REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into
as of the 30th day of March 2007, by and among SRKP 6, Inc., a Delaware
corporation (the "COMPANY"), Vicor Technologies, Inc., a Delaware corporation
("VICOR"), and the holders of the Company's common stock listed on Exhibit A who
are signatories hereof (each an "SRKP COMMON STOCKHOLDER" and collectively the
"SRKP COMMON STOCKHOLDERS").
RECITALS
--------
A. Vicor is a party to a certain Agreement and Plan of Merger dated as
of July 28, 2006 (the "MERGER AGREEMENT"), pursuant to which upon the Closing
Date (as defined below), Vicor will become a wholly-owned subsidiary of the
Company and the existing Vicor stockholders will obtain majority ownership and
control of the Company (the "MERGER"). All capitalized terms used but not
defined herein have the meanings ascribed to them in the Merger Agreement.
B. As an inducement to the SRKP Common Stockholders' approval of the
Merger, the Company desires to grant to the SRKP Common Stockholders certain
registration rights with respect to the shares of Common Stock held by such SRKP
Common Stockholders as of the effective date of the Merger.
C. The consummation of the Merger and the other transactions
contemplated by the Merger Agreement are conditioned on the execution and
delivery of this Agreement, and the parties hereto desire to sign and deliver
this Agreement pursuant to their respective rights under the foregoing described
arrangements and agreements, and in connection with the Merger and the
transactions contemplated by the Merger Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
1.1 The "Closing Date" shall mean the first business day after
satisfaction of the conditions set forth in Section 7 of the Merger Agreement or
as soon as practicable thereafter following satisfaction or waiver of the
conditions set forth in Section 7 of the Merger Agreement.
2
1.2 The term "Common Stock" means the common stock of the Company,
par value $0.0001 per share.
1.3 The term "Holder" means each SRKP Common Stockholder or any of
such parties' respective successors and permitted assigns who acquire in
accordance with this Agreement Registrable Securities directly or indirectly
from a SRKP Common Stockholder, including from any permitted assignee as set
forth in Section 3.
1.4 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 applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
1.5 The term "Registration Filing Date" means April 15, 2007.
1.6 The term "Registrable Securities" means (i) any shares of Common
Stock held by the SRKP Common Stockholders as of the effective date of the
Merger, or (ii) any shares of Common Stock issuable with respect to the
securities referred to in clause (i) above by virtue of any stock split,
combination, stock dividend, merger, consolidation or other similar event or by
virtue of other anti-dilution protection; provided, however, that shares of
Common Stock that are considered to be Registrable Securities shall cease to be
Registrable Securities (A) upon the sale thereof pursuant to an effective
registration statement, (B) upon the sale thereof pursuant to Rule 144 (or
successor rule) under the Securities Act, or (C) when such securities cease to
be outstanding.
1.7 The term "Registration Statement" means a Form SB-2 or other
appropriate registration document under the Securities Act.
1.8 The term "SEC" means the United States Securities and Exchange
Commission.
1.9 The term "Securities Act" means the Securities Act of 1933, as
amended.
2. REGISTRATION RIGHTS
2.1 Registration Requirement. The Company shall file a registration
statement on Form SB-2 or other appropriate registration document under the
Securities Act (the "REGISTRATION STATEMENT") for resale of the Registrable
Securities and shall use its reasonable best efforts to maintain the
Registration Statement effective for a period of twenty-four (24) months at the
Company's expense (the "EFFECTIVENESS PERIOD"). The Company and Vicor shall use
their reasonable best efforts to (a) file such Registration Statement (or cause
such Registration Statement to be filed) no later than the Registration Filing
Date, and (b) to cause such Registration Statement to become effective within
one hundred twenty (120) days after the Registration Filing Date (the "REQUIRED
EFFECTIVENESS DATE"). Notwithstanding anything else to the contrary, if (y) the
Registration Statement is not filed by the Registration Filing Date, or (z) the
Registration Statement is not declared effective by the SEC on or before the
Required Effectiveness Date due to the failure of the Company to fulfill its
obligations under this Agreement, the Company shall be required to issue, as
liquidated damages, to the SRKP
3
Common Stockholders shares of SRKP Common Stock equal to a total of 0.0333% of
the shares of SRKP Common Stock covered by the Registration Statement for each
day that the Registration Statement has not been filed or declared effective by
the SEC, as applicable. This requirement to issue shares of SRKP Common Stock
shall remain in effect until the Registration Statement is filed or is declared
effective by the SEC, as applicable. Any shares issued to the SRKP Common
Stockholders under this provision shall be allocated to each SRKP Common
Stockholder based on the percentages of ownership listed on Exhibit A to this
Agreement.
2.2 Limitation to Registration Requirement. Notwithstanding any
other provisions of this Agreement, the Company shall not be obligated to effect
any registration of the Registrable Securities or take any other action pursuant
to this Section 2 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act.
