, inter alia, the parties hereto,
dated as of the date hereof (the “Purchase Agreement”).
RECITALS
A. In
connection with the Purchase Agreement, the Company has agreed,
upon the terms and subject to the conditions of the Purchase
Agreement, to issue the Common Shares to the
Purchasers.
B. To
induce the Purchasers to consummate the transactions contemplated
by the Purchase 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 “1933 Act”), under the terms and
subject to the conditions set out in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the
premises and the mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and each of the
Purchasers hereby agree as follows:
1. Definitions. As
used in this Agreement, the following terms shall have the
following meanings:
(a) “Business Day” means any day other
than Saturday, Sunday or any other day on which commercial banks in
New York, New York are authorized or required by law to remain
closed.
(b) “Common Shares” means the Common
Shares issued to the Purchasers pursuant to the Purchase
Agreement.
(c) “Closing Date” shall have the
meaning set forth in the Purchase Agreement.
(d) “Effective Date” means the date
that the applicable Registration Statement has been declared
effective by the SEC.
(e) “Effective Purchase Price” means
for each Purchaser, the amount of Common Shares issued to such
Purchaser pursuant to the Purchase Agreement multiplied by the
Per Security Purchase
Price.
(f) “Effectiveness Deadline” means (i)
with respect to the initial Registration Statement required to be
filed pursuant to Section 2(a), the earlier of (A) May 30, 2020 and
(B) 2nd Business Day after the date the Company is notified (orally
or in writing, whichever is earlier) by the SEC that such
Registration Statement will not be reviewed or will not be subject
to further review and (ii) with respect to any new Registration
Statements that may be required to be filed by the Company pursuant
to Section 2(c) of this Agreement, the earlier of the (A) 30th
calendar day following the date on which the Company was required
to file such additional Registration Statement and (B) 2nd Business
Day after the date the Company is notified (orally or in writing,
whichever is earlier) by the SEC that such additional Registration
Statement will not be reviewed or will not be subject to further
review; provided, however, if (but only if) a Filing Failure did
not occur, then such time periods shall be tolled on a day-for-day
basis for so long as the Company’s audited financial
statements are stale pursuant to Regulation S-X Rule
3-12(b).
(g) “Filing
Deadline” means (i) with respect to the initial
Registration Statement required to be filed pursuant to Section
2(a), the earlier of (x) April 30, 2020; and (ii) with respect to
any additional Registration Statements that may be required to be
filed by the Company pursuant to this Agreement, the date on which
the Company was required to file such additional Registration
Statement pursuant to the terms of this Agreement.
(h) “Investor” means a Purchaser or any
transferee or assignee of any Registrable Securities, to whom a
Purchaser assigns its rights under this Agreement and who agrees to
become bound by the provisions of this Agreement in accordance with
Section 9 and any transferee or assignee thereof to whom a
transferee or assignee of any Registrable Securities, assigns its
rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section
9.
(i) “Per Security Purchase Price” means
$0.14.
(j) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, or any other entity of any kind or nature whatsoever,
a trust, an unincorporated organization or a government or any
department or agency thereof.
(k) “Principal Market” means
any of the following
markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the NYSE MKT, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the New York Stock Exchange or the OTC Bulletin Board (or
any successors to any of the foregoing).
(l) “Register,” “Registered,” and
“Registration”
refer to a registration effected by preparing and filing one or
more Registration Statements in compliance with the 1933 Act and
the declaration of effectiveness of such Registration Statement(s)
by the SEC.
(m) ”Registrable Securities” means the
Common Shares. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities
shall have become effective under the 1933 Act and such securities
shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities
shall have been otherwise transferred, new certificates for them
not bearing a legend restricting further transfer shall have been
delivered by the Company, and subsequent public distribution of
them shall not require registration under the Securities Act; or
(c) the Registrable Securities are freely saleable under Rule 144
under the Securities Act without volume limitations.
2
(n) “Registration
Statement” means a registration statement or
registration statements of the Company filed under the 1933 Act
covering Registrable Securities.
(o) “Required Registration Amount”
means the aggregate amount of Registrable Securities, as decreased
from time to time as certain Common Shares cease to be Registrable
Securities in accordance with Section 1(m).
(p) “Rule 144” means Rule 144
promulgated by the SEC under the 1933 Act, as such rule may be
amended from time to time, or any other similar or successor rule
or regulation of the SEC that may at any time permit the Investors
to sell securities of the Company to the public without
registration.
(q) “SEC” means the United States
Securities and Exchange Commission or any successor
thereto.
(r) “Transaction Documents” means this
Agreement, the Purchase Agreement, and any other agreements,
instruments, or documents entered into pursuant to this
Agreement.
(a) Mandatory Registration. The
Company shall prepare and, as soon as practicable, but in no event
later than the Filing Deadline, file with the SEC an initial
Registration Statement on Form S-1 covering the resale of all of
the Registrable Securities, provided that such initial Registration
Statement shall register for resale at least the number of shares
of Common Stock equal to the Required Registration Amount as of the
date such Registration Statement is initially filed with the SEC.
Such initial Registration Statement, and each other Registration
Statement required to be filed pursuant to the terms of this
Agreement. The Investors shall furnish all information reasonably
requested by the Company for inclusion therein. The Company shall
use its commercially reasonable efforts to have such initial
Registration Statement, and each other Registration Statement
required to be filed pursuant to the terms of this Agreement,
declared effective by the SEC as soon as practicable, but in no
event later than the applicable Effectiveness Deadline for such
Registration Statement. Except as contemplated in Section 3(f), and
except with respect to the information furnished in writing to the
Company by the Investors expressly for use in connection with the
preparation of the Registration Statement and any amendments or
supplements thereto or prospectus contained therein (as to which
the Company makes no representation or warranty), the 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 light of the circumstances under which they were made,
not misleading.
(b) Legal Counsel. Subject to
Section 5 hereof, the Purchasers shall have the right to select one
(1) legal counsel to review and oversee, solely on its behalf, any
registration pursuant to this Section 2 (“Legal Counsel”), which shall be
Xxxxxxxx & Xxxxxxxx LLP.
