AGFEED INDUSTRIES, INC. REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (the “Agreement”), dated as of February __, 2007,
is made by and between AGFEED INDUSTRIES, INC., a Nevada corporation (the
“Company”), and the individuals and entities whose names are set forth on the
signature page hereto (each an “Investor” or “Holder”, and collectively the
“Investors” or the “Holders”).
WHEREAS,
in connection with those certain Subscription Agreements by and among the
Company and the Investors (the “Subscription Agreement”), the Company
desires to sell to the Investors, and the Investors desire to purchase from
the
Company units of (a) shares of the Company’s common stock, $0.001 par value per
share (the “Common Stock”); and (b) Warrants to purchase additional shares of
Common Stock (the “Warrants”) equal to 8% of the Common Stock initially
purchased.
WHEREAS,
to induce the Investors to purchase the Common Stock and Warrants, the Company
has agreed to register the shares of Common Stock purchased and the Common
Stock
underlying the Warrants pursuant to the terms of this Agreement;
NOW,
THEREFORE, the Company and the Investors hereby covenant and agree as
follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Commission”
shall mean the Securities and Exchange Commission, or any other federal agency
at the time administering the Securities Act.
“Common
Stock” shall mean the common stock, par value $0.001 per share, of the
Company.
“Effectiveness
Date” shall mean that date which is
one
hundred eighty (180) days following the final closing of the Offering described
in the Subscription Agreement.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder, all as the same shall be in
effect
at the time.
“Filing
Date” shall mean that date which is sixty (60) days following the final closing
of the Offering described in the Subscription Agreement.
“Offering”
shall refer to the Company’s proposal to sell Units
for
$3, representing the purchase of (i) one share of Common Stock of AgFeed
and
(ii) a three (3) year Warrant to purchase Common Stock of AgFeed with an
initial
exercise price of $5.00 (8% coverage). The total amount of Units being offered
is 2,750,000 for a total maximum purchase price of $8,250,000 USD.
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“Register,”
“registered” and “registration” each shall refer to a registration effected by
preparing and filing a Registration Statement or statements or similar documents
in compliance with the Securities Act and the declaration or ordering of
effectiveness of such Registration Statement or document by the Commission.
“Registrable
Securities” shall mean the shares of Common Stock issuable pursuant to the
Subscription Agreement as part of the initial purchase or upon the exercise
of
the Warrants delivered as part of the Offering; provided,
however,
that
shares of Common Stock which are Registrable Securities shall cease to be
Registrable Securities (x) upon any sale pursuant to a Registration
Statement or Rule 144 under the Securities Act or (y) at such time, as they
become eligible for sale pursuant to Rule 144(k) under the Securities Act
or
another similar exemption under the Securities Act.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
at
the applicable time.
Capitalized
terms used but not defined herein shall have the meanings set forth in the
Subscription Agreement or the Warrants.
| 2. |
Automatic
Registration
|
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
the Registration Statement covering the resale of all of the Registrable
Securities for an offering to be made on a continuous basis pursuant to Rule
415. The Registration Statement required hereunder shall be on Form S3 (except
if the Company is not then eligible to register for resale the Registrable
Securities on Form S3, in which case the Registration Statement shall be
on
another appropriate form). Subject to the terms of this Agreement, the Company
shall use its commercially reasonable 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 not later than the
Effectiveness Date, and shall use its commercially reasonable efforts to
keep
the Registration Statement continuously effective under the Securities Act
until
the date when all Registrable Securities covered by the Registration Statement
have been sold or may be sold 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 (the “Effectiveness
Period”).
