REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement is made and entered into as of November 14, 2008
(as amended, modified or supplemented from time to time, this “Agreement”)
by and
between MDwerks, Inc., a Delaware corporation (the “Company”), and
each
securityholder identified on the signature pages hereto (each, including its
successors and assigns, a “Holder”
and
collectively the “Holders”).
This
Agreement is made pursuant to the Loan and Securities Purchase Agreement, dated
as of the date hereof between the Company, Xeni Financial Services, Corp. and
the Lender (as defined therein) (the “Purchase
Agreement”).
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Purchase Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
“Commission”
means
the U.S. Securities and Exchange Commission.
“Common
Stock”
means
shares of the Company’s common stock, par value $.001 per share.
“Company”
has the
meaning given to such term in the Preamble hereto.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Holder”
or
“Holders”
means
the Lender or any of its affiliates or transferees to the extent any of them
hold Registrable Securities, other than 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).
“Prospectus”
means
the prospectus included in the 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 the 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 issuable upon exercise of the Warrant.
“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.
“Requesting
Holders” has
the
meaning set forth in Section 2(a).
“Requested
Stock” has
the
meaning set forth in Section 2(a).
“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 purpose and
effect as such Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Warrant”
means
the Series J Warrant to Purchase Common Stock exercisable for 9,339,816 shares
of common stock, with an exercise price equal to $1.00 (subject to adjustment),
issued to the Lender pursuant to the Purchase Agreement.
2. Piggy-Back
Registration.
(a) If
at any
time after the date hereof, the Company proposes to register any of its
securities under the Securities Act in connection with the public offering
of
such securities solely for cash (other than a registration on Form X-0, Xxxx
X-0, or any successor or similar forms), whether for the account of the Company,
a selling shareholder, or otherwise, it will promptly, but not later than 30
days before the anticipated date of filing such registration statement, give
written notice to all record holders of the Registrable Securities; provided,
however, that the inclusion of Registrable Securities in a registration
statement filed pursuant to the terms of the certain Amended and Restated
Registration Rights Agreement, dated March 31, 2007, between the Company and
Vicis Capital Master Fund (“Vicis”)
shall
be subject to and conditioned upon the Company obtaining the waiver by Vicis
of
the provisions of Section 2(c) with respect to the inclusion of Registrable
Securities in such registration. Upon the written request from any Holders
(the
“Requesting
Holders”),
within 15 days after receipt of any such notice from the Company, the Company
will, except as herein provided, cause all of the Registrable Securities covered
by such request (the “Requested
Stock”)
held
by the Requesting Holders to be included in such registration statement, all
to
the extent requisite to permit the sale or other disposition by the prospective
seller or sellers of the Requested Stock; provided, further, that nothing herein
shall prevent the Company from, at any time, abandoning or delaying any
registration.
(b) If
any
registration pursuant to Section 2(a) shall be underwritten in whole or in
part,
the Company may require that the Requested Stock be included in the underwriting
on the same terms and conditions as the securities otherwise being sold through
the underwriters. In such event, the Requesting Holders shall, if requested
by
the underwriters, execute an underwriting agreement containing customary
representations and warranties by selling stockholders. If in the good faith
judgment of the managing underwriter of such public offering the inclusion
of
all of the Requested Stock would reduce the number of shares to be offered
by
the Company or interfere with the successful marketing of the shares of stock
offered by the Company, the number of shares of Requested Stock otherwise to
be
included in the underwritten public offering may be reduced pro rata (by number
of shares) among the Requesting Holders and all other holders of registration
rights who have requested inclusion of their securities or excluded in their
entirety if so required by the underwriter. To the extent only a portion of
the
Requested Stock is included in the underwritten public offering, those shares
of
Requested Stock which are thus excluded from the underwritten public offering
and any other securities of the Company held by such holders shall be withheld
from the market by the Holders thereof for a period, not to exceed 90 days,
which the managing underwriter reasonably determines is necessary in order
to
effect the underwritten public offering. The obligation of the Company under
Section 2(a) shall not apply after the earlier of (i) the date that all of
the
Conversion Shares have been sold pursuant to Rule 144 under the Securities
Act
or an effective registration statement, or (ii) such time as the Conversion
Shares are eligible for immediate resale pursuant to Rule 144(k) under the
Securities Act to the Holders.