3
(c) Sufficient Number of Shares
Registered. In the event the number of shares available
under any Registration Statement is insufficient to cover the
Required Registration Amount or an Investor’s allocated
portion of the Registrable Securities pursuant to Section 2(g), the
Company shall amend such Registration Statement (if permissible),
or file with the SEC a new Registration Statement (on the short
form available therefor, if applicable), or both, so as to cover at
least the Required Registration Amount as of the Trading Day
immediately preceding the date of the filing of such amendment or
new Registration Statement, in each case, as soon as practicable,
but in any event not later than fifteen (15) days after the
necessity therefor arises. The Company shall use reasonable best
efforts to cause such amendment to such Registration Statement
and/or such new Registration Statement (as the case may be) to
become effective as soon as practicable following the filing
thereof with the SEC, but in no event later than the applicable
Effectiveness Deadline for such Registration Statement. For
purposes of the foregoing provision, the number of shares available
under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time
the number of shares of Common Stock available for resale under the
applicable Registration Statement is less than the Required
Registration Amount.
(d) Reduction of Offering.
Notwithstanding anything to the contrary contained in this
Agreement, but subject to the payment of the Registration Delay
Payments pursuant to Section 2(e), in the event the staff of the
SEC (the “Staff”) or the SEC seeks to
characterize any offering pursuant to a Registration Statement
filed pursuant to this Agreement as constituting an offering
of securities by, or on behalf of, the Company, or in any other
manner, such that the Staff or the SEC do not permit
such Registration Statement to become effective and used for
resales in a manner that does not constitute such an offering and
that permits the continuous resale at the market by the Investors
participating therein (or as otherwise may be acceptable
to each Investor) without being named therein as an
“underwriter,” then the Company shall reduce the number
of shares to be included in such Registration Statement by all
Investors until such time as the Staff and the SEC shall so
permit such Registration Statement to become effective as
aforesaid. In making such reduction, the Company shall reduce
the number of shares to be included by all Investors on a pro rata
basis (based upon the number of Registrable Securities otherwise
required to be included for each Investor). The Investors
shall have the right to participate or have their counsel
participate in any meetings or discussions with the Staff regarding
the Staff’s position and to comment or have their counsel
comment on any written submission made to the Staff with respect
thereto. No such written submission shall be made to the Staff to
which an Investor’s counsel reasonably objects. In addition,
in the event that the Staff or the SEC requires any Investor
seeking to sell securities under a Registration Statement
filed pursuant to this Agreement to be specifically identified
as an ”underwriter” in order to permit such
Registration Statement to become effective, and such Investor does
not consent to being so named as an underwriter in such
Registration Statement, then, in each such case, the
Company shall reduce the total number of Registrable
Securities to be registered on behalf
of such Investor, until such time as the Staff or
the SEC does not require such identification or until such Investor
accepts such identification and the manner thereof. Any
reduction pursuant to this paragraph will first reduce all
securities that are not Registrable Securities, if any such
securities are permitted by Investors to be included in accordance
with the terms of this Agreement. In the event of
any reduction in Registrable Securities pursuant to this
paragraph, an affected Investor shall have the right to
require, upon delivery of a written request to the Company signed
by such Investor, the Company to file a registration statement
within thirty (30) days of such request (subject to any
restrictions imposed by Rule 415 or required by the Staff
or the SEC) for resale by such Investor in a manner acceptable to
such Investor, and the Company shall, following such
request, cause to be and keep effective such registration
statement in the same manner as otherwise contemplated in this
Agreement for registration statements hereunder, in each case
until such time as: (i) all Registrable Securities held by such
Investor have been registered and sold pursuant to an
effective Registration Statement in a manner acceptable to such
Investor or (ii) all Registrable Securities may be resold by
such Investor without restriction (including, without
limitation, volume limitations) pursuant to Rule 144 (taking
account of any Staff position with respect to
“affiliate” status) and without the need for current
public information required by Rule 144(c)(1) (or Rule 144(i)(2),
if applicable) or (iii) such Investor agrees to be named as an
underwriter in any such Registration Statement in a manner
acceptable to such Investor as to all Registrable Securities held
by such Investor and that have not theretofore been included in a
Registration Statement under this Agreement (it being understood
that the special demand right under this sentence may be exercised
by an Investor multiple times and with respect to limited amounts
of Registrable Securities in order to permit the resale thereof by
such Investor as contemplated above).
4
(e) Piggyback Registration. Without
limiting any obligation of the Company hereunder or under the
Purchase Agreement, if there is not an effective Registration
Statement covering all of the Registrable Securities or the
prospectus contained therein is not available for use and the
Company shall determine to prepare and file with the SEC a
registration statement relating to an offering for its own account
or the account of others under the 1933 Act of any of its equity
securities (other than on Form S-4 or Form S-8 (each as promulgated
under the 0000 Xxx) 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 Company’s stock option or other employee
benefit plans), then the Company shall deliver to each Investor a
written notice of such determination and, if within fifteen (15)
days after the date of the delivery of such notice, any such
Investor shall so request in writing, the Company shall include in
such registration statement all or any part of such Registrable
Securities such Investor requests to be registered; provided,
however, the Company shall not be required to register any
Registrable Securities pursuant to this Section 2(g) that are
eligible for resale pursuant to Rule 144 without restriction
(including, without limitation, volume restrictions) and without
the need for current public information required by Rule 144(c)(1)
(or Rule 144(i)(2), if applicable) or that are the subject of a
then-effective Registration Statement.
(f) Allocation of Registrable
Securities. The initial number of Registrable Securities
included in any Registration Statement and any increase in the
number of Registrable Securities included therein shall be
allocated pro rata among the Investors based on the number of
Registrable Securities held by each Investor at the time such
Registration Statement covering such initial number of Registrable
Securities or increase thereof is declared effective by the SEC. In
the event that an Investor sells or otherwise transfers any of such
Investor’s Registrable Securities, each transferee or
assignee (as the case may be) that becomes an Investor shall be
allocated a pro rata portion of the then-remaining number of
Registrable Securities included in such Registration Statement for
such transferor or assignee (as the case may be). Any shares of
Common Stock included in a Registration Statement and which remain
allocated to any Person which ceases to hold any Registrable
Securities covered by such Registration Statement shall be
allocated to the remaining Investors, pro rata based on the number
of Registrable Securities then held by such Investors which are
covered by such Registration Statement.
