REGISTRATION AGREEMENT
EXHIBIT
10.2
This
Registration Agreement (this “Agreement”) is made and entered into effective as
of May 10, 2006, by and between Equitex, Inc. (the “Company”) and persons or
entities listed on the signature page hereof (“SHAREHOLDER”).
This
Agreement is made in connection with certain provisions a Settlement Agreement
dated as of May 10, 2006, between the Company and SHAREHOLDER.
The
Company and SHAREHOLDER hereby agree as follows:
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
shares of the Company’s common stock, par value $0.01 per share.
“Effectiveness
Date”
means
with respect to the initial Registration Statement required to be filed
hereunder, a date forty five (45) days following the date hereof.
“Effectiveness
Period”
has the
meaning set forth in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Holder”
or
“Holders”
means
SHAREHOLDER or any of its affiliates or transferees to the extent any of them
hold Registrable Securities, other then those purchasing Registrable Securities
in a market transaction.
“Indemnified
Party”
has the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has the
meaning set forth in Section 5(c).
“Proceeding”
means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities
covered
by such Registration Statement, and all other amendments and supplements to
the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the shares of Common Stock issued upon the execution of the Settlement
Agreement.
“Registration
Statement”
means
each registration statement required to be filed hereunder, including the
Prospectus therein, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Settlement
Agreement”
has the
meaning given to such term in the Preamble hereto.
“Trading
Market”
means
any of the NASD OTC Bulletin Board, NASDAQ SmallCap Market, the Nasdaq National
Market, the American Stock Exchange or the New York Stock Exchange
“Warrants”
means
the Common Stock purchase warrants issued pursuant to the Loan Agreement,
evidenced by the Warrant dated as of October 7, 2003.
2. Registration.
(a) On
or
prior to May 15, 2006, the Company shall prepare and file with the Commission
a
Registration Statement covering the Registrable Securities for a selling
stockholder resale offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement shall be on Form S-3 (except if the Company
is
not then eligible to register for resale the Registrable Securities on Form
S-3,
in which case such registration shall be on another appropriate form in
accordance herewith). The Company shall cause the Registration Statement to
become and remain effective as provided herein. The Company shall use its best
efforts to cause the Registration Statement to be declared effective under
the
Securities Act as promptly as possible after the filing thereof, but in any
event no later than the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep each Registration Statement continuously effective
under the Securities Act until the date which is the earlier date of when
(i)
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all
Registrable Securities covered by such Registration Statement have been sold
or
(ii) all Registrable Securities covered by such Registration Statement may
be
sold immediately without registration under the Securities Act and without
volume restrictions pursuant to Rule 144(k), as determined by the counsel to
the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company’s transfer agent and the affected Holders (each, an
“Effectiveness Period”).
If:
(i)
the Registration Statement is not filed on or before May 15, 2006; (ii) the
Registration Statement filed hereunder is not declared effective by the
Commission by the applicable Effectiveness Date; (iii) after a Registration
Statement is filed with and declared effective by the Commission, a
Discontinuation Event (as hereafter defined) shall occur and be continuing,
or
such Registration Statement ceases to be effective (by suspension or otherwise)
as to all Registrable Securities to which it is required to relate at any time
prior to the expiration of the Effectiveness Period applicable to such
Registration Statement (without being succeeded immediately by an additional
Registration Statement filed and declared effective), for a period of time
which
shall exceed 30 days in the aggregate per year or more than 20 consecutive
calendar days (defined as a period of 365 days commencing on the date such
Registration Statement is declared effective); or (iv) the Common Stock is
not
listed or quoted, or is suspended from trading on any Trading Market for a
period of three (3) consecutive Trading Days (provided the Company shall not
have been able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on another Trading Market); (any such failure
or breach being referred to as an “Event,” and for purposes of clause (i) or
(ii) the date on which such Event occurs, or for purposes of clause (iii) the
date which such 30 day or 20 consecutive day period (as the case may be) is
exceeded, or for purposes of clause (iv) the date on which such three (3)
Trading Day period is exceeded, being referred to as “Event Date”), then as
partial relief for the damages to SHAREHOLDER by reason of the occurrence of
any
such Event (which remedy shall not be exclusive of any other remedies available
at law or in equity), the Company shall pay to SHAREHOLDER, as liquidated
damages and not as a penalty, for each day that an Event has occurred and is
continuing, an amount in cash equal to one-thirtieth (1/30th)
of the
product of (A) the original principal amount converted into Registrable
Securities under the Settlement Agreement multiplied by (B) the Applicable
Percentage (as hereafter defined). For purposes hereof, the term “Applicable
Percentage” means (i) for the first thirty (30) day period following the
occurrence and during the continuance of such Event, two percent (2%), (ii)
for
the second thirty (30) day period following the occurrence and during the
continuance of such Event, three percent (3%) and (iii) thereafter, four percent
(4%). In the event the Company fails to make any payments pursuant to this
Section 2(b) in a timely manner, such payments shall bear interest at the rate
of 1.5% per month (prorated for partial months) until paid in full.
