Exhibit 4.4
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
August 16, 2006 by and between B.O.S. Better On-Line Solutions Ltd., an Israeli
corporation (the “Company”), and Laurus Master Fund, Ltd., a Cayman Islands
Company (the “Purchaser”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date
hereof, by and between the Purchaser and the Company (the “Securities Purchase
Agreement”), and pursuant to the Note and the Warrant referred to therein.
The
Company and the Purchaser hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the
Securities Purchase Agreement shall have the meanings given to such terms in
the Securities Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:
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“Affiliate” of
any specified person means any other person, directly or indirectly, controlling or
controlled by or under common control with such specified person. For the purpose of this
definition “control” as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the direction of the
management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
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“Commission” means
the Securities and Exchange Commission.
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“Ordinary
Shares” means the Company’s Ordinary Shares, NIS 4.00 nominal value per
share.
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“Effectiveness
Date” means the 135th day following the date hereof.
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“Effectiveness
Period” shall have the meaning set forth in Section 2(a).
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any successor
statute.
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“Filing
Date” means, with respect to the Registration Statement required to be filed
hereunder, a date no later than forty five (45) days following the date hereof, and with
respect to Ordinary Shares issuable to the Holder as a result of adjustments to the Fixed
Conversion Price made pursuant to Section 3.4 of the Secured Convertible Term Note or
Section 4 of the Warrant or otherwise, sixty (60) days (ninety (90) days if the request
is made between February 1 and March 31,) days after the occurrence of such event or the
date of the adjustment of the Fixed Conversion Price.
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“Holder” or
“Holders” means the Purchaser or any of its successors to the extent any
of them hold Registrable Securities, provided that only registered holders of Registrable
Securities shall be counted for purposes of calculating any proportion of holders
entitled to take any action, receive any damages or give any notice pursuant to this
Agreement.
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“Indemnified
Party” shall have the meaning set forth in Section 5(c).
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“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
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“Majority
Holders” shall means the Holders of a majority of the then outstanding aggregate
principal amount of Registrable Securities, provided that Registrable Securities which
have been sold or otherwise transferred pursuant to the Registration Statement or Rule
144 shall not be included in the calculation of Majority Holders.
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“Note” has
the meaning set forth in the Securities Purchase Agreement.
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“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.
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“Prospectus” means
the prospectus included in the 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 the 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.
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“Registrable
Securities” means the shares of Ordinary Shares issued upon the conversion of
the Note and issuable upon exercise of the Warrant.
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“Registration
Statement” means each registration statement required to be filed hereunder,
including the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre-and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference in such
registration statement.
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“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.
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“Securities
Act” means the Securities Act of 1933, as amended, and any successor statute.
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“Trading
Market” means any of the NASD OTC Bulletin Board, NASDAQ SmallCap Market, the
Nasdaq National Market, the American Stock Exchange, the New York Stock Exchange and the
Tel Aviv Stock Exchange.
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“Warrant”means
the Ordinary Shares Purchase Warrant issued pursuant to the Securities Purchase
Agreement.
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2. All
references in this Agreement to amendments or supplements to the Registration
Statement, any preliminary Prospectus or Prospectus shall be deemed to mean and
include the filing of any document under the Exchange Act, after the date of
such Registration Statement, preliminary Prospectus or Prospectus, as the case
may be, which is incorporated by reference therein.
Registration.
