REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
THIS
REGISTRATION RIGHTS AGREEMENT is made as of April 21, 2009 by and between
Sparking Events, Inc., a publicly owned Nevada corporation (the “Company”),
and the holders whose names are set forth on the signature page hereto (the
“Holder”
and, together with other Holders, the “Holders”).
RECITALS
WHEREAS,
Dragonfly Capital Partners, LLC a North Carolina limited liability corporation,
are the holders of three hundred fifty thousand (350,000) shares of the
Company’s common stock, $0.001 par value per share (“Common
Stock”);
WHEREAS,
AOCC Investments, Inc., a Florida corporation, is the holder of warrants to
purchase up to one hundred thousand (100,000) shares of the Company’s common
stock, $0.001 par value per share (the “Warrant Shares”);
WHEREAS,
Xxxxxx X. Xxxx, is the holder of warrants to purchase up to one hundred thousand
(100,000) shares of the Company’s common stock, $0.001 par value per share (the
“Warrant Shares”);
WHEREAS,
the Company has agreed with the Holders to file a registration statement with
the Securities and Exchange Commission to register the Common Stock and Warrant
Shares with the Commission on or before May 30, 2009 and to have same declared
effective on or before August 31, 2009.
NOW
THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1.
Certain
Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
“Commission”
shall mean the Securities and Exchange Commission of the United States or any
other U.S. federal agency at the time administering the Securities
Act.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder, or any similar United States
federal statute.
“Registrable
Securities” means (i) the Shares, (ii) the Warrant Shares and (iii) any
shares of Common Stock issued or issuable in respect of such Common Stock upon
any stock split, stock dividend, recapitalization, or similar
event. Shares of Common Stock shall only be treated as Registrable
Securities if they have not been (A) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction or (B)
sold or, in the opinion of counsel to the Holder, are available for sale in a
single transaction exempt from the registration and prospectus delivery
requirements of the Securities Act so that all transfer restrictions and
restrictive legends with respect thereto are removed upon the consummation of
such sale.
The terms
“register,”
“registered”
and “registration”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement.
“Registration
Expenses” shall mean all expenses, except as otherwise stated below,
incurred by the Company in complying with Section 2 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, fees and
disbursements of one counsel selected by the Holders for the Holders, Blue Sky
fees and expenses and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder, or any similar United States federal
statute.
“Selling
Expenses” shall mean all underwriting discounts, selling commissions and
stock transfer taxes applicable to the securities registered by
Holders.
2. Company
Registration. The Company shall
prepare, and, on or prior to thirty (30) days after the closing of the
consummation of the share exchange between APLUS International, LTd. and the
Company (the “Filing
Date”), file with the SEC a Registration Statement on Form S-1 (or, if
Form S-1 is not then available, on such form of Registration Statement as is
then available to effect a registration of the Registrable Securities) covering
the resale of the Registrable Securities, to the extent allowable under the 1933
Act and the rules and regulations promulgated thereunder (including Rule
416).
3. Expenses of
Registration.
(a)
Registration Expenses. The Company shall bear all Registration Expenses
incurred in connection with all registrations pursuant to Section
2.
(b) Selling
Expenses. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders and Other Holders shall be borne by the
Holders and Other Holders pro rata on the basis of the number of shares so
registered by the Holders and Other Holders.
4. Registration
Procedures. In the case of each registration, qualification or compliance
effected by the Company pursuant to this Agreement, the Company
will:
(a)
keep each Holder advised in writing as to the initiation of each
registration, qualification and compliance and as to the completion
thereof;
(b) prepare
and file with the Commission a registration statement and any amendments thereto
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective pursuant to Rule 415 under
the Securities Act at all times until such date as is the earlier
of: (i) the date on which all of the Registrable Securities have been
sold; and (ii) the date on which the Registrable Securities may be immediately
sold to the public without registration or restriction;
(c) furnish
to the Holders participating in such registration and to the underwriters of the
securities being registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other documents as
such Holders and underwriters may reasonably request in order to facilitate the
public offering of such securities;
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(d) use
its reasonable best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders;
(e) in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering.
(f)
cause all such
Registrable Securities registered pursuant to this Agreement hereunder to be
listed on a national securities exchange or trading system and each securities
exchange and trading system on which similar securities issued by the Company
are then listed;
(g) provide a transfer agent and registrar
for all Registrable Securities registered pursuant hereunder and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration; and
(h) use
its reasonable best efforts to furnish, at the request of any Holder, on the
date on which the Registrable Securities are sold to the underwriter,
(i) an opinion, dated such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and (ii) a “comfort” letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any.
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5.
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Indemnification.