(g) No Inclusion of Other
Securities. In no event shall the Company include any
securities other than Registrable Securities on any Registration
Statement without the prior written consent of the Investors. Until
the Applicable Date (as defined in the Purchase Agreement), the
Company shall not enter into any agreement providing any
registration rights to any of its security holders and the Company
shall not file any other registration statement until such
time.
3. Related
Obligations. The Company shall use reasonable best efforts to
effect the registration of the Registrable Securities in accordance
with the intended method of disposition thereof, and, pursuant
thereto, the Company shall have the following
obligations:
5
(a) The Company shall
promptly prepare and file with the SEC a Registration Statement
with respect to all the Registrable Securities (but in no event
later than the applicable Filing Deadline) and use reasonable best
efforts to cause such Registration Statement to become effective as
soon as practicable after such filing (but in no event later than
the Effectiveness Deadline). Subject to Allowable Grace Periods,
the Company shall keep each Registration Statement effective (and
the prospectus contained therein available for use) at all times
until the earlier of (i) the date as of which all of the Investors
may sell all of the Registrable Securities required to be covered
by such Registration Statement (disregarding any reduction pursuant
to Section 2(e)) without restriction pursuant to Rule 144
(including, without limitation, volume restrictions) and without
the need for current public information required by Rule 144(c)(1)
(or Rule 144(i)(2), if applicable) or (ii) the date on which the
Investors shall have sold all of the Registrable Securities covered
by such Registration Statement (the “Registration Period”).
Notwithstanding anything to the contrary contained in this
Agreement, the Company shall ensure that, when filed and at all
times while effective, each Registration Statement (including,
without limitation, all amendments and supplements thereto) and the
prospectus (including, without limitation, all amendments and
supplements thereto) used in connection with such Registration
Statement (1) 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 case
of prospectuses, in the light of the circumstances in which they
were made) not misleading and (2) will disclose (whether directly
or through incorporation by reference to other SEC filings to the
extent permitted) all material information regarding the Company
and its securities. Subject to the provisions of the definition of
“Effectiveness Deadline,” the Company shall submit to
the SEC, within two (2) Business Days after the later of the date
that (i) the Company learns that no review of a particular
Registration Statement will be made by the Staff or that the Staff
has no further comments on a particular Registration Statement (as
the case may be) and (ii) the consent of Legal Counsel is obtained
pursuant to Section 3(c) (which consent shall be immediately
sought), a request for acceleration of effectiveness of such
Registration Statement to a time and date not later than
forty-eight (48) hours after the submission of such
request.
(b) Subject to Section
3(p) of this Agreement, the Company shall prepare and file with the
SEC such amendments (including, without limitation, post-effective
amendments) and supplements to each Registration Statement and the
prospectus used in connection with each such Registration
Statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep each
such Registration Statement effective at all times during the
Registration Period for such Registration Statement, and, during
such period, comply with the provisions of the 1933 Act with
respect to the disposition of all Registrable Securities of the
Company required to be covered by such Registration Statement until
such time as all of such Registrable Securities shall have been
disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof as set forth in such Registration
Statement; provided, however, by 8:30 a.m. (New York time) on the
Business Day immediately following each Effective Date, the Company
shall file with the SEC in accordance with Rule 424(b) under the
1933 Act the final prospectus to be used in connection with sales
pursuant to the applicable Registration Statement (whether or not
such a prospectus is technically required by such rule) . In the
case of amendments and supplements to any Registration Statement
which are required to be filed pursuant to this Agreement
(including, without limitation, pursuant to this Section 3(b)) by
reason of the Company filing a report on Form 10-Q or Form 10-K or
any analogous report under the Securities Exchange Act of 1934, as
amended (the “1934
Act”), the Company shall have incorporated such report
by reference into such Registration Statement, if applicable, or
shall file such amendments or supplements with the SEC on the same
day on which the 1934 Act report is filed which created the
requirement for the Company to amend or supplement such
Registration Statement.
6
(c) The Company shall
(A) permit Legal Counsel and legal counsel for each other Investor
to review and comment upon (i) each Registration Statement at least
three (3) Business Days prior to its filing with the SEC and (ii)
all amendments and supplements to each Registration Statement
(including, without limitation, the prospectus contained therein)
(except for Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q, Current Reports on Form 8-K, and any similar or successor
reports) within a reasonable number of days prior to their filing
with the SEC, and (B) not file any Registration Statement or
amendment or supplement thereto in a form to which Legal Counsel or
any legal counsel for any other Investor reasonably objects. The
Company shall not submit a request for acceleration of the
effectiveness of a Registration Statement or any amendment or
supplement thereto or to any prospectus contained therein without
the prior consent of Legal Counsel, which consent shall not be
unreasonably withheld. The Company shall promptly furnish to Legal
Counsel and, upon each other Investor’s written request,
legal counsel for each such other Investor, without charge, (i)
copies of any correspondence from the SEC or the Staff to the
Company or its representatives relating to each Registration
Statement, provided that such correspondence shall not contain any
material, non-public information regarding the Company or any of
its Subsidiaries (as defined in the Purchase Agreement),
(ii) after the same is prepared and filed with the SEC, one
(1) copy of each Registration Statement and any amendment(s) and
supplement(s) thereto, including, without limitation, financial
statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, and all exhibits and
(iii) upon the effectiveness of each Registration Statement,
one (1) copy of the prospectus included in such Registration
Statement and all amendments and supplements thereto. The Company
shall reasonably cooperate with Legal Counsel and legal counsel for
each other Investor in performing the Company’s obligations
pursuant to this Section 3.
(d) The Company shall
promptly furnish to each Investor whose Registrable Securities are
included in any Registration Statement, without charge, (i) after
the same is prepared and filed with the SEC, at least one (1) copy
of each Registration Statement and any amendment(s) and
supplement(s) thereto, including, without limitation, financial
statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, all exhibits and each
preliminary prospectus, (ii) upon the effectiveness of each
Registration Statement, one (1) copy of the prospectus included in
such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may
reasonably request from time to time) and (iii) such other
documents, including, without limitation, copies of any preliminary
or final prospectus, as such Investor may reasonably request from
time to time in order to facilitate the disposition of the
Registrable Securities owned by such Investor, provided that any
such item which is available on the SEC’s XXXXX System (or
successor thereto) need not be furnished in physical
form.