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(a) |
On
or prior to the Filing Date the Company shall prepare and file with the
Commission a Registration Statement covering the Registrable Securities
for an offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form F-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on Form
F-3, in which case such registration shall be on another appropriate form
in accordance herewith). The Company shall cause the Registration
Statement to become effective and remain effective as provided herein. The
Company shall use its reasonable commercial efforts to cause the
Registration Statement to be declared effective under the Securities Act
as promptly as possible after the filing thereof, but in any event no
later than the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep the Registration Statement continuously
effective under the Securities Act until the date which is the earlier
date of when (i) all Registrable Securities have been sold; (ii) all
Registrable Securities may be sold by non-Affiliates of the Company
immediately without registration under the Securities Act and without
volume restrictions pursuant to Rule 144(k), as determined by the counsel
to the Company on the basis of the Holders’ representations, pursuant
to a written opinion letter to such effect, addressed and acceptable to
the Company’s transfer agent; or (iii) the second anniversary of the
Closing Date (the “Effectiveness Period”). |
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(b) |
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, excluding a
suspension of all trading on the Trading Market, or otherwise) as to all
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 days in the
aggregate per year or more than 20 consecutive calendar days (defined as a
period of 365 days commencing on the date the Registration Statement is
declared effective); or (iv) the Ordinary Shares are not listed or quoted
on any Trading Market, or is suspended from trading on any Trading Market
(except for the Tel Aviv Stock Exchange) 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 Ordinary 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, equal to 1.0%
for each thirty (30) day period (prorated for partial periods) on a daily
basis of the outstanding principal amount of the Note. While such Event
continues, such liquidated damages shall be paid not less often than each
thirty (30) days. Any unpaid liquidated damages as of the date when an
Event has been cured by the Company shall be paid within seven (7)
business days following the date on which such Event has been cured by the
Company. |
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(c) |
Within
three business days of the Effectiveness Date, the Company shall cause its
counsel to issue a blanket opinion 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 Purchaser and confirmation by Purchaser 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 blanket opinion required by this
Section 2(c) shall be delivered to Purchaser within the time frame set
forth above. |
3. Registration
Procedures. If and whenever the Company is required by the provisions
hereof to effect the registration of any Registrable Securities under the
Securities Act, the Company will, by the Filing Date:
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(a) |
prepare
and file with the Commission the Registration Statement with respect to
such Registrable Securities, respond as promptly as possible to any
comments received from the Commission, and use its reasonable commercial
efforts to cause the Registration Statement to become and remain effective
for the Effectiveness Period with respect thereto, and promptly provide to
the Purchaser copies of all filings and Commission letters of comment
relating thereto; |
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(b) |
prepare
and file with the Commission such amendments and supplements to the
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 the
Registration Statement and to keep such Registration Statement effective
until the expiration of the Effectiveness Period; |
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(c) |
furnish
to the Purchaser such number of copies of the Registration Statement and
the Prospectus included therein (including each preliminary Prospectus) as
the Purchaser reasonably may request to facilitate the public sale or
disposition of the Registrable Securities covered by the Registration
Statement; |
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(d) |
use
its commercially reasonable efforts to register or qualify the Purchaser’s
Registrable Securities covered by the Registration Statement under the
securities or “blue sky” laws of such jurisdictions within the
United States as the Purchaser may reasonably request, 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; |
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(e) |
list
the Registrable Securities covered by the Registration Statement with any
securities exchange on which the Ordinary Shares of the Company are then
listed; |
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(f) |
immediately
notify the Purchaser at any time when a Prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event, of which the Company has knowledge, 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 in light of the circumstances then
existing; and |
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(g) |
make
available for inspection by the Purchaser and any attorney, accountant or
other agent retained by the Purchaser, all relevant publicly available,
non-confidential financial and other records, pertinent corporate
documents and properties of the Company as is customary for due diligence
examinations in connection with public offerings, and cause the Company’s
officers, directors and employees to supply all such relevant publicly
available non-confidential information reasonably requested by the
attorney, accountant or agent of the Purchaser. |
4. Registration
Expenses. All expenses relating to the Company’s compliance with
Sections 2 and 3 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses
(including reasonable 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 (to the extent such
counsel is required due to Company’s failure to meet any of its
obligations hereunder), are called “Registration Expenses”. All
selling commissions applicable to the sale of Registrable Securities,
including any fees 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 and not for any Selling Expenses. |
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(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 the Purchaser, and its officers, directors and each other
person, if any, who controls the Purchaser within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which the Purchaser, 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, and will reimburse the Purchaser, 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 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 (A) any untrue
statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by or on behalf of the
Purchaser or any such person in writing specifically for use in any such
document; (B) use of the Registration Statement or the related Prospectus
following a Discontinuation Event, provided Purchaser received prior
notice of such Discontinuation Event; or (C) if the Purchaser fails to
deliver a Prospectus, as then amended or supplemented, provided that the
Company shall have delivered to the Purchaser such Prospectus. |
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Notwithstanding
the foregoing, the Company shall not be liable for any losses, claims, damages or
liabilities by reason of any compromise, consent to entry of judgment, or settlement
effected without the Company’s prior written consent, which consent shall not be
unreasonably withheld or conditioned. |
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(b) |
In
the event of a registration of the Registrable Securities under the
Securities Act pursuant to this Agreement, the Purchaser 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 Purchaser 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 Purchaser 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 Purchaser specifically for
use in any such document. Notwithstanding the provisions of this
paragraph, the Purchaser shall not be required to indemnify any person or
entity in excess of the amount of the aggregate net proceeds received by
the Purchaser in respect of Registrable Securities in connection with any
such registration under the Securities Act. |
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(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 substantially 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. |
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(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 that an
Indemnified Party or any officer, director or controlling person thereof,
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, notwithstanding the fact that this Section 5 provides for
indemnification in such case, then the Indemnifying Party will contribute
to the aggregate losses, claims, damages or liabilities to which it may be
subject (after contribution from others) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
the relative fault of the Indemnified Party as well as any other relevant
equitable considerations. Relative fault shall be determined by reference
to, among other things, whether any untrue statement or omission or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information provided by the Indemnifying Party or
the Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. Notwithstanding the foregoing, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation. |
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(e) |
The
provisions of this Section 5 will remain in full force and effect and
survive the sale by the Purchaser of the Registrable Securities covered by
the Registration Statement. |
6. [Reserved].
