REGISTRATION RIGHTS AGREEMENT
Exhibit 10.14
Execution Version
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is dated as of May _____, 2010, is by and
among ImaRx Therapeutics, Inc., a Delaware corporation (the “Purchaser” or the “Issuer”); and JRT
Productions, Inc., a California corporation, and Red Cat Productions, Inc., a California
corporation (the “Sellers”), in connection with (1) that certain Agreement and Plan of Merger,
dated as of March 17, 2010, (the “Merger Agreement”; the terms defined therein being used herein as
therein defined) by and among Sycamore Films, Inc., a Nevada corporation (“Subsidiary”); Sweet
Spot Productions, Inc., a California corporation (“Target”); JRT Productions, Inc., a California
corporation, Red Cat Productions, Inc., a California corporation (“Red Cat”), Xxxxxx Xxxxxx, and
Xxxxxx X. Xxxxxx, and ImaRx Therapeutics, Inc., a Delaware corporation and (2) that certain that
certain Agreement for the Purchase and Sale of Stock, dated as of March 17, 2010 (the “Stock
Exchange Agreement”), by and among Subsidiary; Purchaser, the Target; and those persons specified
on the Sellers Schedule attached to the Stock Exchange Agreement.
RECITALS
WHEREAS, the Issuer and the Sellers have entered into the Merger Agreement and the Stock
Exchange Agreement, pursuant to which Sellers shall be issued by the Issuer certain shares of
Issuer’s common stock, par value $0.0001, (the “Purchaser Shares”); and
WHEREAS, as an inducement to the Sellers to enter into the Merger Agreement and the Stock
Exchange Agreement the Issuer has agreed to provide the registration rights set forth in this
Agreement;
AGREEMENT
NOW THEREFORE, in consideration of the promises and the mutual agreements set forth herein,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions. In addition to definitions set forth in the Merger Agreement, for
purposes of this Agreement:
1.1. The term “Piggyback Registration Rights” means the rights of Sellers to include any and
all of Sellers’ Registrable Securities in any Registration Transaction as provided by Section 2.1
hereof.
1.2. The term “register,” “registered,” and “registration” refer to a registration effected by
preparing and filing with the SEC a registration statement or similar document in compliance with
the Securities Act of 1933, as amended (the “Securities Act”), and the declaration or ordering of
effectiveness of such registration statement or document by the SEC.
1.3. The term “Registrable Securities” means (i) any and all shares of Purchaser Stock issued
by the Issuer to Sellers pursuant to the Merger Agreement and the Stock Exchange Agreement; and
(ii) any stock of the Issuer issued to Sellers as a dividend or other distribution with respect to,
or in exchange for or in replacement of the shares referenced in clause (i) above.
1.4. The term “Registration Transaction” shall have the meaning assigned to it in Section
2.1(a) hereof.
1.5. The term “Request for Registration” shall have the meaning assigned to it in Section
2.1(b) hereof.
1.6. The term “SEC” means the Securities and Exchange Commission.
1.7. The term “Separate Registration Rights” means the rights of Sellers to have the Issuer
register any and all of Sellers’ Registrable Securities as provided by Section 2.2 hereof.
1.8. The term “Violation” means losses, claims, damages, or liabilities (joint or several) to
which a party hereto may become subject under the Securities Act, the Securities Exchange Act of
1934, as amended (the “Exchange Act”), or other federal or state law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations: (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation or alleged
violation by any other party hereto, of the Securities Act, the Exchange Act, any state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any state
securities law.
2. Registration Rights. As of the Closing Date and until such time as Sellers sell,
transfer or assign all Registrable Securities, Sellers shall be granted such Piggyback Registration
Rights and Separate Registration Rights as defined below:
2.1. Piggyback Registration Rights.
(a) Effect. If during the first 365 days following the Closing Date the Issuer
proposes to register any of its stock pursuant to Section 5 of the Securities Act (including any
stock of the Issuer owned by any other shareholder of the Issuer) or other securities under the
Securities Act in connection with the public offering of such securities (the “Registration
Transaction”), then each Seller shall have a one-time Piggyback Registration Right to have the
Issuer include all or any of Sellers’ Registrable Securities in such registration so commenced.
(b) Notice of Registration Transaction. As soon as practicable, but in no event later
than twenty (20) Business Days prior to the commencement of a Registration Transaction, the Issuer
shall give to the Sellers a prompt written notice informing the Sellers of the proposed
Registration Transaction so as to enable the Sellers to exercise their Piggyback Registration
Rights (the “Notice of Registration Transaction”). The Notice of Registration Transaction shall
state the deadline to respond to thereto and whether the proposed Registration Transaction involves
an underwriting. The Sellers shall have 20 Business Days to submit to the Issuer a written request
for registration, which request shall set forth (1) the number of Sellers’ Registrable Securities
to be included in the Registration Transaction and (2) such other information as the Issuer may
reasonably request (the “Request for Registration”).