(b) If:
(i) a Registration Statement is not filed on or prior to the Filing Date,
or (ii) the Company fails to file with the Commission a request for
acceleration in accordance with Rule 461 promulgated under the Securities
Act,
within 5 trading days of the date that the Company is notified (orally or
in
writing, whichever is earlier) by the Commission that a Registration Statement
will not be “reviewed,” or is not subject to further review, or (iii) prior
to the date when such Registration Statement is first declared effective
by the
Commission, the Company fails to file a pre-effective amendment and otherwise
respond in writing to comments made by the Commission in respect of such
Registration Statement within 15 trading days after the receipt of comments
by
or notice from the Commission that such amendment is required in order for
a
Registration Statement to be declared effective, or (iv) a Registration
Statement filed or required to be filed hereunder is not declared effective
by
the Commission on or before the Effectiveness Date as a result of the failure
of
Company to meets its obligations with respect to such filing as provided
for
herein, or (v) after a Registration Statement is first declared effective
by the Commission, it ceases for any reason to remain continuously effective
as
to all Registrable Securities for which it is required to be effective, or
the
Holders are not permitted to utilize the Prospectus therein to resell such
Registrable Securities, for in any such case 15 consecutive trading days
but no
more than an aggregate of 25 trading days during any 12-month period (which
need
not be consecutive trading days) (any such failure or breach being referred
to
as an “Event,”
and
for purposes of clause (i) or (iv) the date on which such Event
occurs, or for purposes of clause (ii) the date on which such 5 trading day
period is exceeded, or for purposes of clause (iii) the date which such 15
trading day period is exceeded, or for purposes of clause (v) the date on
which such 15- or 25-day period, as applicable, is exceeded being referred
to as
“Event
Date”),
then
in addition to any other rights the Holders may have hereunder or under
applicable law: (x) on the first Event Date to occur the Company shall pay
to each Holder an amount in cash, as liquidated damages and not as a penalty,
equal to 2.0% of the aggregate purchase price paid by such Holder pursuant
to
the Subscription Agreement for any Registrable Securities then held by such
Holder; and (y) on each anniversary of such Event Date (if the applicable
Event, or any subsequent Event, shall not have been cured by such date) until
all Event(s) are cured, the Company shall pay to each Holder an amount in
cash,
as liquidated damages and not as a penalty, equal to 2.0% of the aggregate
purchase price paid by such Holder pursuant to the Subscription Agreement
for
any Registrable Securities then held by such Holder. If the Company fails
to pay
any liquidated damages pursuant to this Section in full within seven days
after the date payable, the Company will pay interest thereon at a rate of
15%
per annum (or such lesser maximum amount that is permitted to be paid by
applicable law) to the Holder, accruing daily from the date such liquidated
damages are due until such amounts, plus all such interest thereon, are paid
in
full. The liquidated damages pursuant to the terms hereof shall apply on
a daily
pro-rata basis for any portion of a year prior to the cure of an
Event.
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3. Registration
Procedures.
If and
whenever the Company is required by the provisions of Section 2 hereof to
use
its commercially reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare
and file with the Commission the Registration Statement with respect to such
securities and use its reasonable best efforts to cause such Registration
Statement to become effective in an expeditious manner;
(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 keep such Registration Statement continuously effective during
the
Effectiveness Period and comply with the provisions of the Securities Act
with
respect to the disposition of all Registrable Securities covered by such
Registration Statement in accordance with the intended method of disposition
set
forth in such Registration Statement for such period;
(c) furnish
to each seller of Registrable Securities and to each underwriter such number
of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the intended disposition of the Registrable Securities
covered by such Registration Statement;
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(d) use
its
commercially reasonable efforts (i) to register or qualify the Registrable
Securities covered by such Registration Statement under the securities or
“blue
sky” laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter,
reasonably shall request, (ii) to prepare and file in those jurisdictions
such
amendments (including post-effective amendments) and supplements, and take
such
other actions, as may be necessary to maintain such registration and
qualification in effect at all times for the period of distribution contemplated
thereby and (iii) to take such further action as may be necessary or advisable
to enable the disposition of the Registrable Securities in such jurisdictions,
provided,
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) use
its
commercially reasonable efforts to 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) immediately
notify each seller of Registrable Securities and each underwriter under such
Registration Statement, 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 any 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 promptly amend or supplement such
Registration Statement to correct any such untrue statement or omission;
(g) promptly
notify each seller of Registrable Securities of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
or
the initiation of any proceedings for that purpose and make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible time;
(h) if
the
offering is an underwritten offering, enter into a written agreement with
the
managing underwriter selected in the manner herein provided in such form
and
containing such provisions as are usual and customary in the securities business
for such an arrangement between such underwriter and companies of the Company's
size and investment stature, including, without limitation, customary
indemnification and contribution provisions;
(i) if
the
offering is an underwritten offering, at the request of any seller of
Registrable Securities, use its commercially reasonable efforts to furnish
to
such seller on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (i) a copy of an opinion
dated such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, stating that such Registration
Statement has become effective under the Securities Act and that (A) to the
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted
or are
pending or contemplated under the Securities Act, (B) the Registration
Statement, the related prospectus and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as
to
financial statements or other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by
counsel
for the underwriters; and (ii) a copy of a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within
the
meaning of the Securities Act and that, in the opinion of such accountants,
the
financial statements of the Company included in the Registration Statement
or
the prospectus, or any amendment or supplement thereof, comply as to form
in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
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(j) take
all
actions reasonably necessary to facilitate the timely preparation and delivery
of certificates (not bearing any legend restricting the sale or transfer
of such
securities) representing the Registrable Securities to be sold pursuant to
the
Registration Statement and to enable such certificates to be in such
denominations and registered in such names as the Investors or any underwriters
may reasonably request; and
(k) take
all
other reasonable actions necessary to expedite and facilitate the registration
of the Registrable Securities pursuant to the Registration Statement.
4. Obligations
of Holders.
