REGISTRATION RIGHTS AGREEMENT
THIS
AGREEMENT
is made
as of September __, 2007, by and between Zagg Incorporated, a Nevada corporation
(the “Company”),
the
stockholder signatory hereto (the “Stockholder”).
WHEREAS,
on
August 9, 2007, the Company filed a registration statement on Form SB-2 (the
“Initial Registration”) on behalf of certain shareholders of the Company;
and
WHEREAS,
the
Stockholder desires to waive any legal rights available to Stockholder that
may
exist to participate in the Initial Registration in exchange for the
registration rights as contained in this Agreement;
NOW
THEREFORE,
in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Registration
Rights.
(a)
Grant
of Registration Rights.
As soon
as practicable after effectiveness of the Initial Registration, but in no event
earlier than legally permissible, the Company agrees to register under the
Securities Act of 1933, as amended (the “Securities
Act”),
all
of the shares of the Company’s common stock issued to the Stockholder by the
Company as of the date hereof (the “Registrable
Securities”)
on an
applicable Securities and Exchange Commission (the “SEC”)
form.
(b)
Additional
Registration Statements.
In the
event the Company is unable for any reason to register all of the Registrable
Securities, including but not limited to an SEC interpretation of Rule 415
as to
the amount of securities eligible in any one offering, the Company agrees to
file a subsequent registration statement within a reasonable time frame and
delay, and as many registration statements as are necessary to fulfill and
accomplish the registration rights granted to Stockholder as contained in
section 1(a). Moreover, it is contemplated that Stockholder will be receiving
a
warrant to purchase additional shares of the company and at such time, the
Company will also grant Shareholder piggy back registration rights which will
allow the Shareholder to be included in any subsequent registration statements
that may be filed by the Company.
(c)
Waiver
of Rights in the Initial Registration.
In
exchange for the rights conferred in section 1(a) and (b), the Stockholder
hereby irrevocably and unconditionally releases the Company from any and all
liabilities, actions, contracts, agreements, promises, claims and demands of
any
kind whatsoever, in law or equity, that relate in any way to rights available
to
the Stockholder to participate in the Initial Registration.
2.
Registration
Procedures.
The
Company shall use its best efforts to effect the registration and the sale
of
such Registrable Securities, and pursuant thereto the Company shall as
expeditiously as possible:
(a)
prepare and file with the SEC a registration statement with respect to such
Registrable Securities and use all commercially reasonable efforts to cause
such
registration statement to become effective;
(b)
notify the Stockholder of the effectiveness of the registration statement filed
hereunder and prepare and file with the SEC such amendments and supplements
to
such registration statement and the prospectus used in connection therewith
as
may be necessary to keep such registration statement effective for a period
of
not less than 180 days;
(c)
furnish to the Stockholder such number of copies of the registration statement,
each amendment and supplement thereto, the prospectus included in the
registration statement (including each preliminary prospectus) and such other
documents as the Stockholder may reasonably request in order to facilitate
the
disposition of the Registrable Securities owned by the Stockholder;
(d)
notify the Stockholder, 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 included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary
to
make the statements therein not misleading, and, at the request of the
Stockholder, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement
of
a material fact or omit to state any fact necessary to make the statements
therein not misleading;
(e)
in
the event of the issuance of any stop order suspending the effectiveness of
a
registration statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any common stock included
in such registration statement for sale in any jurisdiction, the Company shall
use its best efforts promptly to obtain the withdrawal of such order;
3.
Registration
Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, fees and disbursements of custodians, fees
and
disbursements of counsel for the Company and all independent certified public
accountants (all such expenses being herein called “Registration
Expenses”)
shall
be borne by the Company. The Stockholder will pay any commissions or other
fees
payable to brokers or dealers in connection with any sale of the Registrable
Securities.
4.
Indemnification.
(a)
The
Company agrees to indemnify, to the extent permitted by law, the Stockholder,
its Shareholders, members, managers, officers and directors and each person
who
controls the Stockholder (within the meaning of the Securities Act) against
all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the Stockholder.
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(b)
In
connection with any registration statement in which the Stockholder is
participating, the Stockholder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, shall indemnify the Company, its directors and officers and
each person who controls the Company (within the meaning of the Securities
Act)
against any losses, claims, damages, liabilities and expenses resulting from
any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission
is
contained in any information or affidavit so furnished in writing by the
Stockholder.
(c)
Any
person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any person’s right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party’s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not
be
unreasonably withheld, conditioned or delayed). An indemnifying party who is
not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in
the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d)
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. The Company also agrees to make
such provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company’s indemnification is
unavailable for any reason.
5.
Miscellaneous.
(a)
This
Agreement and the letter agreement of even date submitted herewith between
the
Company and Stockholder embody the complete agreement and understanding among
the parties and supersede and preempt any prior understandings, agreements
or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
(b)
Any
person having rights under any provision of this Agreement shall be entitled
to
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages
may
not be an adequate remedy for any breach of the provisions of this Agreement
and
that any party may in its sole discretion apply to any court of law or equity
of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
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(c)
The
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Stockholder.
(d)
All
covenants and agreements 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 whether so expressed or not. Notwithstanding
the
foregoing, however, this Agreement is not assignable without the prior written
consent of both parties hereto.
(e)
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of this Agreement.
(f)
This
Agreement may be executed simultaneously in two or more counterparts, any one
of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(g)
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a part of this Agreement.
(h)
The
corporate law of Nevada shall govern all issues and questions concerning the
relative rights of the Company and its shareholders. All other issues and
questions concerning the construction, validity, interpretation and enforcement
of this Agreement shall be governed by, and construed in accordance with, the
laws of the Nevada, without giving effect to any choice of law or conflict
of
law rules or provisions (whether of Nevada law or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the
Nevada.
(i)
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by reputable overnight courier service (charges prepaid) or mailed
to the recipient by certified or registered mail, return receipt requested
and
postage prepaid. Such notices, demands and other communications shall be sent
to
the following addresses:
Zagg
Incorporated:
0000
Xxxxx 000 Xxxx, Xxxxx X
Xxxx
Xxxx
Xxxx, Xxxx 00000
Attention:
Xxxxxxx X’Xxxxx (CFO)
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With
copies to:
Cane
Xxxxx LLP
0000
X.
Xxxx Xxxxxxx, Xx.
Xxx
Xxxxx, XX
Attention:
Xxxxx Xxxxx
Stockholder:
At
the
address provided below
or
to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written above.
| ZAGG INCORPORATED. | ||
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By:
Name:
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Xxxxxx
X. Xxxxxxxx XX
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Title:
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CEO
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STOCKHOLDER
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By:
Name:
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Title:
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Address:
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