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(c) Failure of Notice of Registration Transaction or of the Registration Transaction.
If the Issuer fails to give such timely Notice of Registration Transaction, or if for any other
reason Sellers’ Registrable Securities are not registered as a result of the Registration
Transaction, Sellers’ Separate Registration Rights shall vest and become exercisable immediately
upon (i) commencement of the Registration Transaction without proper Notice thereof as set forth in
Subsection 2.1(a), or (ii) notification by the SEC that Registrable Securities failed to be
registered pursuant to the Registration Transaction and such failure has not been, or is impossible
to be, cured within sixty (60) days.
(d) Underwritten Offerings. In the event the Registration Transaction is for an
underwritten offering, the right of any Seller to be included in a registration pursuant to this
Section 2.1 shall be conditioned upon such Seller’s participation in such underwriting and the
inclusion of such Seller’s Registrable Securities in the underwriting to the extent provided
herein. Notwithstanding any other provision of this Agreement, if the underwriter determines in
good faith that marketing factors require a limitation of the number of shares to be underwritten,
the number of shares that may be included in the underwriting shall be allocated, first, to the
Issuer; second, to the Sellers on a pro rata basis based on the total number of Registrable
Securities held by the Sellers; and third, to any stockholder of the Issuer (other than a Seller)
on a pro rata basis based on the total number of shares of common stock owned by those stockholders
who are not Sellers desiring to participate in the offering. If any Seller disapproves of such
underwriting, such Seller may elect to withdraw therefrom by written notice to the Issuer and the
underwriter, delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from such underwriting
shall be excluded and withdrawn from that registration. In any event, Sellers shall maintain their
Registration Rights under this Agreement with respect to Registrable Securities not included in
such underwritten offering.
2.2. Separate Registration Rights.
(a) Effect. If the Issuer does not commence a Registration Transaction during the
first 365 days following the Closing Date, or in case of failure of Notice of Registration
Transaction or of the Registration Transaction as provided in Subsection 2.1(b) above, each Seller
shall have a one-time Separate Registration Right to have the Issuer register Sellers’ Registrable
Securities upon Seller’s request at any time thereafter.
(b) Invocation of Separate Registration Rights. If the Issuer receives at any time
after Seller’s Separate Registration Rights vest pursuant to this Section 2.2(a) and prior to the
termination of this Agreement a written Request for Registration from Sellers that the Issuer file
a registration statement under the Securities Act with respect to Sellers’ Registrable Securities,
then the Issuer shall:
(i) as soon as practicable, and in any event within sixty (60) days of the receipt of
such request, file a registration statement under the Securities Act covering all Registrable
Securities which a Seller requests to be registered pursuant to such written request;
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(ii) use its best efforts to cause such registration statement to be declared effective
by the SEC as soon as practicable but in no event later than ninety (90) days after such
request; and
(iii) otherwise comply with the obligations of the Issuer under Subsection 2.3 hereof.
(c) Deferral. Notwithstanding the foregoing, if, at the time a Seller makes a Request
for Registration pursuant to this Section 2.2, the Board of Directors of the Issuer (i) resolves
that, in the good faith judgment of the Board, it would be materially detrimental to the Issuer and
its shareholders for such registration statement to be filed and it is therefore essential to defer
the filing of such registration statement, and (ii) furnishes to such requesting Seller a
certificate signed by the chief executive officer of the Issuer to this effect, the Issuer shall
then have the right to defer taking action with respect to such filing for a period of not more
than ninety (90) days after receipt of the request of the Sellers; provided, however, that the
Issuer may not utilize this deferral right more than once in any twelve (12)-month period.
2.3. Obligations of the Issuer. Whenever required pursuant to Subsection 2.1 or
Subsection 2.2 to effect the registration of any Registrable Securities, the Issuer shall, as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to become effective, and
keep such registration statement effective for a period of up to one hundred twenty (120) days or,
if earlier, until the distribution contemplated in the registration statement has been completed;
provided, however, that such 120-day period shall be extended for a period of time equal to
the period any Seller refrains from selling any securities included in such registration at the
request of an underwriter of Registrable Securities of the Issuer;
(b) prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement;
(c) furnish to the Sellers such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the disposition of Registrable Securities owned
by them;
(d) use its best efforts to register and qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such other United States jurisdictions as
shall be reasonably requested by the Sellers;
(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;
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(f) cause all such Registrable Securities registered pursuant to this Agreement to be listed
on each securities exchange and trading system or quotation service, as the case may be, on which
similar securities issued by the Issuer 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;
(h) use its best efforts to furnish, at the request of the Sellers requesting registration of
Registrable Securities pursuant to this Section 2, on the date on which such Registrable Securities
are sold to the underwriter:
(i) an opinion, dated such date, of the counsel representing the Issuer 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 Issuer, 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.
