REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
This
REGISTRATION RIGHTS AGREEMENT, dated as of June 3, 2021 (this
“Agreement”), is entered
into by and among Liberated
Syndication, Inc., a Nevada corporation (the “Company”), and each of
the parties set forth in Schedule A to this Agreement
(together, the “Purchasers”). Capitalized
terms used in this Agreement but not otherwise defined have the
meanings set forth in Annex I to this Agreement or in
the Stock Purchase Agreement, as applicable.
RECITALS
A. The Company
and the Purchasers are parties to the Stock Purchase Agreement,
dated March 29, 2021 (the “Stock Purchase
Agreement”), pursuant to which the Company is selling
to the Purchasers, and the Purchasers are purchasing from the
Company, shares of Common Stock.
B. As a
condition to the obligations of the Company and the Purchasers
under the Stock Purchase Agreement, the Company and the Purchasers
are entering into this Agreement for the purpose of granting
certain registration rights and certain other rights to the
Purchasers.
NOW
THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Company and each of the Purchasers, severally and not jointly,
hereby agree as follows:
ARTICLE I
REGISTRATION RIGHTS
Section
1.1 Initial Shelf Registration Statement.
(a) The
Company shall prepare and file an initial Shelf Registration
Statement (the “Initial Shelf Registration
Statement”) under the Securities Act covering all
Registrable Securities no later than August 16, 2021 (the
“Filing
Deadline”) and shall use its commercially reasonable
efforts to cause such Initial Shelf Registration Statement to
become effective on or as soon as practicable after its filing but
no later than December 15, 2021 (the “Effectiveness Deadline”).
As soon as practicable following the date that the Initial Shelf
Registration Statement becomes effective, but in any event no later
than one Business Day after such date, the Company shall provide
the Holders with a copy of the notice of effectiveness of such
Initial Shelf Registration Statement filed by the
Commission.
(b) The
Company shall use its commercially reasonable efforts to cause such
Initial Shelf Registration Statement filed to be continuously
effective under the Securities Act until the earliest of (i) all
Registrable Securities covered by the Initial Shelf Registration
Statement have been distributed in the manner set forth and as
contemplated in such Initial Shelf Registration Statement and (ii)
there are no longer any Registrable Securities outstanding (the
“Effectiveness
Period”).
(c) When
declared effective, the Initial Shelf Registration Statement
(including the documents incorporated therein by reference) shall
comply as to form in all material respects with all applicable
requirements of the Securities Act and the Exchange Act and shall
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of any
prospectus contained in such Initial Shelf Registration Statement,
in the light of the circumstances under which a statement is
made).
Section
1.2 Subsequent Shelf Registration Statement.
(a) In the
event that the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective
under the Securities Act for any reason at any time during the
Effectiveness Period, the Company shall use its commercially
reasonable efforts to promptly cause such Shelf Registration
Statement to again become effective under the Securities Act
(including obtaining the prompt withdrawal of any order suspending
the effectiveness of such Shelf Registration Statement), and shall
use its commercially reasonable efforts to promptly amend such
Shelf Registration Statement in a manner reasonably expected to
result in the withdrawal of any order suspending the effectiveness
of such Shelf Registration Statement or file an additional
registration statement (a “Subsequent Shelf Registration
Statement”) for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act
registering the resale of Registrable Securities.
(b) If a
Subsequent Shelf Registration Statement is filed, the Company shall
use its commercially reasonable efforts to (i) cause such
Subsequent Shelf Registration Statement to become effective under
the Securities Act promptly after its filing and (ii) keep such
Subsequent Shelf Registration Statement continuously effective and
usable until the end of the Effectiveness Period.
