REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT is
made
as of the 15th
day of
January, 2008
AMONG:
XXXXXXXXXXXXXXXXXXXXX.XXX,
INC.,
a
corporation formed pursuant to the laws of the State of Nevada and having an
office for business located at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Company”)
AND:
XXXXX
ENTERPRISES, INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000 (“Xxxxx”);
AND:
TYVAN
ENTERPRISES, INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000
(“Tyvan”);
AND:
BADACO,
INC.,
a
corporation formed pursuant to the laws of the State of Utah and having an
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxx 00000 (“Badaco”
and together with Xxxxx and Tyvan, the “Principals”).
WHEREAS:
A. Company
is a reporting company whose common stock is quoted on the NASD “Bulletin
Board;”
B. Pursuant
to the terms of an Asset Purchase Agreement, dated as of the date hereof (the
“Purchase Agreement”) among Company, RazorData Corp., Boya Systems, LLC, Rabble,
LLC and Razor
Data, LLC,
the
Principals were issued shares of Company common stock (the “Purchase
Shares”);
C. The
shares of Company common stock, together with any securities received in
replacement of such shares or as stock dividends or splits, all securities
received in replacement of such shares in a recapitalization, merger,
reorganization, exchange or the like, and all new, substituted or additional
securities or other properties to which the Principal is entitled by reason
of
Purchaser’s ownership of the Purchase Shares are referred to collectively herein
as the “Company Shares;”
D. As
an
inducement to enter into the Purchase Agreement, Company has agreed to grant
to
the Principals certain registration and other rights in respect of the Company
Shares beneficially held by them.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1
REGISTRATION
RIGHTS
Piggy-Back
Registration
1.1 The
Principals will be entitled to “piggy-back” registration rights on registrations
of Company, subject to the right of its underwriters to reduce pro rata, in
view
of market conditions, the number of shares of the Principals proposed to be
registered and subject to any limitations pursuant to Rule 415 under
the
Securities Act of 1933, as amended (the “Securities Act”).
Company
shall notify all Principals in writing at least twenty (20) days prior to filing
any registration statement under the Securities Act, for purposes of effecting
a
public offering of securities of Company and will afford each Principal an
opportunity to include in such registration statement all or any part of the
Principal’s Company Shares then held by such Principal. Each Principal desiring
to include in any such registration statement all or any part of such
Principal’s Company Shares then held by such Principal shall, within ten (10)
days after receipt of the above-described notice from Company, so notify Company
in writing, and in such notice shall inform Company of the number of securities
such Principal wishes to include in such registration statement. If a Principal
decides not to include all of its securities in any registration statement
thereafter filed by Company, such Principal shall nevertheless continue to
have
the right to include its Company Shares in any subsequent registration statement
or registration statements as may be filed by Company with respect to offerings
of its securities, all upon the terms and conditions set forth
herein.
Registration
Expenses
1.2 The
registration expenses (exclusive of underwriting discounts and commissions)
of
all of the registrations under Section 1.1 above will be borne by
Company.
Transfer
of Registration Rights
1.3 The
registration rights may be transferred to a third party transferee who acquires
at least 10% of a Principal’s Company Shares. Transfer of registration rights to
a family member or for estate planning purposes will be without restriction
as
to minimum shareholding, but any shares so transferred shall be included in
the
calculation of the 10% figure referred to in Section 1.1 hereof.
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Other
Registration Provisions
Additional
Obligations
1.4 Company
agrees to the following additional obligations with respect to any registration
(a “Registration Statement”) filed by it hereunder:
(a) Company
shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with such Registration Statement, which prospectus is to
be
filed pursuant to Rule 424 promulgated under the Securities Act, as may be
necessary to keep such Registration Statement effective at all times during
the
Registration Period, and, during such period, comply with the provisions of
the
Securities Act with respect to the disposition of all Company Shares of Company
covered by such Registration Statement until such time as all of such Company
Shares shall have been disposed of in accordance with the intended methods
of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to the Registration
Statement which are required to be filed pursuant to this Agreement (including
pursuant to this Section 3(b)) by reason of Company filing a report on Form
10-Q, Form 10-K or any analogous report under the Securities Exchange Act of
1934, as amended (the "1934 Act"), Company shall have incorporated such report
by reference into such Registration Statement, if applicable, or shall file
such
amendments or supplements with the SEC on the same day on which the 1934 Act
report is filed which created the requirement for Company to amend or supplement
such Registration Statement.
(b) For
purposes of this Agreement, the “Registration Period” shall mean the period
commencing on the effectiveness of the Registration Statement and ending upon
the earlier of (i) the date as of which all Principals may sell all of the
Company Shares covered by such Registration Statement without restriction
pursuant to Rule 144 (or any successor thereto) promulgated under the Securities
Act, or (ii) the date on which the Principals shall have sold all of the Company
Shares covered by such Registration Statement.
(c) Company
shall use its best efforts to (i) register and qualify, unless an exemption
from
registration and qualification applies, the resale by Principals of the Company
Shares covered by a Registration Statement under such other securities or "blue
sky" laws of all applicable jurisdictions in the United States, (ii) prepare
and
file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may
be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify the
Company Shares for sale in such jurisdictions; provided, however, that Company
shall not be required in connection therewith or as a condition thereto to
(x)
qualify to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(e), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to service
of
process in any such jurisdiction. Company shall promptly notify each Principal
of the receipt by Company of any notification with respect to the suspension
of
the registration or qualification of any of the Company Shares for sale under
the securities or "blue sky" laws of any jurisdiction in the United States
or
its receipt of actual notice of the initiation or threatening of any proceeding
for such purpose.