(i) notify the Sellers with respect to any Registrable Securities covered by a registration
statement obtained pursuant to exercise by the Sellers of the Registration Rights:
(i) when such registration statement, or any post-effective amendment thereto, shall have
become effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(ii) of the receipt of any comments from the SEC;
(iii) of the issuance by the SEC or any other federal or state governmental authority of
any stop order suspending the effectiveness of such registration statement or the initiation
of proceedings for that purpose; and
(iv) at any time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus included 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 the light of the circumstances then existing, such
obligation to continue for one hundred eighty (180) days or such lesser period until all such
Registrable Securities are sold.
2.4 Obligations of the Sellers. Each Seller shall be subject to the following
conditions:
(a) Such Seller shall be required to furnish in writing to the Issuer all information within
such Seller’s possession or knowledge required by the applicable rules and regulations of
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the SEC and by any applicable state securities or Blue Sky laws concerning such Seller
(including a shareholder questionnaire) and the proposed method of sale or other disposition of the
Registrable Securities of such Seller and the identity of and compensation to be paid to any
proposed underwriter(s) to be employed in connection therewith;
(b) If such Seller desires to sell and distribute such Seller’s Registrable Securities over a
period of time, or from time to time, at then prevailing market prices, pursuant to such
registration statement, then such Seller shall execute and deliver to the Issuer such written
undertakings as the Issuer and its counsel may reasonably require in order to assure full
compliance with relevant provisions of the Securities Act and the Exchange Act;
(c) If during the effectiveness of such registration statement, an intervening event should
occur which, in the reasonable opinion of the Issuer’s counsel, makes the prospectus included in
such registration statement no longer comply with the Securities Act, after notice containing the
facts and legal conclusions relied upon from the Issuer to such Seller of the occurrence of such an
event, such Seller shall make no further sales or other dispositions, or offers therefor, of such
Registrable Securities under such registration statement until such Seller receives from the Issuer
copies of a new, amended or supplemented prospectus complying with the Securities Act as soon as
practicable after such notice. The Issuer shall keep such Seller fully informed as to the status
of the Issuer’s efforts, which shall be prompt and diligent to cause such new, amended or
supplemented prospectus to be available for use by such Seller;
(d) To the extent required by the applicable rules and regulations of the SEC and by any
applicable state securities or Blue Sky laws, each Seller shall deliver a prospectus to the
purchaser of such Registrable Securities; and
(e) Such Seller promptly notify the Issuer in the event that any information supplied by such
Seller for inclusion in such registration statement or related prospectus is untrue or omits to
state a material fact required to be stated therein or necessary to make such information not
misleading in light of the circumstances then existing; immediately discontinue any sale or other
disposition of such Registrable Securities pursuant to such registration statement until the filing
of an amendment or supplement to such prospectus as may be necessary so that such prospectus does
not contain an untrue statement of material fact or omit 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 use reasonable best efforts to assist the Issuer as may be
appropriate to make such amendment or supplement effective for such purpose.
2.5. Expenses of Registration. The Issuer shall pay all expenses in connection with
any registration obligation provided herein, including, without limitation, all registration,
filing, stock exchange fees, printing expenses, all fees and expenses of complying with securities
or blue sky laws, and the fees and disbursements of counsel for the Issuer and of its independent
accountants; provided that, in any underwritten registration, each party shall pay for its own
underwriting discounts and commissions and transfer taxes.
2.6. Counting of Exercise of Registration Rights. Notwithstanding any other provision
of this Agreement, Sellers’ one-time Registration Rights under this Agreement shall
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not be deemed to have been exercised until such time as the registration statement filed
pursuant to a Registration Transaction that includes Seller’s Registrable Securities has been
declared effective by the SEC.
2.7. Assignment of Registration Rights. The Registration Rights under this
Agreement may be assigned by Sellers to a transferee or assignee (“Person”) of any of
Seller’s Registrable Securities, provided that:
(a) such Person is an Affiliate of the Seller;
(b) the Issuer is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such Person and Registrable Securities with respect to which such
Registration Rights are being assigned; and
(c) such Person agrees in writing to be bound by and subject to the terms and conditions of
this Agreement.