Each
holder of Registrable Securities shall furnish to the Company such information
regarding such holder, the number of Registrable Securities owned and proposed
to be sold by it, the intended method of disposition of such securities and
any
other information as shall be required to effect the registration of the
Registrable Securities, and cooperate with the Company in preparing the
Registration Statement and in complying with the requirements of the Securities
Act.
5. Expenses.
(a) All
expenses incurred by the Company in complying with Sections 2 and 3 including,
without limitation, all registration and filing fees (including the fees
of the
Securities and Exchange Commission and any other regulatory body with which
the
Company is required to file), 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 transfer agents and registrars and fees
and disbursements of one counsel for the holders of Registrable Securities,
not
to exceed $5,000, but excluding any Selling Expenses, are called “Registration
Expenses.” All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities are called “Selling Expenses.”
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(b) The
Company will pay all Registration Expenses in connection with any Registration
Statement filed hereunder, and the Selling Expenses in connection with each
such
Registration Statement shall be borne by the participating sellers in proportion
to the number of Registrable Securities sold by each or as they may otherwise
agree.
6. Indemnification
and Contribution.
(a) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant to the terms of this Agreement, the Company will
indemnify and hold harmless and pay and reimburse, each seller of such
Registrable Securities thereunder, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such seller
or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller,
underwriter or controlling person 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 hereto or 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 of the Securities Act or any state
securities or blue sky laws and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any
such loss, claim, damage, liability or action; provided, 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 the Company's reliance
on an
untrue statement or alleged untrue statement or omission or alleged omission
so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use
in
such Registration Statement or prospectus.
(b) In
the
event of a registration of any of the Registrable Securities under the
Securities Act pursuant hereto each seller of such Registrable Securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning
of the
Securities Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person
who
controls any underwriter within the meaning of the Securities Act, against
all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person 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
reliance on any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto or 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 officer, director, underwriter and controlling person
for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, that such seller will be liable hereunder 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 made in reliance upon and in conformity with information
pertaining to such seller, as such, furnished in writing to the Company by
such
seller specifically for use in such Registration Statement or prospectus,
and
provided, that the liability of each seller hereunder shall be limited to
the
proceeds received by such seller from the sale of Registrable Securities
covered
by such Registration Statement. Notwithstanding the foregoing, the indemnity
provided in this Section 6(b) shall not apply to amounts paid in settlement
of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of such indemnified party and provided further,
that the Company shall not be liable in any such case to the extent that
any
such loss, claim, damage or liability (or action in respect thereof) arises
out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission in such Registration Statement, which untrue statement
or
alleged untrue statement or omission or alleged omission is completely corrected
in an amendment or supplement to the Registration Statement and the undersigned
indemnitees thereafter fail to deliver or cause to be delivered such
Registration Statement as so amended or supplemented prior to or concurrently
with the sale of the Registrable Securities to the person asserting such
loss,
claim, damage or liability (or actions in respect thereof) or expense after
the
Company has furnished the undersigned with the same.
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(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action, such indemnified party shall, if a claim in respect thereof is
to be
made against the indemnifying party hereunder, 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 6 and shall only relieve it from any liability which
it
may have to such indemnified party under this Section 6 if and to the extent
the
indemnifying party is materially 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 reasonably 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 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
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
based upon written advise of its counsel 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 a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of
such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party
as
incurred.
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(d) In
order
to provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
6
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 6 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder or any such controlling
person in circumstances for which indemnification is provided under this
Section
6; then, and in each such case, the Company and such holder 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 such
holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by the Registration
Statement bears to the public offering price of all securities offered by
such
Registration Statement, and the Company is responsible for the remaining
portion; provided,
that,
in any such case, (A) no such holder will be required to contribute any amount
in excess of the public offering price of all such Registrable Securities
offered by it pursuant to such Registration Statement and (B) no person or
entity guilty of fraudulent misrepresentation (within the meaning of Section
12(f) of the Securities Act) will be entitled to contribution from any person
or
entity who was not guilty of such fraudulent misrepresentation.
7. Changes
in Capital Stock.
If,
and
as often as, there is any change in the capital stock of the Company by way
of a
stock split, stock dividend, combination or reclassification, or through
a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that
the
rights and privileges granted hereby shall continue as so changed.
8. Representations
and Warranties of the Company.
The
Company represents and warrants to the Investor as follows:
(a) The
execution, delivery and performance of this Agreement by the Company have
been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Articles of Incorporation or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which it or any or its properties
or
assets is bound, conflict with, result in a breach of or constitute (with
due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien,
charge
or encumbrance of any nature whatsoever upon any of the properties or assets
of
the Company or its subsidiaries.
(b) This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency
or
other laws affecting the rights of creditors generally and to general equitable
principles and the availability of specific performance.
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9. Assignment
of Registration Rights.