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(c) If
the
registration statement is an offering to be made on a continuous basis pursuant
to Rule 415 and is not on a Form S-3, and the Commission advises the Company
that all of the Requested Stock may not be included under Rule 415(a)(i), then
the number of shares of Requested Stock otherwise to be included in such
registration statement may be reduced pro rata (by number of shares) among
the
Requesting Holders and all other holders of piggyback registration rights who
have requested inclusion of their securities to an amount to which is permitted
by the Commission for resale under Rule 415(a)(i).
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, as expeditiously as reasonably possible:
(a) prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as reasonably possible to any
comments received from the Commission, and use its best efforts to cause such
Registration Statement to become and remain effective, and promptly provide
to
the Holders copies of all filings and Commission letters of comment relating
thereto and before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Holders copies of all such
documents proposed to be filed, including documents incorporated by reference
in
the Prospectus and, if requested by the Holders, the exhibits incorporated
by
reference, and the Holders shall have the opportunity to object to any
information pertaining to itself that is contained therein and the Company
will
make the corrections reasonably requested by the Holders with respect to such
information prior to filing any Registration Statement or amendment thereto
or
any Prospectus or any supplement 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;
(c) furnish
to the Holders such number of copies of the Registration Statement and the
Prospectus included therein (including each preliminary Prospectus and any
amendments and supplements to the Registration Statement and the Prospectus)
and
such other documents as the Holders reasonably may request to facilitate the
public sale or disposition of the Registrable Securities covered by such
Registration Statement;
(d) use
its
best efforts to register or qualify the Holder’s Registrable Securities covered
by such Registration Statement under the securities or “blue sky” laws of such
jurisdictions within the United States as the Holders may reasonably request
and
do any and all other acts and things which may be reasonably necessary or
advisable to enable the Holders to consummate the disposition in such
jurisdiction of the Registrable Securities, 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;
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(f) immediately
notify the Holders 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 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, and, at the request of the Holders, the Company shall
prepare a supplement or amendment to such Prospectus so that, as thereafter
delivered to the purchasers of Registrable Securities, such Prospectus shall
not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statement therein
not misleading;
(g) to
the
extent pertinent to the registration and sale of the Registrable Securities
under the Registration Statement, make available for inspection by the Holders
and any attorney, accountant or other agent retained by the Holders, all
publicly available, non-confidential financial and other records, pertinent
corporate documents and properties of the Company, and, to the extent pertinent
to the registration and sale of the Registrable Securities under the
Registration Statement, 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 the Holders;
(h) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
(i) if
requested, cause to be delivered, immediately prior to the effectiveness of
the
Registration Statement, letters from the Company’s independent certified public
accountants addressed to the Holders (unless the Holders does not provide to
such accountants the appropriate representation letter required by rules
governing the accounting profession) stating that such accountants are
independent public accountants within the meaning of the Securities Act and
the
applicable rules and regulations adopted by the Commission thereunder, and
otherwise in customary form and covering such financial and accounting matters
as are customarily covered by letters of the independent certified public
accountants delivered in connection with primary or secondary underwritten
public offerings, as the case may be; and
(j) at
all
times after the Company has filed a Registration Statement with the Commission
pursuant to the requirements of either the Securities Act or the Exchange Act,
the Company shall file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the
Commission thereunder, and take such further action as the Holders may
reasonably request, all to the extent required to enable the Holders to be
eligible to sell Registrable Securities pursuant to Rule 144 (or any similar
rule then in effect).
4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration, filing and listing application
fees, costs of distributing any prospectuses and supplements thereto, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or “blue sky” laws, fees of the
NASD, fees of transfer agents and registrars, fees (not to exceed $20,000)
of,
and disbursements incurred by, one counsel for the Holders 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. The obligation of the Company to bear the expenses
described above shall apply irrespective of whether a registration becomes
effective, is withdrawn or suspended, is converted to another form of
registration and irrespective of when any of the foregoing shall
occur.