Section 1.3 Shelf Takedown Notice. At any time that
a Shelf Registration Statement is effective, if a holder of
Registrable Securities covered by such Shelf Registration Statement
delivers a notice to the Company (a “Shelf Takedown Notice”)
stating that the holder intends to effect an offering of all or
part of its Registrable Securities included in such Shelf
Registration Statement (a “Shelf Takedown”) and the
Company is eligible to use such Shelf Registration Statement for
such Shelf Takedown, then the Company shall take all actions
reasonably required, including amending or supplementing (a
“Shelf
Supplement”) such Shelf Registration Statement, to
enable such Registrable Securities to be offered and sold as
contemplated by such Shelf Takedown Notice. Each Shelf Takedown
Notice shall specify the number of Registrable Securities to be
offered and sold under the Shelf Takedown. The Company shall
prepare and file with the Commission a Shelf Supplement within 10
Business Days after the date on which it received the Shelf
Takedown Notice and, if such Shelf Supplement is an amendment to
such Shelf Registration Statement, shall use its best efforts to
cause such Shelf Supplement to be declared effective by the
Commission as soon as practicable thereafter.
Section 1.4 Failure to Obtain and Maintain Effectiveness;
Liquidated Damages. If:
(a) the
Company (i) has not filed the Initial Shelf Registration Statement
with the Commission on or prior to the Filing Deadline (a
“Filing
Failure”) or (ii) the Initial Shelf Registration
Statement is not declared effective by the Commission on or prior
to the Effectiveness Deadline (an “Effectiveness Failure”)
(in each case, other than due to the inaccuracy or omission of any
information relating to any Holder provided in writing or required
to be provided by or on behalf of a Holder to the Company for
inclusion in such Initial Shelf Registration Statement),
or
(b) during the
Effectiveness Period, the Shelf Registration Statement ceases to
remain continuously effective or the Holders are otherwise not
permitted to resell Registrable Securities pursuant to the Shelf
Registration Statement for more than 10 consecutive calendar days
or more than an aggregate of 15 calendar days (which need not be
consecutive calendar days) during any 12-month period (other than
due to the inaccuracy or omission of any information relating to
any Holder provided in writing or required to be provided by or on
behalf of a Holder to the Company for inclusion in the Shelf
Registration Statement) (a “Maintenance
Failure”);
then
Company shall pay to each holder of Registrable Securities relating
to such Registration Statement an amount in cash equal to one
percent (1%) of such Holder’s Purchase Price for such
Registrable Securities: (1) on the date of such Filing Failure,
Effectiveness Failure or Maintenance Failure, as applicable, and
(2) on every 30 day anniversary of (I) a Filing Failure until such
Filing Failure is cured; (II) an Effectiveness Failure until such
Effectiveness Failure is cured; and (III) a Maintenance
Failure until such Maintenance Failure is cured. The payments to
which a holder of Registrable Securities shall be entitled pursuant
to this Section 1.4
are referred to herein as “Registration Delay
Payments.” Each Holder agrees and acknowledges that
the sums payable by the Company hereunder represent a reasonable
estimate of the Holder’s damages hereunder and that Holder
shall be entitled to such sum as liquidated damages, which shall be
Holder’s sole and exclusive remedy; provided, however, the
Company shall not be liable for Registration Delay Payments to any
Holder in any month or 30 day period in excess of one percent (1%)
of such Holder’s Purchase Price until the Effectiveness
Deadline, after which the Company shall not be liable for
Registration Delay Payments to any Holder in any month or 30 day
period in excess of two percent (2%) of such Holder’s
Purchase Price.
Section 1.5 Expenses.
(a) The
Company shall pay all Registration Expenses in connection with any
Shelf Registration Statement whether or not any sale is made
pursuant to such Shelf Registration Statement.
(b) “Registration
Expenses” means all expenses incident to the
Company’s performance under or compliance with this Agreement
to effect the registration of Registrable Securities, file a Shelf
Registration Statement and any preliminary prospectus or final
prospectus contained therein, including any free writing prospectus
related thereto or any amendment or supplement thereof, pursuant to
this Agreement and the disposition of such securities, including,
without limitation, all registration, filing, securities exchange
listing and fees, all registration, filing, qualification and other
fees and expenses of complying with securities or blue sky laws,
fees of the Financial Industry Regulatory Authority, transfer taxes
and fees of transfer agents and registrars, all word processing,
duplicating and printing expenses, and the fees and disbursements
of independent public accountants and counsel for the Company,
including the expenses of any special audits or
“comfort” letters required by or incident to such
performance and compliance.