2.3 Expenses of Registration. Except as otherwise expressly set
forth, the Company shall bear all expenses incurred by the Company in compliance
with the registration obligation of the Company, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company incurred in connection with any registration,
qualification or compliance pursuant to this Agreement and all underwriting
discounts, selling commissions and expense allowances applicable to the sale of
any securities by the Company for its own account in any registration. All
underwriting discounts, selling commissions and expense allowances applicable to
the sale by any SRKP Common Stockholder of Registrable Securities and all fees
and disbursements of counsel for the SRKP Selling Stockholder shall be borne by
the SRKP Common Stockholder.
2.4 Indemnification.
(a) To the extent permitted by law the Company will indemnify each
SRKP Common Stockholder, each of its officers, directors, agents, employees and
partners, and each person controlling such SRKP Common Stockholder, with respect
to each registration, qualification or compliance effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter, and their respective counsel against all claims, losses, damages
and liabilities (or actions, proceedings or settlements in respect thereof)
arising out of or based on (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document prepared by the Company (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or (ii) 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, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and subject to the
provisions of Section 2.4(c) below, will reimburse each such SRKP Common
Stockholder, each of its officers, directors, agents, employees and partners,
and each person controlling such SRKP Common Stockholder, each such underwriter
and each person who controls any such underwriter, for any legal and any other
expenses as they are reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that
4
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 alleged untrue statement) or omission (or alleged
omissions) based upon written information furnished to the Company by (or on
behalf of) such SRKP Common Stockholder or underwriter, or if the person
asserting any such loss, claim, damage or liability (or action or proceeding in
respect thereof) did not receive a copy of an amended preliminary prospectus or
the final prospectus (or the final prospectus as amended and supplemented) at or
before the written confirmation of the sale of such Registrable Securities to
such person because of the failure of the SRKP Common Stockholder or underwriter
to so provide such amended preliminary or final prospectus (or the final
prospectus as amended and supplemented); provided, however, 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 Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by the SRKP Common Stockholder, any such partner,
officer, director, employee, agent or controlling person of such SRKP Common
Stockholder, or any such underwriter or any person who controls any such
underwriter; provided, however, that the obligations of the Company hereunder
shall be limited to an amount equal to the portion of net proceeds represented
by the Registrable Securities pursuant to this Agreement.
(b) To the extent permitted by law, each SRKP Common Stockholder
whose Registrable Securities are included in any registration, qualification or
compliance effected pursuant to this Agreement will indemnify the Company, and
its directors, officers, agents, employees and 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 the Securities
Act and the rules and regulations thereunder, each other such SRKP Common
Stockholder and each of their officers, directors, partners, agents and
employees, and each person controlling such SRKP Common Stockholder, and their
respective counsel 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 and such SRKP Common Stockholders, directors, officers, partners,
persons, underwriters or control persons for any legal or any other expenses as
they are reasonably incurred 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 such SRKP Common
Stockholder; provided, however, that the obligations of any SRKP Common
Stockholder hereunder shall be limited to an amount equal to the net proceeds to
such SRKP Common Stockholder from Registrable Securities sold under such
registration statement, prospectus, offering circular or other document as
contemplated herein; provided, further, 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
5
without the consent of the SRKP Common Stockholder, which consent shall not be
unreasonably withheld or delayed.
(c) Each party entitled to indemnification under this Section (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 any litigation resulting
therefrom, 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 if any Indemnified
Party reasonably concludes that there may be one or more legal defenses
available to it that are not available to the Indemnifying Party, or that such
claim or litigation involves or could have an effect on matters beyond the scope
of this Agreement, then the Indemnified Party may retain its own counsel at the
expense of the Indemnifying Party; 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 and only to
the extent that such failure to give notice results in material prejudice to the
Indemnifying Party. 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. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
2.5 Transfer or Assignment of Registration Rights. The Registrable
Securities, and any related benefits to the SRKP Common Stockholder hereunder
may be transferred or assigned by the SRKP Common Stockholder to a permitted
transferee or assignee, provided that the Company is given written notice of
such transfer or assignment, stating the name and address of said transferee or
assignee and identifying the Registrable Securities with respect to which
6
such registration rights are being transferred or assigned; provided further
that the transferee or assignee of such Registrable Securities shall be deemed
to have assumed the obligations of the SRKP Common Stockholder under this
Agreement by the acceptance of such assignment and shall, upon request from the
Company, evidence such assumption by delivery to the Company of a written
agreement assuming such obligations of the SRKP Common Stockholder.
2.6 Registration Procedures. In the case of the registration
effected by the Company pursuant to this Agreement, the Company will keep the
SRKP Common Stockholder advised in writing as to the initiation of each
registration and as to the completion thereof. The Company will:
(a) 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 securities covered by such
registration statement;
(b) Respond as promptly as reasonably practicable to any comments
received from the SEC with respect to a registration statement or any amendment
thereto.