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(a) By
Company. With respect to each registration, qualification or compliance effected
pursuant to this Agreement for which the Registrable Securities held by a Holder
are included, the Company will indemnify and hold harmless each such Holder, the
partners, members, officers, directors and stockholders of each Holder, legal
counsel and accountants for each Holder, any underwriter (as defined in Section
15 of the Securities Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act or the
Exchange Act, against all expenses, claims, losses, damages or liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation or alleged violation by the
Company of the Securities Act, or the Exchange Act, or any rule or regulation
promulgated under the Securities Act or the Exchange Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Holder, each such underwriter and each
person who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder, controlling person or underwriter and stated to be
specifically for use therein. If the Holders are represented by
counsel other than counsel for the Company, the Company will not be obligated
under this Section 5(a) to reimburse legal fees and expenses of more than one
separate counsel for Holders.
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(b) By
Holders. Each Holder will, severally and not jointly, if Registrable Securities
held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company’s securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, against all claims, losses, damages
and liabilities (or actions in respect thereof arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any 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, such Holders for any legal or any
other expenses reasonably incurred by them in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited in an amount equal to the net proceeds from the
offering received by such Holder, unless such registration liability arises out
of or is based on willful conduct by such Holder.
(c) Procedures.
Each party entitled to indemnification under this Section 5 (the “Indemnified
Party”) shall give notice to the party required to provide
indemnification (the “Indemnifying
Party”) promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party’s expense, and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Agreement unless the failure to give such notice is materially prejudicial to an
Indemnifying Party’s ability to defend such action and provided further that the
Indemnifying Party shall not assume the defense for matters as to which there is
a conflict of interest or separate and different defenses. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
6.
Information
By Holder.
Holders including any Registrable Securities in any registration shall furnish
to the Company such information regarding such Holders as shall be necessary to
enable the Company to comply with the provisions hereof in connection with any
registration, qualification or compliance referred to in this
Agreement.
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7.
Reports
Under Exchange Act. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the Commission that may at
any time permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make and keep public information
available, as those terms are understood and defined in Rule 144, at all times
so long as the Company is subject to the periodic reporting requirements under
Sections 13 or 15(d) of the Exchange Act;
(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; and
(c) furnish to any Holder, so long as the
Holder owns any Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of Rule 144, the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-1
(at any time after it so qualifies), (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably
requested in availing any Holder of any rule or regulation of the Commission
which permits the selling of any such securities without registration or
pursuant to such form.
8.
Limitations
on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the
Holders of a majority of the Registrable Securities then outstanding, enter into
any agreement with any holder or prospective holder of any securities of the
Company which would allow such holder or prospective holder (a) to include
such securities in any registration unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of such securities will not
reduce the amount of the Registrable Securities of the Holders that are included
or (b) to demand registration of any securities held by such holder or
prospective holder.
9.
Miscellaneous.
(a) Governing
Law. This Agreement will be governed by and construed under the laws of Nevada,
without regard to its principles of conflicts of laws.
(b) Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Holders of a majority of the Registrable
Securities, voting as a class. Any amendment or waiver effected in accordance
with this paragraph will be binding upon each Holder and the
Company. Notwithstanding the foregoing, this Agreement may not be
amended or terminated and the observance of any term hereunder may not be waived
with respect to any Holder without the written consent of such Holder, unless
such amendment, termination or waiver applies to all Holders in the same
fashion. The Company shall give prompt written notice of any
amendment or termination hereof or waiver hereunder to any party hereto that did
not consent in writing to such amendment, termination or waiver. Any
amendment, termination or waiver effected in accordance with this Section shall
be binding on all parties hereto, even if they do not execute such
consent. No waivers of or exceptions to any term, condition or
provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
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(c) Severability.
In the event that any provision of this Agreement becomes or is declared by a
court of competent jurisdiction to be illegally invalid, unenforceable or void,
this Agreement shall continue in full force and effect without said provision.
In such event, the parties shall negotiate, in good faith, a legal, valid and
binding substitute provision which most nearly effects the intent of the parties
in entering into this Agreement.
(d) Notices.
All notices to Holders will be mailed by registered or certified mail to the
addresses maintained in the Company’s records for such Holders. Notices will be
effective three (3) days after deposit in the U.S. Mail.
(e) Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together will constitute one and
the same instrument.
(f) Titles
and Subtitles. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
(g) Transfers, Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
(h) Entire
Agreement. This Agreement (including the Exhibits hereto, if
any) constitutes the full and entire understanding and agreement between the
parties with respect to the subject matter hereof, and any other written or oral
agreement relating to the subject matter hereof existing between the parties are
expressly canceled.
[Signatures
on following page]
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IN
WITNESS WHEREOF. the parties have executed this Registration Rights Agreement as
of the date first above written.
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By:
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Name:
Xxxx Xxxx
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Title: Chief
Executive Officer
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THE
HOLDERS:
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DRAGONFLY
CAPITAL PARTNERS LLC
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By:
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Name:
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Title:
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AOCC
INVESTMENTS, INC.
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By:
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Name:
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Title:
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XXXXXX
X. XXXX
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