7
(e) Upon the reasonable
request of an Investor, the Company shall use reasonable best
efforts to (i) register and qualify, unless an exemption from
registration and qualification applies, the resale by Investors of
the Registrable Securities covered by a Registration Statement
under such other securities or “blue sky” laws of all
applicable jurisdictions in the United States, (ii) prepare and
file in those jurisdictions, such amendments (including, without
limitation, post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii)
take such other actions as may be necessary to maintain such
registrations and qualifications 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, the Company shall
not be required in connection therewith or as a condition thereto
to (x) qualify to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(e), (y)
subject itself to general taxation in any such jurisdiction, or (z)
file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify Legal Counsel and
each Investor who holds Registrable Securities of the receipt by
the Company of any notification with respect to the suspension of
the registration or qualification of any of the Registrable
Securities for sale under the securities or “blue sky”
laws of any jurisdiction in the United States or its receipt of
actual notice of the initiation or threatening of any proceeding
for such purpose.
(f) The Company shall
notify Legal Counsel and each Investor in writing of the happening
of any event, as promptly as practicable after becoming aware of
such event, as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission 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 (provided that in no event shall such notice
contain any material, non-public information regarding the Company
or any of its Subsidiaries), and, subject to Section 3(p), promptly
prepare a supplement or amendment to such Registration Statement
and such prospectus contained therein to correct such untrue
statement or omission and deliver one (1) copy of such supplement
or amendment to Legal Counsel and each Investor (or such other
number of copies as Legal Counsel or such Investor may reasonably
request). The Company shall also promptly notify Legal Counsel and
each Investor in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, when a
Registration Statement or any post-effective amendment has become
effective (notification of such effectiveness shall be delivered to
Legal Counsel and each Investor by facsimile or e-mail on the same
day of such effectiveness and by overnight mail), and when the
Company receives written notice from the SEC that a Registration
Statement or any post-effective amendment will be reviewed by the
SEC, (ii) of any request by the SEC for amendments or supplements
to a Registration Statement or related prospectus or related
information, (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would
be appropriate; and (iv) of the receipt of any request by the SEC
or any other federal or state governmental authority for any
additional information relating to the Registration Statement or
any amendment or supplement thereto or any related prospectus. The
Company shall respond as promptly as practicable to any comments
received from the SEC with respect to each Registration Statement
or any amendment thereto (it being understood and agreed that the
Company’s response to any such comments shall be delivered to
the SEC no later than three (3) Business Days after the receipt
thereof).
8
(g) The Company shall
(i) use commercially reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of each
Registration Statement or the use of any prospectus contained
therein, or the suspension of the qualification, or the loss of an
exemption from qualification, of any of the Registrable Securities
for sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at the
earliest possible moment and (ii) immediately notify Legal Counsel
and each Investor who holds Registrable Securities of the issuance
of such order and the resolution thereof or its receipt of actual
notice of the initiation or threat of any proceeding for such
purpose.
(h) The Company shall
hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal
or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required to be disclosed in
such Registration Statement pursuant to the 1933 Act, (iii) the
release of such information is ordered pursuant to a subpoena or
other final, non-appealable order from a court or governmental body
of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in
violation of this Agreement or any other Transaction Document. The
Company agrees that it shall, upon learning that disclosure of such
information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means,
give prompt written notice to such Investor and allow such
Investor, at such Investor’s expense, to undertake
appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
(i) Without limiting
any obligation of the Company under the Purchase Agreement, the
Company shall use commercially reasonable efforts either to (i)
cause all of the Registrable Securities covered by each
Registration Statement to be listed on each 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, (ii)
secure designation and quotation of all of the Registrable
Securities covered by each Registration Statement on the OTC
Bulletin Board, or (iii) if, despite the Company’s efforts to
satisfy the preceding clauses (i) or (ii), the Company is
unsuccessful in satisfying the preceding clauses (i) or (ii),
without limiting the generality of the foregoing, to use
commercially reasonable efforts to arrange for at least two market
makers to register with the Financial Industry Regulatory Authority
(“FINRA”) as
such with respect to such Registrable Securities. In addition, the
Company shall cooperate with each Investor and any broker or dealer
through which any such Investor proposes to sell its Registrable
Securities in effecting a filing with FINRA pursuant to FINRA Rule
5110 as requested by such Investor. The Company shall pay all fees
and expenses in connection with satisfying its obligations under
this Section 3(i).
(j) The Company shall
cooperate with the Investors who hold Registrable Securities being
offered and, to the extent applicable, facilitate the timely
preparation and delivery of certificates representing the
Registrable Securities to be offered pursuant to a Registration
Statement and enable such certificates to be in such denominations
or amounts (as the case may be) as the Investors may reasonably
request from time to time and registered in such names as the
Investors may request.
9
(k) If requested by an
Investor, the Company shall as soon as practicable after receipt of
notice from such Investor and subject to Section 3(p) hereof, (i)
incorporate in a prospectus supplement or post-effective amendment
such information as an Investor reasonably requests to be included
therein relating to the sale and distribution of Registrable
Securities, including, without limitation, information with respect
to the number of Registrable Securities being offered or sold, the
purchase price being paid therefor and any other terms of the
offering of the Registrable Securities to be sold in such offering;
(ii) make all required filings of such prospectus supplement or
post-effective amendment after being notified of the matters to be
incorporated in such prospectus supplement or post-effective
amendment; and (iii) supplement or make amendments to any
Registration Statement or prospectus contained therein if
reasonably requested by an Investor holding any Registrable
Securities.
(l) The Company shall
use commercially reasonable efforts to cause the Registrable
Securities covered by a Registration Statement to be registered
with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such
Registrable Securities.
(m) The Company shall
make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of
the period covered thereby, an earnings statement (in form
complying with, and in the manner provided by, the provisions of
Rule 158 under the 0000 Xxx) covering a twelve-month period
beginning not later than the first day of the Company’s
fiscal quarter next following the applicable Effective Date of each
Registration Statement.
(n) The Company shall
otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC in connection with any
registration hereunder.
(o) Within one (1)
Business Day after a Registration Statement which covers
Registrable Securities is declared effective by the SEC, the
Company shall deliver, and shall cause legal counsel for the
Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement)
confirmation that such Registration Statement has been declared
effective by the SEC.