The
rights to have the Company register Registrable Securities pursuant to this
Agreement may be assigned by the Investor to transferees or assignees of
such
securities; provided,
that
the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and
the
securities with respect to which such registration rights are being assigned.
The term “Investor” as used in this Agreement shall include such permitted
assigns.
10. Rule
144 Requirements.
The
Company agrees to:
(a) make
and
keep current public information about the Company available, as those terms
are
understood and defined in Rule 144;
(b) use
its
commercially
reasonable
efforts
to file with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act (at
any
time after it has become subject to such reporting requirements);
and
(c) furnish
to any holder of Registrable Securities upon request (i) a written statement
by
the Company as to its compliance with the reporting requirements of Rule
144 and
of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company, and (iii) such other reports and documents
of the Company as such holder may reasonably request to avail itself of any
similar rule or regulation of the Commission allowing it to sell any such
securities without registration.
11. Termination.
All of
the Company’s obligations to register Registrable Shares under Sections 2 and 3
hereto shall terminate upon the date on which no Investor holds any Registrable
Securities or all of the Registrable Shares are eligible for sale under rule
144(k).
12. Miscellaneous.
(a) All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto (including without limitation
transferees of any Registrable Securities), whether so expressed or not.
(b) All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by telecopier, addressed (i) if to
the
Company, at AgFeed Industries, Inc., 0000 Xxxx Xxx Xxxxxx, Xxxxxxxx and
Technical Development Zone, Xxx Xxxxx City, Jiangxi, Province, China 330013,
Attn: Attn: Xx. Xxxxxxx
Xxxxx, CEO, phone 00-0000-0000000, facsimile 00-00-00000000;
and
(ii) if to any holder of Registrable Securities, to it at such address as
may
have been furnished to the Company in writing by such holder; or, in any
case,
at such other address or addresses as shall have been furnished in writing
to
the Company (in the case of a holder of Registrable Securities) or to the
holders of Registrable Securities (in the case of the Company) in accordance
with the provisions of this paragraph.
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(c) This
Agreement shall be governed by and construed under the laws of the State
of New
York as applied to agreements among New York residents entered into and to
be
performed entirely within New York. The Company (1) agrees that any legal
suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in New York State Supreme Court, County of New York,
or
in the United States District Court for the Southern District of New York,
(2)
waives any objection which the Company may have now or hereafter to the venue
of
any such suit, action or proceeding, and (3) irrevocably consents to the
jurisdiction of the New York State Supreme Court, County of New York, and
the
United States District Court for the Southern District of New York in any
such
suit, action or proceeding. The Company further agrees to accept and acknowledge
service of any and all process which may be served in any such suit, action
or
proceeding in the New York State Supreme Court, County of New York, or in
the
United States District Court for the Southern District of New York and agrees
that service of process upon the Company mailed by certified mail to the
Company's address shall be deemed in every respect effective service of process
upon the Company, in any such suit, action or proceeding. THE PARTIES HERETO
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DOCUMENT OR AGREEMENT
CONTEMPLATED HEREBY.
(d) In
the
event of a breach by the Company or by a Holder, of any of their 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. The Company and each Holder
agree that monetary damages would not provide adequate compensation for any
losses incurred by reason of a breach by it of any of the provisions of this
Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that
a remedy at law would be adequate.
(e) This
Agreement may not be amended or modified without the written consent of the
Company and the holders of at least a majority of the Registrable Securities.
(f) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate
as a
waiver thereof. No waiver shall be effective unless and until it is in writing
and signed by the party granting the waiver.
(g) This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement, once executed by a party, may be delivered to
the
other party hereto by facsimile transmission of a copy of this Agreement
bearing
the signature of the party so delivering this Agreement.
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10
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(h) If
any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach
only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement
shall
be carried out as if any such illegal, invalid or unenforceable provision
were
not contained herein.
(i) This
Agreement constitutes the entire contract among the Company and the Investors
relative to the subject matter hereof and supersedes in its entirety any
and all
prior agreements, understandings and discussions with respect
thereto.
(j)
The
headings of the sections of this Agreement are for convenience and shall
not by
themselves determine the interpretation of this Agreement.
(k) The
obligations of each Holder hereunder are several and not joint with the
obligations of any other Holder hereunder, and no Holder shall be responsible
in
any way for the performance of the obligations of any other Holder hereunder.
Nothing contained herein or in any other agreement or document delivered
at any
closing pursuant to the Subscription Agreement, and no action taken by any
Holder pursuant hereto or thereto, shall be deemed to constitute the Holders
as
a partnership, an association, a joint venture or any other kind of entity,
or
create a presumption that the Holders are in any way acting in concert with
respect to such obligations or the transactions contemplated by this Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
By:________________________________
Name:
Title:
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LIST
OF
INVESTORS
INVESTOR
NAME PER SUBSCRIPTION DOCUMENT SIGNATURE PAGE
Page
12
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