(c) The
Company will not be responsible for legal fees incurred by Holders
in connection with the exercise of such Holders’ rights under
this Agreement except as otherwise specifically set forth in this
Agreement or the Stock Purchase Agreement.
Section
1.6 Indemnification.
(a) Indemnification
by the Company. In the event of a registration of any
Registrable Securities under the Securities Act pursuant to this
Agreement, the Company shall indemnify and hold harmless each
Holder, its directors, officers, partners, members, employees,
investment advisers, agents, representatives and managers, and each
other Person, if any, who controls such Holder, within the meaning
of the Securities Act and the Exchange Act, and the directors,
officers, partners, members, employees, investment advisers,
agents, representatives and managers of such controlling Person,
against any losses, claims, damages, expenses or liabilities
(including reasonable attorneys’ fees and expenses),
including any of the foregoing incurred in settlement of any
litigation commenced or threatened by any party other than a Holder
(collectively, “Losses”), joint or
several, to which such Holder or controlling Person or directors,
officers, employees, agents, representatives or managers may become
subject under the Securities Act, the Exchange Act or otherwise,
insofar as such Losses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact (in the case of any prospectus, in light of the
circumstances under which such statement is made) contained in the
Shelf Registration Statement or any other registration statement
contemplated by this Agreement, any preliminary prospectus or final
prospectus contained therein, or any free writing prospectus
related thereto, 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 (in the case of a prospectus, in
light of the circumstances under which they were made) not
misleading; provided, however, that the Company will not be liable
in any such case if and to the extent that any such Loss arises out
of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with
information furnished by such Holder or such controlling Person in
writing specifically for use in the Shelf Registration Statement or
such other registration statement, or prospectus supplement
relating to the Registrable Securities, or any amendment or
supplement thereto.
(b) Indemnification
by the Holders. Each Holder agrees severally and not jointly
to indemnify and hold harmless the Company, its directors,
officers, employees, representatives and agents and each Person, if
any, who controls the Company within the meaning of the Securities
Act or of the Exchange Act to the same extent as the foregoing
indemnity from the Company to the Holders, but only with respect to
information regarding such Holder furnished in writing by or on
behalf of such Holder expressly for inclusion in the Shelf
Registration Statement or prospectus supplement relating to the
Registrable Securities, or any amendment or supplement thereto. The
maximum liability of each Holder for any such indemnification shall
not exceed the amount of net proceeds received by such Holder from
the sale of such Holder’s Registrable
Securities.
(c) Notice.
Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying
party hereunder, 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 any indemnified
party other than under this Section 1.6(c) except to the
extent that the indemnifying party is materially prejudiced by such
failure. 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 reasonably 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 1.6 for any legal
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; provided,
however, that, (i) if the indemnifying party has failed to assume
the defense and employ counsel reasonably satisfactory to the
indemnified party or (ii) if the defendants in any such action
include both the indemnified party and the indemnifying party and
counsel to the indemnified party shall have concluded that there
may be reasonable defenses available to the indemnified party that
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 or representation by both parties by the same
counsel is otherwise inappropriate under the applicable standards
of professional conduct, then the indemnified party shall have the
right to select a separate counsel and to assume such legal defense
and otherwise to participate in the defense of such action, with
the reasonable expenses and fees of such separate counsel and other
reasonable expenses related to such participation to be reimbursed
by the indemnifying party as incurred. Notwithstanding any other
provision of this Agreement, the indemnifying party shall not
settle any indemnified claim without the consent of the indemnified
party, unless the settlement thereof imposes no liability or
obligation on, includes a complete release from liability of, and
does not contain any admission of wrongdoing by, the indemnified
party.