(p) Notwithstanding
anything to the contrary herein (but subject to the last sentence
of this Section 3(p)), at any time after the Effective Date of a
particular Registration Statement, the Company may delay the
disclosure of material, non-public information concerning the
Company or any of its Subsidiaries the disclosure of which at the
time is not, in the good faith opinion of the board of directors of
the Company, in the best interest of the Company and, in the
opinion of counsel to the Company, otherwise required (a
“Grace Period”),
provided that the Company shall promptly notify the Investors in
writing of the (i) existence of material, non-public information
giving rise to a Grace Period (provided that in each such notice
the Company shall not disclose the content of such material,
non-public information to any of the Investors) and the date on
which such Grace Period will begin and (ii) date on which such
Grace Period ends, provided further that (I) no Grace Period shall
exceed ten (10) consecutive days and during any three hundred sixty
five (365) day period all such Grace Periods shall not exceed an
aggregate of thirty (30) days, (II) the first day of any Grace
Period must be at least five (5) Trading Days after the last day of
any prior Grace Period and (III) no Grace Period may exist during
the sixty (60) Trading Day period immediately following the
Effective Date of such Registration Statement (provided that such
sixty (60) Trading Day period shall be extended by the number of
Trading Days during such period and any extension thereof
contemplated by this proviso during which such Registration
Statement is not effective or the prospectus contained therein is
not available for use) (each, an “Allowable Grace Period”). For
purposes of determining the length of a Grace Period above, such
Grace Period shall begin on and include the date the Investors
receive the notice referred to in clause (i) above and shall end on
and include the later of the date the Investors receive the notice
referred to in clause (ii) above and the date referred to in such
notice. The provisions of Section 3(g) hereof shall not be
applicable during the period of any Allowable Grace Period. Upon
expiration of each Grace Period, the Company shall again be bound
by the first sentence of Section 3(f) with respect to the
information giving rise thereto unless such material, non-public
information is no longer applicable. Notwithstanding anything to
the contrary contained in this Section 3(p), the Company shall
cause its transfer agent to deliver unlegended shares of Common
Stock to a transferee of an Investor in accordance with the terms
of the Purchase Agreement in connection with any sale of
Registrable Securities with respect to which such Investor has
entered into a contract for sale, and delivered a copy of the
prospectus included as part of the particular Registration
Statement to the extent applicable, prior to such Investor’s
receipt of the notice of a Grace Period and for which the Investor
has not yet settled.
10
(q) The Company shall
take all other reasonable actions necessary to expedite and
facilitate disposition by each Investors of its Registrable
Securities pursuant to each Registration Statement.
4. Obligations of the
Investors.
(a) At least five (5)
Business Days prior to the first anticipated filing date of each
Registration Statement, the Company shall notify each Investor in
writing of the information the Company requires from each such
Investor with respect to such Registration Statement. 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 a particular Investor that such Investor
shall 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 and maintain the effectiveness of the
registration of such Registrable Securities and shall execute such
documents in connection with such registration as the Company may
reasonably request.
(b) Each Investor, by
such Investor’s acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of each
Registration Statement hereunder, unless such Investor has notified
the Company in writing of such Investor’s election to exclude
all of such Investor’s Registrable Securities from such
Registration Statement.
(c) Each Investor
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 the
first sentence of 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until such
Investor’s receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3(g) or the first
sentence of Section 3(f) or receipt of notice that no supplement or
amendment is required. Notwithstanding anything to the contrary in
this Section 4(c), the Company shall cause its transfer agent to
deliver unlegended shares of Common Stock to a transferee of an
Investor in accordance with the terms of the Purchase Agreement in
connection with any sale of Registrable Securities with respect to
which such Investor has entered into a contract for sale prior to
the Investor’s receipt of a notice from the Company of the
happening of any event of the kind described in Section 3(g) or the
first sentence of Section 3(f) and for which such Investor has not
yet settled.
(d) Each Investor
covenants and agrees that it will comply with the prospectus
delivery requirements of the 1933 Act as applicable to it in
connection with sales of Registrable Securities pursuant to a
Registration Statement.
5. Expenses of
Registration. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and
3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, FINRA filing
fees (if any) and fees and disbursements of counsel for the Company
shall be paid by the Company.
11
6. Indemnification.
(a) To the fullest
extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor and each of its
directors, officers, managers, shareholders, members, partners,
employees, agents, advisors, representatives (and any other Persons
with a functionally equivalent role of a Person holding such titles
notwithstanding the lack of such title or any other title) and each
Person, if any, who controls such Investor within the meaning of
the 1933 Act or the 1934 Act and each of the directors, officers,
managers, shareholders, members, partners, employees, agents,
advisors, representatives (and any other Persons with a
functionally equivalent role of a Person holding such titles
notwithstanding the lack of such title or any other title) of such
controlling Persons (each, an “Indemnified Person”), against any
losses, obligations, claims, damages, liabilities, contingencies,
judgments, fines, penalties, charges, costs (including, without
limitation, court costs, reasonable attorneys’ fees and costs
of defense and investigation), amounts paid in settlement or
expenses, joint or several, (collectively, “Claims”) incurred in
investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or
other regulatory agency, body or the SEC, whether pending or
threatened, whether or not an indemnified party is or may be a
party thereto (“Indemnified
Damages”), to which any of them may become subject
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 in a Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other
“blue sky” laws of any jurisdiction in which
Registrable Securities are offered (“Blue Sky Filing”), or the omission
or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company files
any amendment thereof or supplement thereto with the SEC) or the
omission or alleged omission to state therein any material fact
necessary to make the statements made therein, in 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 1933 Act, the 1934 Act, any other law, including,
without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through (iii) being,
collectively, “Violations”). Subject to Section
6(c), the Company shall reimburse the Indemnified Persons, promptly
as such expenses are incurred and are due and payable, for any
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): (i) shall
not apply to a Claim by an Indemnified Person 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
such Indemnified Person for such Indemnified Person expressly for
use in connection with the preparation of such Registration
Statement or any such amendment thereof or supplement thereto, or
any preliminary or final prospectus, and (ii) shall not be
available to a particular Investor to the extent such Claim is
based on a failure of such Investor to deliver or to cause to be
delivered the prospectus made available by the Company (to the
extent applicable), including, without limitation, a corrected
prospectus, if such prospectus or corrected prospectus was timely
made available by the Company pursuant to Section 3(d) and then
only if, and to the extent that, following the receipt of the
corrected prospectus no grounds for such Claim would have existed;
and (iii) shall not 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 delayed. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of any of the
Registrable Securities by any of the Investors pursuant to Section
9.