(b) Within
three business days of the Effectiveness Date, the Company shall cause its
counsel to issue a blanket opinion substantially in the form attached hereto
as
Exhibit A, to the transfer agent stating that the shares are subject to an
effective registration statement and can be reissued free of restrictive legend
upon notice of a sale by SHAREHOLDER and confirmation by SHAREHOLDER that it
has
complied with the prospectus delivery requirements, provided that the Company
has not advised the transfer agent orally or in writing that the opinion has
been withdrawn. Copies of the blanket opinion required by this Section 2(b)
shall be delivered to SHAREHOLDER within the time frame set forth above.
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3. Registration
Procedures.
If and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, expeditiously:
(a) prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received
from the Commission, and use its best efforts to cause such Registration
Statement to become and remain effective for the Effectiveness Period with
respect thereto, and promptly provide to SHAREHOLDER copies of all filings
and
Commission letters of comment relating thereto;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may
be
necessary to comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities covered by such Registration
Statement and to keep such Registration Statement effective until the expiration
of the Effectiveness Period applicable to such Registration
Statement;
(c) furnish
to SHAREHOLDER such number of copies of the Registration Statement and the
Prospectus included therein (including each preliminary Prospectus) as
SHAREHOLDER reasonably may request to facilitate the public sale or disposition
of the Registrable Securities covered by such Registration
Statement;
(d) to
the
extent legally required use its commercially reasonable efforts to register
or
qualify SHAREHOLDER’s Registrable Securities covered by such Registration
Statement under the securities or “blue sky” laws of such jurisdictions within
the United States as SHAREHOLDER may reasonably request, provided, however,
that
the Company shall not for any such purpose be required to qualify generally
to
transact business as a foreign corporation in any jurisdiction where it is
not
so qualified or to consent to general service of process in any such
jurisdiction;
(e) list
the
Registrable Securities covered by such Registration Statement with any
securities exchange on which the Common Stock of the Company is then listed;
(f) notify
SHAREHOLDER at any time when a Prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event of which
the
Company has knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and
(g) make
available for inspection by SHAREHOLDER and any attorney, accountant or other
agent retained by SHAREHOLDER, all publicly available, non-confidential
financial and other records, pertinent corporate documents and properties of
the
Company, and cause the Company’s officers, directors and employees to supply all
publicly available, non-confidential information reasonably requested by the
attorney, accountant or agent of SHAREHOLDER.
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4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including reasonable counsel fees) incurred
in connection with complying with state securities or “blue sky” laws, fees of
the NASD, transfer taxes, fees of transfer agents and registrars, fees of,
and
disbursements incurred by, one counsel for SHAREHOLDERS (in an amount not to
exceed $7500) are called “Registration Expenses”. All selling commissions
applicable to the sale of Registrable Securities, including any fees and
disbursements of any special counsel to the Holders beyond those included in
Registration Expenses, are called “Selling Expenses.” The Company shall only be
responsible for all Registration Expenses.
5. Indemnification.
(a) In
the
event of a registration of any Registrable Securities under the Securities
Act
pursuant to this Agreement, the Company will indemnify and hold harmless each
Holder, and its officers, directors and each other person, if any, who controls
such Holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Holder, or
such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant to
this
Agreement, any preliminary Prospectus or final Prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and
will reimburse such Holder, and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by or on behalf of SHAREHOLDER or any
such
person in writing specifically for use in any such document.