(d) Contribution.
If the indemnification provided for in this Section 1.6 is held by a court
or government agency of competent jurisdiction to be unavailable to
the Company or any Holder or is insufficient to hold them harmless
in respect of any Losses, then each such indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of
such Losses in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of such Holder on
the other in connection with the statements or omissions which
resulted in such Losses, as well as any other relevant equitable
considerations; provided,
however, that in no event shall such Holder be required to
contribute an aggregate amount in excess of the dollar amount of
proceeds received by such Holder from the sale of Registrable
Securities giving rise to such indemnification less the amount of
any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. The relative fault of the Company on the one hand
and each Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact has been made by, or relates to, information supplied
by such party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this paragraph
were to be determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable
considerations referred to in the first sentence of this paragraph.
The amount paid by an indemnified party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed
to include any legal and other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
Loss which is the subject of this paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
Person who is not guilty of such fraudulent
misrepresentation.
(e) Other
Indemnification. The provisions of this Section 1.6 shall be in
addition to any other rights to indemnification or contribution
which an indemnified party may have pursuant to law, equity,
contract or otherwise.
Section 1.7 Rule 144 Reporting. With a view to
making available the benefits of certain rules and regulations of
the Commission that may permit the sale of the Registrable
Securities to the public without registration, the Company
shall:
(a) make and
keep public information regarding the Company available, as those
terms are understood and defined in Rule 144;
(b) file with
the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange
Act;
(c) upon the
request of any Holder, together with its Affiliates, wishing to
sell any Registrable Securities under Rule 144 on a date no less
than six (6) months after the date on which the Purchased
Securities are issued, and at the Company’s sole expense,
cause its legal counsel to issue a Rule 144 legal opinion for the
resale of the Purchased Securities, as long as the conditions of
Rule 144 apply. If the Company does not cause its counsel to issue
a Rule 144 legal opinion within ten (10) Business Days of a request
by the Holder, then the Holder may choose its own legal counsel to
issue said opinion, which the Company will not unreasonably oppose
and shall take all commercially reasonable steps to facilitate, and
the Company shall reimburse the Holder for all of its legal fees
related thereto; and
(d) so long as
a Holder, together with its Affiliates, owns any Registrable
Securities, (i) unless otherwise available at no charge by access
electronically to the Commission’s XXXXX filing system (or
any successor system), furnish to such Holder forthwith upon
request a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as such
Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such
securities without registration and (ii) to the extent accurate,
furnish to such Holder upon reasonable request a written statement
of the Company that it has complied with the reporting requirements
of Rule 144.
Section 1.8 Obligations of the Holder.
(a) It shall be a
condition precedent to the obligations of the Company to effect the
registration pursuant to this Agreement with respect to the
Registrable Securities of a particular Holder that such Holder
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 the registration of such Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least ten
trading days prior to the first anticipated filing date of a Shelf
Registration Statement, the Company shall notify each Holder of the
information the Company requires from each such
Holder.
(b) Each Holder, by
such Holder’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 any Shelf
Registration Statement required to be filed hereunder, unless such
Holder has notified the Company in writing of such Holder’s
election to exclude all of such Holder’s Registrable
Securities from such Shelf Registration Statement.
(c) Upon receipt of any
notice from the Company of (i) the happening of any event of the
kind, as a result of which the prospectus included in any Shelf
Registration Statement that includes Registrable Securities, 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) or (ii)
the issuance of any stop order or other suspension of the
effectiveness of any Registration Statement that includes
Registrable Securities, each Holder shall immediately discontinue
disposition of Registrable Securities pursuant to such Shelf
Registration Statement until such Holder’s receipt of notice
from the Company that they may continue with such disposition, and,
if so directed by the Company, such Holder shall destroy all copies
in such Holder’s possession of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice and the Company shall pay to each holder of Registrable
Securities relating to such Registration Statement an amount in
cash equal to the Registration Delay Payments in accordance with
Section 1.4.