7. Miscellaneous.
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(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. |
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(b) |
No
Piggyback on Registrations. Except as and to the extent specified in
Schedule 7(b) hereto, neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may, without the
consent of the Holder, which consent shall not be unreasonably withheld,
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 that have not
been fully satisfied. |
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(c) |
Compliance.
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Securities pursuant to the
Registration Statement. |
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(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 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 Section
7(d), 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; (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; |
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(e) |
Piggy-Back
Registrations. If at any time during the Effectiveness Period there is
not an effective Registration Statement covering all of the Registrable
Securities and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own
account or the account of others under the Securities Act of any of its
equity securities, other than on Form F-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 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 the consent of any
selling stockholder(s) to such inclusion under such registration
statement. |
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(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 Majority Holders. 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. |
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(g) |
Notices.
Any notice or request hereunder may be given to the Company or the
Purchaser 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 five (5) business days after the date when deposited in the mail
or three (3) business days after the date when deposited with the
overnight mail carrier, in the case of a Courier, the two (2) business
days 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: |
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If to the Company: |
B.O.S. Better On-Line Solutions Ltd.
To the address set forth under the Company's name on
the signature page hereto.
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with
a copy to:
Amit, Pollak, Matalon & Co.
NYP Tower, 00 Xxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 0 000-0000 |
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If to a Purchaser: |
To the address set forth under Purchaser's name on the
signature page hereto.
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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
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or
such other address as may be designated in writing hereafter in accordance with this
Section 7(g) by such person. |
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(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 as permitted under the Note and the Securities
Purchase Agreement with the prior written consent of the Company, which
consent shall not be unreasonably withheld. |
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(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
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 signature were
the original thereof. |
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(j) |
Governing
Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof. Each
party agrees that all Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
shall be commenced exclusively in the state and federal courts sitting in
the City of New York, Borough of Manhattan. Each party hereto 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 Proceeding, any claim
that it is not personally subject to the jurisdiction of any such court,
that such Proceeding is improper. Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in
any such Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at
the address in effect for 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. Each party
hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to
enforce any provisions hereunder, 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. |
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(k) |
Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. |
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(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. |
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(m) |
Headings.
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof. |
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SIGNATURE PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
B.O.S. BETTER ON-LINE SOLUTIONS LTD.
By: ____________________________
Name: Adiv Baruch Xxxxxxx Xxxxxxx
Title: CEO CFO |
LAURUS MASTER FUND, LTD.
By: _________________________
Name: _________________________
Title: _________________________ |
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Address for Notices: |
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| Beit Xxxxx, 000 XXX Xxxx |
000 Xxxxx Xxxxxx - 14th Floor |
| Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx 00000 Xxxxxx |
Xxx Xxxx, XX 00000 |
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| Attention: |
Xxxxxxx Xxxxxxx, CFO |
Attention: |
Xxxxx Grin |
| Facsimile: |
(000) 0 000-0000 |
Facsimile: |
000-000-0000 |
13
EXHIBIT A
[Month __, 200_]
[Transfer Agent]
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Re: |
B.O.S.
Better On-line Solutions Ltd. Registration Statement on Form [F-3] |
Ladies
and Gentlemen:
As
counsel to [company name], an Israeli corporation (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 Shareholders”), of
an aggregate of [amount] shares (the “Shares”) of the Company’s Ordinary
Shares.
A
Registration Statement on Form [F-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 Shareholders 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 Shareholders may be issued without restrictive
legend. The Company will advise you if the registration statement is not available or
effective at any point in the future.
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Very truly yours,
[Company counsel] |
Schedule A
| Selling Shareholder |
Shares
Being Offered |
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14