(b) In
the
event of a registration of the Registrable Securities under the Securities
Act
pursuant to this Agreement, SHAREHOLDER will indemnify and hold harmless the
Company, and its officers, directors and each other person, if any, who controls
the Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact which was furnished in writing by SHAREHOLDER to the
Company expressly for use in (and such information is contained in) the
Registration Statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact
5
required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Company and each such person for any reasonable legal
or
other expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action, provided,
however,
that
SHAREHOLDER will be liable in any such case if and only to the extent that
any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished in writing to the Company by or on behalf
of SHAREHOLDER specifically for use in any such document. Notwithstanding the
provisions of this paragraph, SHAREHOLDER shall not be required to indemnify
any
person or entity in excess of the amount of the aggregate net proceeds received
by SHAREHOLDER in respect of Registrable Securities in connection with any
such
registration under the Securities Act.
(c) Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified Party”) of notice of the commencement of any action, such
Indemnified Party shall, if a claim for indemnification in respect thereof
is to
be made against a party hereto obligated to indemnify such Indemnified Party
(an
“Indemnifying Party”), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from any
liability which it may have to such Indemnified Party other than under this
Section 5(c) and shall only relieve it from any liability which it may have
to
such Indemnified Party under this Section 5(c) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any such action
shall
be brought against any Indemnified Party and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel satisfactory to such Indemnified Party, and, after
notice from the Indemnifying Party to such Indemnified Party of its election
so
to assume and undertake the defense thereof, the Indemnifying Party shall not
be
liable to such Indemnified Party under this Section 5(c) for any legal expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof; if the Indemnified Party retains its own counsel, then the Indemnified
Party shall pay all fees, costs and expenses of such counsel, provided,
however,
that,
if the defendants in any such action include both the Indemnified Party and
the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict with the interests
of the Indemnifying Party, the Indemnified Party shall have the right to select
one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other expenses related to such participation to
be
reimbursed by the Indemnifying Party as incurred.
(d) In
order
to provide for just and equitable contribution in the event of joint liability
under the Securities Act in any case in which either (i) SHAREHOLDER, or any
officer, director or controlling person of SHAREHOLDER, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by
the entry of a final judgment or decree by a court of competent jurisdiction
and
the expiration of time to appeal or the denial of the last right of appeal)
that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of SHAREHOLDER
or such officer, director or
6
controlling
person of SHAREHOLDER in circumstances for which indemnification is provided
under this Section 5; then, and in each such case, the Company and SHAREHOLDER
will, as appropriate, contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion to their relative fault, provided,
however,
that,
in any such case, (A) SHAREHOLDER will not be required to contribute any amount
in excess of the aggregate net proceeds received by SHAREHOLDER in respect
of
Registrable Securities in connection with any such registration under the
Securities Act; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(a) The
Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and, the Company has timely filed all proxy statements, reports, schedules,
forms, statements and other documents required to be filed by it under the
Exchange Act. The Company has filed its Annual Report on Form 10-K for the
fiscal year ended December 31, 2006 (the “SEC Report”). The SEC Report was, at
the time of its filing, in substantial compliance with the requirements of
its
respective form and none of the SEC Report, nor the financial statements (and
the notes thereto) included in the SEC Report, as of its filing date, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Report comply as to
form
in all material respects with applicable accounting requirements and the
published rules and regulations of the Commission or other applicable rules
and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles (“GAAP”) applied on
a consistent basis during the periods involved (except (i) as may be otherwise
indicated in such financial statements or the notes thereto or (ii) in the
case
of unaudited interim statements, to the extent they may not include footnotes
or
may be condensed) and fairly present in all material respects the financial
condition, the results of operations and the cash flows of the Company and
its
subsidiaries, on a consolidated basis, as of, and for, the periods presented
in
such SEC Report.
(b) The
Company shall (i) maintain its status as a reporting company under the 1934
Act,
(ii) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1934 Act, and (iii) furnish to each Holder
upon request (A) a written statement by the Company that it has complied with
the reporting requirements of the 1934 Act, (B) a copy of the Company's most
recent Annual Report on Form 10-KSB or Quarterly Report on Form 10-QSB, and
(C)
such other information as may be reasonably requested in order to avail such
Holder of any rule or regulation of the SEC and of any other securities
authority that permits the selling of restricted securities without
registration.
(c) The
Common Stock is listed for trading on the NASD OTC Bulletin Board and will
satisfy all requirements for the continuation of such listing, and the Company
shall do all things necessary for the continuation of such listing. The Company
has not received any
7
notice
that its Common Stock will be delisted from the NASD OTC Bulletin Board or
that
the Common Stock does not meet all requirements for the continuation of such
listing.
(d) Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances that would cause
the offering of the Securities pursuant to the Loan Agreement to be integrated
with prior offerings by the Company for purposes of the Securities Act which
would prevent the Company from selling the Common Stock pursuant to Rule 506
under the Securities Act, or any applicable exchange-related stockholder
approval provisions, nor will the Company or any of its affiliates or
subsidiaries take any action or steps that would cause the offering of the
Common Stock to be integrated with other offerings (other than such concurrent
offering to SHAREHOLDER).
(e) The
Company will not issue any stop transfer order or other order impeding the
sale
and delivery of any of the Registrable Securities at such time as such
Registrable Securities are registered for public sale or an exemption from
registration is available, except as required by federal or state securities
laws.
(f) The
Company understands the nature of the Registrable Securities issuable upon
execution of the Settlement Agreement and recognizes that the issuance of such
Registrable Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the Registrable
Securities is binding upon the Company and enforceable regardless of the
dilution such issuance may have on the ownership interests of other shareholders
of the Company.
(g) Except
for agreements made in the ordinary course of business, there is no agreement
that has not been filed with the Commission as an exhibit to a registration
statement or to a form required to be filed by the Company under the Exchange
Act, the breach of which could reasonably be expected to have a material and
adverse effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and perform
any of its obligations under this Agreement in any material
respect.
7. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their respective
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to any Registration Statement.
8
Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus may be resumed, and,
in
either case, has received copies of any additional or supplemental filings
that
are incorporated or deemed to be incorporated by reference in such Prospectus
or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this Section 7(d),
a
“Discontinuation Event” shall mean (i) when the Commission notifies the Company
that there will be a “review” of an effective Registration Statement (or
amendment thereto) and whenever the Commission comments in writing on such
filing (the Company shall provide true and complete copies thereof and all
written responses thereto to each of the Holders); (ii) any request by the
Commission or any other Federal or state governmental authority for amendments
or supplements to such Registration Statement or Prospectus or for additional
information; (iii) the issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement covering any or all of the
Registrable Securities or the initiation of any Proceedings for that purpose;
(iv) the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and/or (v) the occurrence of
any
event or passage of time that makes the financial statements included in such
Registration Statement ineligible for inclusion therein or any statement made
in
such Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that
requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or Prospectus,
as
the case may be, it will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(d) Piggy-Back
Registrations.
If at
any time during any Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities required to be covered
during such Effectiveness Period and the Company shall determine to prepare
and
file with the Commission a registration statement relating to an offering for
its own account or the account of others under the Securities Act of any of
its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans, then the Company shall send to each Holder written
notice of such determination and, if within fifteen (15) days after receipt
of
such notice, any such Holder shall so request in writing, the Company shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered, to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement, subject to customary underwriter cutbacks applicable to
all
holders of registration rights and subject to obtaining any required consent
of
any selling stockholder(s) to such inclusion under such registration
statement.
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(e) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of certain Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(f) Notices.
Any
notice or request hereunder may be given to the Company or SHAREHOLDER at the
respective addresses set forth below or as may hereafter be specified in a
notice designated as a change of address under this Section 7(g). Any notice
or
request hereunder shall be given by registered or certified mail, return receipt
requested, hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, “Courier”) or telecopy (confirmed by
mail). Notices and requests shall be, in the case of those by hand delivery,
deemed to have been given when delivered to any party to whom it is addressed,
in the case of those by mail or overnight mail, deemed to have been given three
(3) business days after the date when deposited in the mail or with the
overnight mail carrier, in the case of a Courier, the next business day
following timely delivery of the package with the Courier, and, in the case
of a
telecopy, when confirmed. The address for such notices and communications shall
be as set forth in the Loan Agreement or such other address as may be designated
in writing hereafter in accordance with this Section 7(g) by such
Person.