12
(b) In connection with
any Registration Statement in which an Investor is participating,
such Investor agrees to severally and not jointly indemnify, hold
harmless and defend, to the same extent and in the same manner as
is set forth in Section 6(a), the Company, each of its directors,
each of its officers who signs the Registration Statement and each
Person, if any, who controls the Company within the meaning of the
1933 Act or the 1934 Act (each, an “Indemnified Party”), against any
Claim or Indemnified Damages to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as
such Claim or Indemnified Damages arise out of or are based upon
any Violation, in each case, to the extent, and only to the extent,
that such Violation occurs in reliance upon and in conformity with
written information furnished to the Company by such Investor
expressly for use in connection with such Registration Statement or
any preliminary or final prospectus; and, subject to Section 6(c)
and the below provisos in this Section 6(b), such Investor will
reimburse an Indemnified Party any legal or other expenses
reasonably incurred by such Indemnified Party in connection with
investigating or defending any such Claim; provided, however, the
indemnity agreement contained in this Section 6(b) and the
agreement with respect to contribution contained in Section 7 shall
not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such
Investor, which consent shall not be unreasonably withheld or
delayed, provided further that such Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified
Damages as does not exceed the net proceeds to such Investor as a
result of the applicable sale of Registrable Securities pursuant to
such Registration Statement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of such Indemnified Party and shall survive the transfer of
any of the Registrable Securities by any of the Investors pursuant
to Section 9.
(c) Promptly after
receipt by an Indemnified Person or Indemnified Party (as the case
may be) under this Section 6 of notice of the commencement of any
action or proceeding (including, without limitation, any
governmental action or proceeding) involving a Claim, such
Indemnified Person or Indemnified Party (as the case may be) shall,
if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party similarly noticed, to assume control
of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified
Party (as the case may be); provided, however, an Indemnified
Person or Indemnified Party (as the case may be) shall have the
right to retain its own counsel with the fees and expenses of such
counsel to be paid by the indemnifying party if: (i) the
indemnifying party has agreed in writing to pay such fees and
expenses; (ii) the indemnifying party shall have failed promptly to
assume the defense of such Claim and to employ counsel reasonably
satisfactory to such Indemnified Person or Indemnified Party (as
the case may be) in any such Claim; or (iii) the named parties to
any such Claim (including, without limitation, any impleaded
parties) include both such Indemnified Person or Indemnified Party
(as the case may be) and the indemnifying party, and such
Indemnified Person or such Indemnified Party (as the case may be)
shall have been advised by counsel that a conflict of interest is
likely to exist if the same counsel were to represent such
Indemnified Person or such Indemnified Party and the indemnifying
party (in which case, if such Indemnified Person or such
Indemnified Party (as the case may be) notifies the indemnifying
party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, then the indemnifying party
shall not have the right to assume the defense thereof and such
counsel shall be at the expense of the indemnifying party, provided
further that in the case of clause (iii) above the indemnifying
party shall not be responsible for the reasonable fees and expenses
of more than one (1) separate legal counsel for such Indemnified
Person or Indemnified Party (as the case may be). The Indemnified
Party or Indemnified Person (as the case may be) shall reasonably
cooperate with the indemnifying party in connection with any
negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person (as the case may be) which relates to such
action or Claim. The indemnifying party shall keep the Indemnified
Party or Indemnified Person (as the case may be) reasonably
apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. No indemnifying party
shall be liable for any settlement of any action, claim or
proceeding effected without its prior written consent; provided,
however, the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall,
without the prior written consent of the Indemnified Party or
Indemnified Person (as the case may be), consent to entry of any
judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party or Indemnified
Person (as the case may be) of a release from all liability in
respect to such Claim or litigation, and such settlement shall not
include any admission as to fault on the part of the Indemnified
Party. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person (as the case may be) with
respect to all third parties, firms or corporations relating to the
matter for which indemnification has been made. 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 or Indemnified Party (as the case may be) under this Section
6, except to the extent that the indemnifying party is materially
and adversely prejudiced in its ability to defend such action.
Notwithstanding anything to the contrary contained above or
otherwise in this Agreement, a Purchaser shall be entitled, as to
itself and any of its related Indemnified Parties, including
without limitation its agents and representatives, maintain the
control of the defense of any action for which it (or they) may
seek indemnification hereunder, and the Company and its counsel
shall fully cooperate in such defense as such Purchaser and its
counsel may request, all at the cost and expense of the Company
(including without limitation, the attorneys’ fees and other
costs and expenses of the Purchasers and their related Indemnified
Parties’ legal counsel). Any amounts for which the Company is
responsible pursuant to the immediately preceding sentence shall be
paid promptly to, or as directed by, such Purchaser from time to
time, and may be offset by such Purchaser, at its discretion,
against any amounts from time to time owed by such Purchaser to the
Company under the Transaction Documents.
13
(d) No Person involved
in the sale of Registrable Securities who is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale shall be entitled to
indemnification from any Person involved in such sale of
Registrable Securities who is not guilty of fraudulent
misrepresentation.
(e) 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 and when bills are received or Indemnified Damages are
incurred.
(f) The indemnity and
contribution agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party
or Indemnified Person against the indemnifying party or others, and
(ii) any liabilities the indemnifying party may be subject to
pursuant to the law.
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: (i) 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 of this Agreement, (ii) no Person involved in the sale of
Registrable Securities which Person is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale shall be entitled to contribution
from any Person involved in such sale of Registrable Securities who
was not guilty of fraudulent misrepresentation; and (iii)
contribution by any seller of Registrable Securities shall be
limited in amount to the amount of net proceeds received by such
seller from the applicable sale of such Registrable Securities
pursuant to such Registration Statement. Notwithstanding the
provisions of this Section 7, no Investor shall be required to
contribute, in the aggregate, any amount in excess of the amount by
which the net proceeds actually received by such Investor from the
applicable sale of the Registrable Securities subject to the Claim
exceeds the amount of any damages that such Investor has otherwise
been required to pay, or would otherwise be required to pay under
Section 6(b), by reason of such untrue or alleged untrue statement
or omission or alleged omission.