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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 or
any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act or applicable “blue sky” laws, and will reimburse each 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 such Holder 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, the Holders 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 the Holders 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 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
the Holders 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 the Holders specifically for use in any such document. Notwithstanding the
provisions of this paragraph, the Holders shall not be required to indemnify
any
person or entity in excess of the amount of the aggregate net proceeds received
by the Holders in respect of Registrable Securities in connection with any
such
registration under the Securities Act.
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(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) the Holders, or any
officer, director or controlling person of the Holders, 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 the Holders
or such officer, director or controlling person of the Holders in circumstances
for which indemnification is provided under this Section 5; then, and in each
such case, the Company and the Holders will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that the Holders is responsible only for
the
portion represented by the percentage that the public offering price of its
securities offered by the Registration Statement bears to the public offering
price of all securities offered by such Registration Statement, provided,
however,
that,
in any such case, (A) the Holders will not be required to contribute any amount
in excess of the public offering price of all such securities offered by it
pursuant to such Registration Statement; 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.
(e) The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities.
6. Representations
and Warranties.
(a) 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 Purchase 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
Securities to be integrated with other offerings (other than such concurrent
offering to the Holders) or other offerings of the Company that will not result
in the loss of an exemption from registration under Rule 506 of the Securities
Act).
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(b) The
shares of Common Stock issuable upon the exercise of the Warrant are all
restricted securities under the Securities Act as of the date of this Agreement.
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.
(c) The
Company understands the nature of the Registrable Securities issuable upon
the
exercise of the Warrant 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.
(d) 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.
(e) The
Company will at all times have authorized and reserved a sufficient number
of
shares of Common Stock for the complete exercise of the Warrant.
(f) The
Company shall provide written notice to each Holder of (i) the occurrence of
each Discontinuation Event (as defined below) and (ii) the declaration of
effectiveness by the Commission of each Registration Statement required to
be
filed hereunder, in each case within one (1) business day of the date of each
such occurrence and/or declaration.
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.
(c) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of a 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 Agreement, a
“Discontinuation Event” shall mean (i) when the Commission notifies the Company
whether there will be a “review” of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement (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.
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(d) 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.
(e) Notices.
Any
notice or request hereunder may be given to the Company or the Holders 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(f). 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 follows:
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If
to the Company:
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0000
XX 0xx Xxxxxx
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Xxxxx
X
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Xxxxxxxxx
Xxxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attention:
Xxxxxx X. Xxxx, CEO
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If
to Holders:
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To
the address set forth under Holder’s name on the signature page
hereto
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If
to any other Person who is
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then
the registered Holder:
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To
the address of such Holder as it appears in the stock transfer books
of
the Company or such other address as may be designated in writing
hereafter in accordance with this Section 7(f) by such
Person.
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(f) 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 and to the persons and entities as
permitted under the Warrant.
(g) 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 or electronic 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 or electronic signature were the original thereof.
(h) 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 NEW YORK 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
New York, State of New York shall have exclusion jurisdiction to hear and
determine any Proceeding between the Company, on the one hand, and the Holders,
on the other hand, pertaining to this Agreement or to any matter arising out
of
or related to this Agreement; provided,
that
the Holders and the Company acknowledge that any appeals from those courts
may
have to be heard by a court located outside of the County of New York, State
of
New York, and further provided,
that
nothing in this Agreement shall be deemed or operate to preclude the Holders
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 the Holders. 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(f) 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 the Holders
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, 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.
(i) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
9
(j) 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.
(k) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Signature
page follows]
10
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
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By:
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/s/
Xxxxxx X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Chief
Executive Officer
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DEBT
OPPORTUNITY FUND, LLLP,
a
Florida limited liability limited partnership
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By:
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Total
Capital Management, LLC,
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a
Florida limited liability company,
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as
its General Partner
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By:
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/s/
Xxxx Xxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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Manager
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Address
for Notices:
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Debt
Opportunity Fund, LLLP
00000
Xxxxxxxxxxx Xxxxx
Xxxx
X'Xxxxx, Xxxxxxx 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
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