2.8. Termination. Rights granted pursuant to this Agreement shall terminate with
respect to such Seller at such time as a Seller may each separately sell any Registrable Securities
held by each such Seller freely, without registration and without restrictions regarding the
quantity or manner of sale by each such Seller.
2.9. Indemnification. In the event any Registrable Securities are included in a
registration statement pursuant to this Section 2:
(a) To the extent permitted by law, the Issuer will indemnify and hold harmless the Sellers,
the partners, members, officers, directors and shareholders of the Sellers, legal counsel and
accountants for the Seller, any underwriter (as defined in the Securities Act) for the Sellers and
each person, if any, who controls the Sellers or underwriter within the meaning of the Securities
Act or the Exchange Act, against any Violation by the Issuer, and the Issuer will pay to the
Sellers, underwriter, controlling person or other aforementioned person, any legal or other
expenses reasonably incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action as such expenses are incurred.
(b) To the extent permitted by law, the Sellers will severally and not jointly indemnify and
hold harmless the Issuer, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Issuer within the meaning of the
Securities Act, legal counsel and accountants for the Issuer, any underwriter, and any controlling
person of any such underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation by the Sellers, in
each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by any Seller expressly for use in connection with
such registration statement; and each Seller will pay, any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this Subsection in connection with
investigating or defending any such loss, claim, damage, liability, or action; provided, however,
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(i) that the indemnity agreement contained in this Subsection shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Sellers, which consent shall not be unreasonably withheld; and
(ii) that, in no event shall any indemnity under this Subsection exceed the net proceeds
received by the Sellers from the offer and sale by them of their Registrable Securities.
(c) Promptly after receipt by an indemnified party under this Subsection 2.8 of notice of the
commencement of any action (including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this Subsection 2.8,
deliver to the indemnifying party a written notice of the commencement thereof and the indemnifying
party shall have the right to participate in and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties to such action; provided, however, that an indemnified
party (together with all other indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such counsel in such proceeding.
The failure to deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this Subsection 2.8, but
the omission so to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this Subsection 2.8.
(d) The obligations of the Issuer and Sellers under this Subsection 2.8 shall survive the
completion of any offering of Registrable Securities in a registration statement under this Section
2, and otherwise and shall survive the termination of this Agreement.
3. Miscellaneous.
3.1. 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. Nothing in this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as expressly provided in
this Agreement.
3.2. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to the conflicts of laws principles of
that or any other jurisdiction.
3.3. Consent to Jurisdiction, Service and Venue. For the purpose of any suit, action
or proceeding arising out of or relating to this Agreement, the Issuer and the Sellers irrevocably
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consent and submit to the jurisdiction and venue of any state or federal court of competent
jurisdiction sitting within the State of California. The Issuer and the Sellers irrevocably waive
any objection which they may now or hereafter have to the venue of any such suit, action or
proceeding brought in such court and any claim that such suit, action or proceeding brought in such
court has been brought in an inconvenient forum and agree that the service of process in accordance
with this Section will be deemed in every respect effective and valid personal service of process
upon each the Issuer and the Sellers. Nothing in this Agreement will be construed to prohibit
service of process by any other method permitted by law. The provisions of this Section will not
limit or otherwise affect the right of any party to institute and conduct an action in any other
appropriate manner, jurisdiction or court. The Issuer and the Sellers agree that final judgment in
such suit, action or proceeding will be conclusive and may be enforced in any other jurisdiction by
suit on the judgment or in any other manner provided by law.
3.4. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may also be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3.5. 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.
3.6. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt.
3.7. Amendments and Waivers.
(a) 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 Issuer and both Sellers.
(b) Any amendment, termination or waiver effected in accordance with this Section shall be
binding on all parties hereto. 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.
3.8. Severability. The invalidity or unenforceability of any provision hereof shall
in no way affect the validity or enforceability of any other provision.
3.9. Aggregation of Stock. All shares of Registrable Securities held or acquired by
Affiliates pursuant to Subsection 2.6 shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
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3.10. Entire Agreement. This Agreement 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.
3.11. Delays or Omissions. No delay or omission to exercise any right, power or
remedy accruing to any party under this Agreement, upon any breach or default of any other party
under this Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party of any provisions or conditions of this Agreement, must be in writing and
shall be effective only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not
alternative.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| “Seller” | ||||||
| JRT PRODUCTIONS, INC. | ||||||
| By: | ||||||
| Title: President | ||||||
| “Seller” | ||||||
| RED CAT PRODUCTIONS, INC. | ||||||
| By: | ||||||
| Title: President | ||||||
| “Issuer” | ||||||
| IMARX THERAPEUTICS, INC. | ||||||
| By: | ||||||
| Title: | ||||||
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