(c) Notify the SRKP Common Stockholder as promptly as reasonably
practicable and (if requested by any such person) confirm such notice in writing
no later than one trading day following the day (A) when a prospectus or any
prospectus supplement or post-effective amendment to a registration statement is
proposed to be filed and (B) with respect to a registration statement or any
post-effective amendment, when the same has become effective;
(d) Furnish such number of prospectuses and other documents incident
thereto, including supplements and amendments, as the SRKP Common Stockholder
may reasonably request;
(e) Furnish to the SRKP Common Stockholder, upon request, a copy of
all documents filed with and all correspondence from or to the SEC in connection
with any such registration statement other than non-substantive cover letters
and the like;
(f) Use its reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the effectiveness of a
registration statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment; and
(g) Use its reasonable best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission.
2.7 Statement of Beneficial Ownership. The Company may require the
SRKP Common Stockholder to furnish to the Company a certified statement as to
the number of shares of Common Stock beneficially owned by such SRKP Common
Stockholder and the controlling person thereof and any other such information
regarding the SRKP Common Stockholder, the Registrable Securities held by the
SRKP Common Stockholder and the intended method of disposition of such
securities as shall be reasonably required with respect to the registration of
the SRKP Common Stockholder's Registrable Securities. Each SRKP Common
Stockholder
7
hereby understands and agrees that the Company may, in its sole discretion,
exclude that SRKP Common Stockholder's Registrable Securities from the
Registration Statement in the event that the SRKP Common Stockholder fails to
provide such information requested by the Company within the time period
reasonably specified by the Company or is required to do so by law or the SEC.
2.8 Compliance. SRKP Common Stockholder covenants and agrees that
such SRKP Common Stockholder will comply with the prospectus delivery
requirements of the Securities Act as applicable to such SRKP Common Stockholder
in connection with sales of Registrable Securities pursuant to the registration
statement required hereunder.
3. MISCELLANEOUS
3.1 Successors and Assigns. Except as otherwise expressly provided
herein, the rights of the Holders hereunder may not be assigned without the
consent of the Company. Any reference in this Agreement to a Holder shall be
deemed a reference to such transferee, and any reference to the "Holders" shall
be deemed to include such transferee. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted 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 permitted successors and assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement.
3.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. Any actions or proceedings
that arise out of or in connection with this Agreement shall be brought in the
applicable state or Federal court located in Palm Beach County, Florida, and
each party hereto hereby waives any objection to such selection of venue,
including, without limitation, an objection based on the assertion that such
venue constitutes an inconvenient forum.
3.3 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.
3.4 Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be delivered in person or mailed by certified or
registered mail, return receipt requested, directed to (i) the Company or Vicor
at the addresses set forth below the applicable signature hereof or (ii) to a
Holder at the address therefor as set forth in the Company's records or, in any
such case, at such other address or addresses as shall have been furnished in
writing by such party to the others. The giving of any notice required hereunder
may be waived in writing by the parties hereto. Every notice or other
communication hereunder shall be deemed to have been duly given or served on the
date on which personally delivered, or on the date actually received, if sent by
mail or telex, with receipt acknowledged.
3.5 Amendments and Waivers. Any provision of this Agreement may be
amended and the observance of any provision of this Agreement may be waived or
amended (either generally or in a particular instance and either retroactively
or prospectively), only with
8
the written consent of the Company, Vicor and the Holders of at least a majority
of the Registrable Securities then issued and outstanding. Any amendment or
waiver effected in accordance with this Section 3.5 shall be binding upon each
Holder of any securities subject to this Agreement at the time outstanding
(including securities into which such securities are convertible), each future
Holder and all such securities, and the Company.
3.6 Further Assurances. Each Holder and the Company shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement and the other
documents contemplated hereby and consummate and make effective the transactions
contemplated hereby.
3.7 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provisions were so excluded and shall be enforceable in accordance with its
terms.
3.8 Entire Agreement. All prior agreements of the parties concerning
the subject matter of this Agreement are expressly superseded by this Agreement.
This Agreement contains the entire Agreement of the parties concerning the
subject matter hereof. Any oral representations or modifications of this
Agreement shall be of no effect.
[Signature Page Follows]
9
IN WITNESS WHEREOF, the parties hereto have caused this REGISTRATION
RIGHTS AGREEMENT to be duly executed as of the date first above written.
SRKP 6 INC., A DELAWARE CORPORATION
By:
------------------------------------------------
Name:
------------------------------------------------
Title:
------------------------------------------------
VICOR TECHNOLOGIES, INC., A DELAWARE CORPORATION
By:
------------------------------------------------
Name:
------------------------------------------------
Title:
------------------------------------------------
[Holders' Signature Pages Follow]
HOLDERS' SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT
IF AN INDIVIDUAL:
(Signature)
(Type or print name as it should appear on certificate)
IF A CORPORATION, GENERAL/LIMITED PARTNERSHIP, LLC, TRUST OR OTHER ENTITY:
(Type or print name as it should appear on certificate)
By:
---------------------------------------------------------
Name
Title:
ADDRESS:
--------------------------------------------------
--------------------------------------------------
TELEPHONE: ( )
--------- ---------------------------------------
FACSIMILE: ( )
--------- ---------------------------------------
EXHIBIT A
SRKP COMMON STOCKHOLDERS
Xxxxxx Xxxxxxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxxx