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(d) Company
shall notify each Principal in writing of the happening of any event, as
promptly as practicable after becoming aware of such event, as a result of
which
the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
(provided that in no event shall such notice contain any material, nonpublic
information), and promptly prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission. Company shall also
promptly notify the Principals (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when the Registration
Statement or any post-effective amendment has become effective, (ii) of any
request by the SEC for amendments or supplements to the Registration Statement
or related prospectus or related information, and (iii) of Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate.
(e) Company
shall use its best efforts to prevent the issuance of any stop order or other
suspension of effectiveness of the Registration Statement, or the suspension
of
the qualification of any of the Company Shares for sale in any jurisdiction
and,
if such an order or suspension is issued, to obtain the withdrawal of such
order
or suspension at the earliest possible moment and to notify each Principal
who
holds Company Shares being sold of the issuance of such order and the resolution
thereof or its receipt of actual notice of the initiation or threat of any
proceeding for such purpose.
(f) Company
shall hold in confidence and not make any disclosure of information concerning
any Principal provided to Company unless (i) disclosure of such information
is
necessary to comply with federal or state securities laws or applicable rules
and regulations of any relevant market or exchange, (ii) the disclosure of
such
information is necessary to avoid or correct a misstatement or omission in
the
Registration Statement, (iii) the release of such information is ordered
pursuant to a subpoena or other final, non-appealable order from a court or
governmental body of competent jurisdiction, or (iv) such information has been
made generally available to the public other than by disclosure in violation
of
this Agreement or any other agreement. Company agrees that it shall, upon
learning that disclosure of such information concerning an Principal is sought
in or by a court or governmental body of competent jurisdiction or through
other
means, give prompt written notice to such Principal and allow such Principal,
at
such Principal’s expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
(g) Company
shall use its best efforts to cause all of the Company Shares covered by a
Registration Statement to be listed on each securities exchange on which
securities of the same class or series issued by Company are then listed, if
any.
(h) Company
shall cooperate with Buyer and, to the extent applicable, facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legend)
representing the Company Shares to be offered and resold pursuant to the
Registration Statement and enable such certificates to be in such denominations
or amounts, as the case may be, as Buyer may reasonably request and registered
in such names as Buyer may request.
-4-
(i) Company
shall use its best efforts to cause the Company Shares covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to consummate the
disposition of such Company Shares.
(j) Company
shall otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC in connection with the registration
hereunder.
(k) Within
two (2) Business Days after the Registration Statement is declared effective
by
the SEC, Company shall deliver, and shall cause legal counsel for Company to
deliver, to the transfer agent for such Company Shares (with copies to the
Principals) confirmation that such Registration Statement has been declared
effective by the SEC in such form as may be required by the transfer agent
to
permit the consummation of sales under such Registration Statement.
1.5
Other
registration rights provisions may be agreed to as are reasonable, including
cross-indemnification, the agreement by the Principals (if requested by the
underwriters in a public offering) not to sell any unregistered common stock
they hold following the effective date of the registration statement of such
offering, the period of time in which the registration statement will be kept
effective, underwriting arrangements and the like.
ARTICLE
4
GENERAL
PROVISIONS
Notice
4.1 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
facsimile. Any notice delivered by mail shall be deemed to have been received
on
the fourth business day after and excluding the date of mailing, except in
the
event of a disruption in regular postal service in which event such notice
shall
be deemed to be delivered on the actual date of receipt. Any notice delivered
personally or by facsimile shall be deemed to have been received on the actual
date of delivery.
Further
Assurances
4.2 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
-5-
Entire
Agreement
4.3 The
provisions contained herein constitute the entire agreement among Company and
the Principals respecting the subject matter hereof and supersede all previous
communications, representations and agreements, whether verbal or written,
among
Company and the Principals with respect to the subject matter
hereof.
Inurement
4.4 This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
Assignment
4.5 This
Agreement is not assignable without the prior written consent of the parties
hereto.
Counterparts
4.6 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by facsimile will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
Applicable
Law
4.7
This
Agreement is subject to the laws of the State of New
York.
[Remainder
of page intentionally left blank.]
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IN
WITNESS WHEREOF the
parties have executed this Agreement effective as of the day and year first
above written.
XXXXXXXXXXXXXXXXXXXXX.XXX, INC. | |||
By: | /s/ Xxxxxxxx X. Xxxxxx | ||
Name:
Xxxxxxxx X. Xxxxxx
Title:
Chief Executive Officer
|
XXXXX ENTERPRISES, INC. | |||
By: | /s/ Xxxxxx Xxxxxx | ||
Name:
Xxxxxx Xxxxxx
Title:
President
|
TYVAN
ENTERPRISES, INC.
|
|||
By: | /s/ Xxxxx Xxxxxxxx | ||
Name:
Xxxxx Xxxxxxxx
Title:
President
|
BADACO,
INC.
|
|||
By: | /s/ Xxxx X. Xxxx | ||
Name:
Xxxx X. Xxxx
Title:
President
|
|
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