(g) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner.
(h) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(i) Governing
Law, Jurisdiction and Waiver of Jury Trial.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of California applicable to contracts made and performed
in
such State, without regard to principles of conflicts of law. The Company hereby
consents and agrees that the state or federal courts located in the County
of
California, State of California shall have exclusion jurisdiction to hear and
determine any Proceeding between the Company, on the one hand, and SHAREHOLDER,
on the other hand, pertaining to this Agreement or to any matter arising out
of
or related to this Agreement; provided,
that
SHAREHOLDER and the Company acknowledge
10
that
any
appeals from those courts may have to be heard by a court located outside of
the
County of California, State of California, and further provided,
that
nothing in this Agreement shall be deemed or operate to preclude SHAREHOLDER
from bringing a Proceeding in any other jurisdiction to collect the obligations,
to realize on the Collateral or any other security for the obligations, or
to
enforce a judgment or other court order in favor of SHAREHOLDER. The Company
expressly submits and consents in advance to such jurisdiction in any Proceeding
commenced in any such court, and the Company hereby waives any objection which
it may have based upon lack of personal jurisdiction, improper venue or
forum
non conveniens.
The
Company hereby waives personal service of the summons, complaint and other
process issued in any such Proceeding and agrees that service of such summons,
complaint and other process may be made by registered or certified mail
addressed to the Company at the address set forth in Section 7(g) and that
service so made shall be deemed completed upon the earlier of the Company’s
actual receipt thereof or three (3) days after deposit in the U.S. mails, proper
postage prepaid. The parties hereto desire that their disputes be resolved
by a
judge applying such applicable laws. Therefore, to achieve the best combination
of the benefits of the judicial system and of arbitration, the parties hereto
waive all rights to trial by jury in any Proceeding brought to resolve any
dispute, whether arising in contract, tort, or otherwise between SHAREHOLDER
and/or the Company arising out of, connected with, related or incidental to
the
relationship established between then in connection with this Agreement. If
either party hereto shall commence a Proceeding to enforce any provisions of
this Agreement, the Security Agreement or any other Ancillary Agreement, then
the prevailing party in such Proceeding shall be reimbursed by the other party
for its reasonable attorneys’ fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such Proceeding.
(j) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(k) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Balance
of page intentionally left blank; signature page follows]
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IN
WITNESS WHEREOF, the parties have executed this Registration Agreement as of
the
date first written above.
SHAREHOLDERS:
MBC
GLOBAL, LLC:
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By: /S/
XXX XXXX XXXXXX
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Its: COO
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CORPORATE
CAPITAL, INC.:
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By: /S/
XXXX XXXXXX
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Its: PRESIDENT
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XXXXXXX
COMPANIES:
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|
By: /S/
XXXXXXXX X. XXXXXXXXX
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Its: PRINCIPAL
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XXXXX
INVESTMENTS, INC.:
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By:
/S/
XXXX X. XXXXX
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Its:
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XXXX
X. XXXXX
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/S/
XXXX X. XXXXX
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XXXXX
XXXXX
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/S/
XXXXX XXXXX
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XXXXX
X. XXXXX JUNE 1992 NON-EXEMPT TRUST:
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By: /S/
XXXXX X. XXXXX
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Its
Trustee
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EUROPEAN
AMERICAN PERINVEST GROUP BERMUDA
|
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By: /S/
XXXXXXXX X. XXXXXXXXX
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Its: SHAREHOLDER
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XXXXX
XXXXXXX
|
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/S/
XXXXX XXXXXXX
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XXX
XXXX XXXXXX
|
|
/S/
XXX XXXX XXXXXX
|
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XXXXX
X. XXXXXX
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/S/
XXXXX X. XXXXXX
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XXXXXX
XXXXXXXX
|
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/S/
XXXXXX XXXXXXXX
|
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XXXX
XXXXXX
|
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/S/
XXXX XXXXXX
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XXXXXX
XXXXXX
|
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/S/
XXXXXX XXXXXX
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Equitex,
Inc.
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By:/S/
XXXXX XXXX
Name:Xxxxx
Xxxx
Title:President
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14