8. Reports Under the
1934 Act. With a view to making available to the Investors the
benefits of Rule 144, the Company agrees 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 1933 Act and the 1934 Act so long as the Company
remains subject to such requirements (it being understood and
agreed that nothing herein shall limit any obligations of the
Company under the Purchase Agreement) and the filing of such
reports and other documents is required for the applicable
provisions of Rule 144; and
14
(c) take all such
actions necessary to maintain its eligibility to sell such
securities pursuant to Rule 144; except if (i) there is material
non-public information regarding the Company which the
Company’s Board of Directors reasonably determines not to be
in the Company’s best interest to disclose and which the
Company is not otherwise required to disclose or (ii) there is a
significant business opportunity (including, but not limited to,
the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender
offer or other similar transaction) available to the Company which
the Company’s Board of Directors reasonably determines not to
be in the Company’s best interest to disclose and which the
Company would be required to disclose to comply with this Section
9, then the Company’s obligations under this Section 9 shall
be postponed for a period of time reasonably determined by the
Company’s Board of Directors.
9. Assignment of
Registration Rights. All or any portion of the rights under this
Agreement shall be automatically assignable by each Investor to any
transferee or assignee (as the case may be) of all or any portion
of such Investor’s Registrable Securities if: (i) such
Investor agrees in writing with such transferee or assignee (as the
case may be) to assign all or any portion of such rights, and a
copy of such agreement is furnished to the Company within a
reasonable time after such transfer or assignment (as the case may
be); (ii) the Company is, within a reasonable time after such
transfer or assignment (as the case may be), furnished with written
notice of (a) the name and address of such transferee or assignee
(as the case may be), and (b) the securities with respect to which
such registration rights are being transferred or assigned (as the
case may be); (iii) immediately following such transfer or
assignment (as the case may be) the further disposition of such
securities by such transferee or assignee (as the case may be) is
restricted under the 1933 Act or applicable state securities laws
if so required; (iv) at or before the time the Company receives the
written notice contemplated by clause (ii) of this sentence such
transferee or assignee (as the case may be) agrees in writing with
the Company to be bound by all of the provisions contained herein;
(v) such transfer or assignment (as the case may be) shall have
been made in accordance with the applicable requirements of the
Purchase Agreement; and (vi) such transfer or assignment (as the
case may be) shall have been conducted in accordance with all
applicable federal and state securities laws.
10. Amendment of
Registration Rights. Provisions of this Agreement may be amended
only with the written consent of the Company and the Investors. Any
amendment effected in accordance with this Section 10 shall be
binding upon each Investor and the Company, provided that no such
amendment shall be effective to the extent that it (1) applies to
less than all of the holders of the holders of Registrable
Securities, (2) imposes any monetary obligation or liability, or
any material obligation or liability, on any Investor without such
Investor’s prior written consent (which may be granted or
withheld in such Investor’s sole discretion) or (3) applies
retroactively. No waiver shall be effective unless it is in writing
and signed by an authorized representative of the waiving party,
provided that the Investors (in a writing signed by all of the
Investors) may waive any provision of this Agreement, and any
waiver of any provision of this Agreement made in conformity with
the provisions of this Section 10 shall be binding on each
Investor, provided that no such waiver shall be effective to the
extent that it (1) applies to less than all the Investors (unless a
party gives a waiver as to itself only) or (2) imposes any monetary
obligation or liability, or any material obligation or liability,
on any Investor without such Investor’s prior written consent
(which may be granted or withheld in such Investor’s sole
discretion). No consideration shall be offered or paid to any
Person to amend or consent to a waiver or modification of any
provision of this Agreement unless the same consideration also is
offered to all of the parties to this Agreement.
15
11. Miscellaneous.
(a) This Agreement
shall be effective as of the date hereof. This Agreement shall
automatically terminate as to any Registrable Securities, at such
time when the Investors of such Registrable Securities ceases to
hold or be entitled to any such Registrable Securities except that
the obligations of such Investors under Sections 4 and 6 shall
survive such termination. This Agreement shall terminate
automatically, and the Company shall have no further obligations
hereunder, at such time when no Investor holds Registrable
Securities.
(b) Solely for purposes
of this Agreement, a Person is deemed to be a holder of Registrable
Securities whenever such Person owns, or is deemed to own, of
record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or
election received from such record owner of such Registrable
Securities.
(c) Any notices,
consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party);
(iii) by electronic mail (provided confirmation of transmission is
electronically generated and kept on file by the sending party); or
(iv) one (1) Business Day after deposit with a nationally
recognized overnight delivery service with next day delivery
specified, in each case, properly addressed to the party to receive
the same. The addresses, facsimile numbers and e-mail addresses for
such communications shall be:
If to
the Company:
0000
Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX
00000
Facsimile:
E-mail
address:
Attention: Chief
Financial Officer
If to
the Transfer Agent:
Action
Stock Transfer Corp.
0000 X.
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000
Facsimile:
E-mail
address:
Attention:
16
If to
the Legal Counsel:
Xxxxxx Xxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Phone:
E-mail
address:
If to a
Purchaser, to its address, facsimile number or e-mail address (as
the case may be) set forth on the Schedule of Purchasers attached
to the Purchase Agreement, with copies to such Purchaser’s
representatives as set forth on the Schedule of Purchasers, or to
such other address and/or facsimile number and/or to the attention
of such other Person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A)
given by the recipient of such notice, consent, waiver or other
communication, (B) mechanically or electronically generated by the
sender’s facsimile machine or e-mail transmission containing
the time, date and recipient facsimile number or e-mail address or
(C) provided by a courier or overnight courier service shall be
rebuttable evidence of personal service, receipt by facsimile or
receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above,
respectively.
(d) Failure of any
party to exercise any right or remedy under this Agreement or
otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof. The Company and each
Investor acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that each party hereto shall be
entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Agreement by any other party
hereto and to enforce specifically the terms and provisions hereof
(without the necessity of showing economic loss and without any
bond or other security being required), this being in addition to
any other remedy to which any party may be entitled by law or
equity.
(e) All questions
concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal
laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of
New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in
an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of
this Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
17
(f) This Agreement, the
other Transaction Documents, the schedules and exhibits attached
hereto and thereto and the instruments referenced herein and
therein constitute the entire agreement among the parties hereto
and thereto solely with respect to the subject matter hereof and
thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and
therein. This Agreement, the other Transaction Documents, the
schedules and exhibits attached hereto and thereto and the
instruments referenced herein and therein supersede all prior
agreements and understandings among the parties hereto solely with
respect to the subject matter hereof and thereof; provided,
however, nothing contained in this Agreement or any other
Transaction Document shall (or shall be deemed to) (i) have any
effect on any agreements any Investor has entered into with, or any
instrument that any Investor received from, the Company or any of
its Subsidiaries prior to the date hereof with respect to any prior
investment made by such Investor in the Company, (ii) waive, alter,
modify or amend in any respect any obligations of the Company or
any of its Subsidiaries or any rights of or benefits to any
Investor or any other Person in any agreement entered into prior to
the date hereof between or among the Company and/or any of its
Subsidiaries and any Investor or any instrument that any Investor
received prior to the date hereof from the Company and/or any of
its Subsidiaries and all such agreements and instruments shall
continue in full force and effect or (iii) limit any obligations of
the Company under any of the other Transaction
Documents.
(g) Subject to
compliance with Section 9 (if applicable), this Agreement shall
inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto. This
Agreement is not for the benefit of, nor may any provision hereof
be enforced by, any Person, other than the parties hereto, their
respective permitted successors and assigns and the Persons
referred to in Sections 6 and 7 hereof.
(h) The headings in
this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. Unless the context
clearly indicates otherwise, each pronoun herein shall be deemed to
include the masculine, feminine, neuter, singular and plural forms
thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed
broadly as if followed by the words “without
limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like
import refer to this entire Agreement instead of just the provision
in which they are found.
(i) This Agreement may
be executed in two or more counterparts, all of which 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. In the event that any signature is delivered by
facsimile transmission or by an e-mail which contains a portable
document format (.pdf) file of an executed signature page, such
signature page 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 signature page were an
original thereof.
(j) Each party shall do
and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other
party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
18
(k) The language used
in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict
construction will be applied against any party. Notwithstanding
anything to the contrary set forth in Section 10, terms used in
this Agreement but defined in the other Transaction Documents shall
have the meanings ascribed to such terms on the Closing Date in
such other Transaction Documents unless otherwise consented to in
writing by each Investor.
(l) All consents and
other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this
Agreement, by the Investors.
(m) The obligations of
each Investor under this Agreement and the other Transaction
Documents are several and not joint with the obligations of any
other Investor, and no Investor shall be responsible in any way for
the performance of the obligations of any other Investor under this
Agreement or any other Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by
any Investor pursuant hereto or thereto, shall be deemed to
constitute the Investors as, and the Company acknowledges that the
Investors do not so constitute, a partnership, an association, a
joint venture or any other kind of group or entity, or create a
presumption that the Investors are in any way acting in concert or
as a group or entity with respect to such obligations or the
transactions contemplated by the Transaction Documents or any
matters, and the Company acknowledges that the Investors are not
acting in concert or as a group, and the Company shall not assert
any such claim, with respect to such obligations or the
transactions contemplated by this Agreement or any of the other the
Transaction Documents. Each Investor shall be entitled to
independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of any
other Transaction Documents, and it shall not be necessary for any
other Investor to be joined as an additional party in any
proceeding for such purpose. The use of a single agreement with
respect to the obligations of the Company contained herein was
solely in the control of the Company, not the action or decision of
any Investor, and was done solely for the convenience of the
Company and not because it was required or requested to do so by
any Investor. It is expressly understood and agreed that each
provision contained in this Agreement and in each other Transaction
Document is between the Company and an Investor, solely, and not
between the Company and the Investors collectively and not between
and among Investors.
[Signature
pages follow.]
19
IN WITNESS WHEREOF, the Purchasers and the Company have
caused their respective signature page to this Registration Rights
Agreement to be duly executed as of the date first written
above.
|
|
Address
for Notice:
0000
Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Attn:
Chief Financial Officer
E-mail
|
|
By:_/s/
Xxxx X. Xxxxxxxxx ___________________
Name:
Xxxx X. Xxxxxxxxx
Title:
Chief Financial Officer
|
Fax
|
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Opaleye, L.P.
Signature of Authorized Signatory of Purchaser:
/s/Xxxxx
Xxxxxxxxx
Name of Authorized Signatory:
Xxxxx Xxxxxxxxx
Title of Authorized Signatory:
General Manager
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
21
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Xxxxx X. Xxxxxxx
Signature of Authorized Signatory of Purchaser:
/s/Xxxxx
X. Xxxxxxx
Name of Authorized Signatory:
Xxxxx X. Xxxxxxx
Title of Authorized Signatory:
Individual
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
22
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Xxxxxx Xxxxxxx
Signature of Authorized Signatory of Purchaser:
/s/Xxxxxx
Xxxxxxx
Name of Authorized Signatory:
Xxxxxx Xxxxxxx
Title of Authorized Signatory:
Individual
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
Address for Notice to Purchaser:
23
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
GCI Partners Opportunity Fund, LP
Signature of Authorized Signatory of Purchaser:
/s/
Xxxxx X. Xxxxx
Name of Authorized Signatory:
Xxxxx X. Xxxxx
Title of Authorized Signatory:
Managing member of GCI Partners, LLC
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
24
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Xxxxx X. Xxxxx
Signature of Authorized Signatory of Purchaser:
/s/
Xxxxx X. Xxxxx
Name of Authorized Signatory:
Xxxxx X. Xxxxx
Title of Authorized Signatory:
Individual
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
25
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Meera Holdings LLC
Signature of Authorized Signatory of Purchaser:
/s/
Xxxxxx Xxxxxxxxx
Name of Authorized Signatory:
Xxxxxx Xxxxxxxxx
Title of Authorized Signatory:
Manager and Authorized Representative
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
26
IN WITNESS WHEREOF, the undersigned has
caused this Registration Rights Agreement to be duly executed by an
authorized signatory as of the date first indicated
above.
Name of Purchaser:
Nainoor Xxxxxxx
Signature of Authorized Signatory of Purchaser:
/s/
Nainoor Xxxxxxx
Name of Authorized Signatory:
Nainoor Xxxxxxx
Title of Authorized Signatory:
Individual
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
27