Section 1.9 Transfer or Assignment of Registration
Rights. The rights to cause the Company to register
Registrable Securities granted to the Purchasers by the Company
under this Article
I may be transferred or assigned by any Purchaser to one or
more transferees or assignees of Registrable Securities;
provided, however, that (a)
the Company is given written notice prior to any said transfer or
assignment, stating the name and address of each such transferee or
assignee and identifying the securities with respect to which such
registration rights are being transferred or assigned, and (b) each
such transferee or assignee assumes in writing responsibility for
its portion of the obligations of such Purchaser under this
Agreement.
ARTICLE II
TRANSFER
Section 2.1 Transferability. The Shares will be
freely transferable except as otherwise set forth in Section 2.2 below.
Section 2.2 Restrictions on Transfer. Without the
written consent of the Company, no Holder will transfer any Shares
in a transaction that, to the knowledge of such Holder, would
result in the acquisition of voting securities by any Person or
group that, after such acquisition, will beneficially own in excess
of 5% of the voting power of the Company; provided that such Holder
shall be permitted to transfer Shares to another Holder or its
Affiliates; provided, further, that nothing herein shall restrict
or limit a Purchaser’s ability to sell or otherwise dispose
of any Shares in open market transactions where the identity of the
purchaser is not readily available.
ARTICLE III
MISCELLANEOUS
Section 3.1 Communications. All notices and demands
provided for by this Agreement will be in writing and shall be
given by registered or certified mail, return receipt requested,
e-mail, air courier guaranteeing overnight delivery or personal
delivery to the following addresses:
(a) If to a
Purchaser, to such addresses indicated on Schedule A attached
hereto.
(b) If to the
Company:
Liberated
Syndication, Inc.
0000
Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX
00000
Attention: Xxxxxx
Xxxx
Email:
xxxxxx@xxxxxx.xxx
with a
copy to:
Faegre
Drinker Xxxxxx & Xxxxx LLP
0000
00xx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxx
Email:
xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
or, if
to a transferee of a Purchaser, to the transferee at the address
provided pursuant to Section 1.9 above. All notices
and communications shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; upon actual
receipt if sent by certified or registered mail, return receipt
requested, or regular mail, if mailed; upon actual receipt of
e-mail, if sent via e-mail; and upon actual receipt when delivered
to an air courier guaranteeing overnight delivery.
Section 3.2 Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including subsequent Holders of
Registrable Securities to the extent permitted.
Section 3.3 Assignment of Rights. All or any portion
of the rights and obligations of any Purchaser under this Agreement
may be transferred or assigned by such Purchaser in accordance with
Section 1.9
above.
Section 3.4 Recapitalization (Exchanges, etc. Affecting the
Registrable Securities). The provisions of this Agreement
shall apply to the full extent set forth in this Agreement with
respect to any and all shares of capital stock of the Company or
any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for or in substitution of, the Registrable
Securities, and shall be appropriately adjusted for combinations,
recapitalizations and the like occurring after the date of this
Agreement.
Section 3.5 Specific Performance. Damages in the
event of breach of this Agreement by a party to this Agreement
would be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such Person, in addition to and without
limiting any other remedy or right it may have, will have the right
to seek an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing
specifically the terms and provisions hereof, and each of the
parties hereto hereby waives (a) any and all defenses it may have
on the ground of lack of jurisdiction or competence of the court to
grant such an injunction or other equitable relief or that a remedy
at law would be adequate and (b) any requirement under any law to
post securities as a prerequisite to obtaining equitable relief.
The existence of this right will not preclude any such Person from
pursuing any other rights and remedies at law or in equity which
such Person may have.
Section 3.6 Counterparts. This Agreement may be
executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which counterparts, when
so executed and delivered, shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but one
and the same Agreement.
Section 3.7 Headings. The headings in this Agreement
are for convenience of reference only and shall not limit or
otherwise affect the meaning of this Agreement. Article and Section
references in this Agreement are references to the corresponding
Article and Section to this Agreement, unless otherwise specified.
All references to instruments, documents, contracts and agreements
are references to such instruments, documents, contracts and
agreements as the same may be amended, supplemented and otherwise
modified from time to time, unless otherwise specified. The word
“including” shall mean “including but not limited
to.” Whenever any determination, consent or approval is to be
made or given by a party under this Agreement, such action shall be
in such party’s sole discretion unless otherwise
specified
Section 3.8 Governing Law, Submission to
Jurisdiction.
(a) NOTWITHSTANDING
THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE
PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH
JURISDICTION.
(b) Each of
the parties to this Agreement irrevocably agrees that any legal
action or proceeding with respect to this Agreement or the
transactions contemplated hereby shall be brought and determined by
courts of the State of Delaware and the federal courts of the
United States of America located in Delaware, and each of the
parties to this Agreement irrevocably submits to the exclusive
jurisdiction of such courts solely in respect of any legal
proceeding arising out of or related to this
Agreement.
Section 3.9 Waiver of Jury Trial. THE PARTIES TO
THIS AGREEMENT EACH HEREBY WAIVE, AND AGREE TO CAUSE THEIR
AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED
HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE PARTIES TO THIS
AGREEMENT EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
Section 3.10 Severability of Provisions. Any
provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting or
impairing the validity or enforceability of such provision in any
other jurisdiction.
Section 3.11 Entire Agreement. This Agreement is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties in respect of the
subject matter contained in such agreements. This Agreement
supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
Section 3.12 Term; Amendment. This Agreement shall
automatically terminate and be of no further force and effect on
the date on which there are no Registrable Securities. This
Agreement may be amended only by means of a written amendment
signed by the Company and the Holders of a majority of the then
outstanding Registrable Securities; provided, however, that no such
amendment shall adversely affect the rights of any Holder hereunder
without the consent of such Holder.
Section 3.13 No Presumption Against Drafting Party.
The parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore,
waive the application of any law or rule of construction providing
that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or
document.
Section 3.14 Obligations Limited to Parties to
Agreement. Each of the parties to this Agreement covenants,
agrees and acknowledges that no Person other than the Purchasers,
their respective permitted assignees and the Company has any
obligation under this Agreement and that, notwithstanding that one
or more of the Company and the Purchasers or their respective
permitted assigns may be a corporation, partnership or limited
liability company, no recourse under this Agreement or under any
documents or instruments delivered in connection with this
Agreement will be had against any former, current or future
director, officer, employee, agent, general or limited partner,
manager, member, stockholder or Affiliate of any of the Company or
the Purchasers or their respective permitted assignees, or any
former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder or
Affiliate of any of the foregoing, whether by the enforcement of
any assessment or by any legal or equitable proceeding, or by
virtue of any applicable law, it being expressly agreed and
acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise by incurred by any former, current or
future director, officer, employee, agent, general or limited
partner, manager, member, stockholder or Affiliate of any of the
Company or the Purchasers or any of their respective permitted
assignees, or any former, current or future director, officer,
employee, agent, general or limited partner, manager, member,
stockholder or Affiliate of any of the foregoing, as such, for any
obligations of the Company or the Purchasers or their respective
permitted assignees under this Agreement or any documents or
instruments delivered in connection with this Agreement or for any
claim based on, in respect of or by reason of such obligation or
its creation.
Section 3.15 Attorneys’ Fees. In the event an
Action is brought to enforce or interpret any provision of this
Agreement, the prevailing party, or in the event that there is no
prevailing party, then the substantially prevailing party, shall be
entitled to recover documented fees and costs of legal counsel in
an amount to be fixed by the court.
Section 3.16 Press Release. The Company shall, by
5:00 p.m., New York City time, on the fourth business day
immediately following the date of this Agreement, issue one or more
press releases (collectively, the “Disclosure Press
Release”) disclosing all material terms contained in
this Agreement, and any other material, non-public information that
the Company or any of its officers, employees or agents on behalf
of the Company, has provided to the Purchasers at any time prior to
issuing the Disclosure Press Release.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above
written.
LIBERATED
SYNDICATION, INC.
By:
/s/ Xxxxxx Xxx
Xxxx
Name: Xxxxxx
Xxx Xxxx
Title: President
and COO
[PURCHASERS]
By:
_________________________________
Name:
Title:
ANNEX I
DEFINED TERMS
“Affiliate” means, with respect to
a specified Person, any other Person, directly or indirectly
controlling, controlled by or under direct or indirect common
control with such specified Person. For purposes of this
definition, “control” (including, with correlative
meanings, “controlling,” “controlled by,”
and “under common control with”) means the power to
direct or cause the direction of the management and policies of
such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
“Agreement” has the
meaning set forth in the introductory paragraph.
“Business Day” means any
day other than a Saturday, Sunday, any federal legal holiday or day
on which banking institutions in the State of Pennsylvania are
authorized or required by law or other governmental action to
close.
“Common Stock” means the
common stock, par value $0.001 per share, of the
Company.
“Commission” means the
United States Securities and Exchange Commission.
“Company” has the meaning
set forth in the introductory paragraph.
“Disclosure Press Release”
has the meaning set forth in Section 3.16.
“Effectiveness Deadline”
has the meaning set forth in Section 1.1(a).
“Effectiveness Failure”
has the meaning set forth in Section 1.4(a).
“Effectiveness Period” has
the meaning set forth in Section 1.1(b).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations promulgated thereunder.
“Filing Deadline” has the
meaning set forth in Section 1.1(a).
“Filing Failure” has the
meaning set forth in Section 1.4(a).
“Holder” means the record
holder of any Registrable Securities.
“Initial Shelf Registration
Statement” has the meaning set forth in Section 1.1(a).
“Losses” has the meaning
set forth in Section
1.6(a).
“Maintenance Failure” has
the meaning set forth in Section 1.4(b).
“Person” means any
individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company,
unincorporated organization, government or any agency,
instrumentality or political subdivision thereof, or any other form
of entity.
“Purchasers” has the
meaning set forth in the introductory paragraph.
“Registrable Securities”
means the Purchased Securities until the earliest of the following:
(a) when a registration statement covering such Registrable
Security has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such
effective registration statement; (b) when such Registrable
Security is held by the Company or one of its subsidiaries; (c)
when such Registrable Security has been sold in a private
transaction in which the transferor’s rights under this
Agreement are not assigned to the transferee of such securities;
and (d) the date on which such Registrable Security has been sold
pursuant to any section of Rule 144 under the Securities Act (or
any similar provision then in force under the Securities Act,
“Rule
144”) or any other exemption from the registration
requirements of the Securities Act as a result of which the legend
on any certificate or book-entry notation representing such
Registrable Security restricting transfer of such Registrable
Security has been removed.
“Registration Delay
Payments” has the meaning set forth in Section 1.4(b).
“Registration Expenses”
has the meaning set forth in Section 1.5(b).
“Rule 144” has the meaning
set forth in the definition of “Registrable
Securities”.
“Securities Act” means the
Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder.
“Shares” means shares of
Common Stock.
“Shelf Registration
Statement” means a registration statement under the
Securities Act to permit the public resale of the Registrable
Securities from time to time as permitted by Rule 415 of the
Securities Act (or any similar provision then in force under the
Securities Act).
“Shelf Supplement” has the
meaning set forth in Section 1.3.
“Shelf Takedown” has the
meaning set forth in Section 1.3.
“Shelf Takedown Notice”
has the meaning set forth in Section 1.3.
“Stock Purchase Agreement”
has the meaning set forth in the recitals.
“Subsequent Shelf Registration
Statement” has the meaning set forth in Section 1.2(a).
