TRAVEL HUNT HOLDINGS, INC. REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.8
TRAVEL
XXXX HOLDINGS, INC.
REGISTRATION
RIGHTS AGREEMENT, dated as of March 28, 2008, between TRAVEL XXXX HOLDINGS,
INC., a Delaware corporation (the “Company”),
Fountainhead Capital Management Limited and La Pergola Investments Limited
(collectively, “Fountainhead”).
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the parties hereto agree as follows:
1. (a) Piggyback
Registration.
The
Company shall give Fountainhead at least 10 days’ prior written notice of each
filing by the Company of a registration statement (other than a registration
statement on Form S-4 or Form S-8 or on any successor forms thereto) with the
Securities Exchange Commission (the “Commission”)
pursuant to which the Company is registering shares of its Common Stock for
sale
by itself or others for cash proceeds. If requested by Fountainhead in writing
within 20 days after receipt of any such notice, the Company shall, at the
Company’s sole expense (other than the underwriting discounts, if any, payable
in respect of the Shares sold by Fountainhead), register all or, at
Fountainhead’s option, any portion of the shares of common stock then held by
Fountainhead, including all shares of common stock issuable to Fountainhead
upon
the exercise, conversion or exchange of other securities now held by
Fountainhead (the “Shares”),
concurrently with the registration of such other securities, all to the extent
requisite to permit the public offering and sale of the Shares through the
securities exchange, if any, on which the Common Stock is being sold or on
the
over-the-counter market, and will use its commercially reasonable efforts
through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as practicable. If the
managing underwriter of any such offering shall determine and advise the Company
that, in its opinion, the distribution of all or a portion of the Shares
requested to be included in the registration concurrently with the securities
being registered by the Company would adversely affect the distribution of
such
securities by the Company, then the Company will include in such registration
first, the securities that the Company proposes to sell itself and second,
the
Shares requested to be included in such registration, to the extent permitted
by
the managing underwriter.
(b)
In
the event of a registration pursuant to the provisions of this Agreement, the
Company shall use its reasonable commercial efforts to cause the Shares so
registered to be registered or qualified for sale under the securities or blue
sky laws of such jurisdictions as Fountainhead may reasonably request; provided,
however, that the Company shall not be required to qualify to do business in
any
state by reason of this Section 1(b) in which it is not otherwise required
to
qualify to do business.
(c)
The
Company shall keep effective any registration or qualification contemplated
by
this Section 1 and shall from time to time amend or supplement each applicable
registration statement, preliminary prospectus, final prospectus, application,
document and communication until such time as all of the Shares may be sold
without volume restrictions pursuant to Rule 144, in each case 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.
(d)
In
the event of a registration pursuant to the provisions of this Agreement, the
Company shall furnish to Fountainhead such reasonable number of copies of the
registration statement and of each amendment and supplement thereto (in each
case, including all exhibits), of each prospectus contained in such registration
statement and each supplement or amendment thereto (including each preliminary
prospectus), all of which shall conform to the requirements of the Securities
Act and the rules and regulations thereunder, and such other documents, as
Fountainhead may reasonably request to facilitate the disposition of the Shares
included in such registration.
(e)
The
Company shall notify Fountainhead promptly when such registration statement
has
become effective or a supplement to any prospectus forming a part of such
registration statement has been filed.
(f)
The
Company shall advise Fountainhead promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the Commission suspending
the effectiveness of such registration statement, or the initiation or
threatening of any proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued.
(g)
The
Company shall promptly notify Fountainhead 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, as then in effect, would include an 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 not misleading in the light of
the
circumstances then existing, and at the reasonable request of Fountainhead
prepare and furnish to it such number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Shares or securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made.
The
Fountainhead shall suspend all sales of the Shares upon receipt of such notice
from the Company and shall not re-commence sales until it receives copies of
any
necessary amendment or supplement to such prospectus, which shall be delivered
to Fountainhead within 30 days of the date of such notice from the
Company.
(h)
If
requested by the underwriter for any underwritten offering of Shares, the
Company and Fountainhead will enter into an underwriting agreement with such
underwriter for such offering, which shall be reasonably satisfactory in
substance and form to the Company, the Company’s counsel and Fountainhead’s
counsel, and the underwriter, and such agreement shall contain such
representations and warranties by the Company and Fountainhead and such other
terms and provisions as are customarily contained in an underwriting agreement
with respect to secondary distributions solely by selling stockholders,
including, without limitation, indemnities substantially to the effect and
to
the extent provided in Section 2 of this Agreement.
(i)
The
Company agrees that until all the Shares have been sold under a registration
statement or pursuant to Rule 144 promulgated under the Securities Act or other
available exemption from Securities Act registration requirements, it shall
use
its reasonable commercial efforts to keep current in filing all reports,
statements and other materials required to be filed with the Commission to
permit Fountainhead to sell the Shares under Rule 144.
(j)
Fountainhead hereby agrees not to offer, sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any of the
Company's Common Stock held of record or beneficially owned by Fountainhead
(other than those included in the registration) which at the time of the
effective date of such registration statement may be sold or otherwise
transferred in reliance upon Rule 144 during the period of time (not to exceed
180 days) determined by the Board of Directors of the Company upon advice of
its
managing underwriter, from and after the effective date of the registration
statement; provided that the obligations of Fountainhead under this Section
1(j)
shall not apply unless each officer and director of the Company then
outstanding, in each case, who are not signatories to this Agreement, are bound
by similar restrictions. Such restriction shall not apply to shares registered
in such offering. In order to enforce this provision, the Company may impose
stop-transfer instructions with respect to such Shares until the end of such
period.
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(k)
However, nothing herein shall be construed to prohibit Fountainhead from
reselling all or part of the Shares in a private transaction or transactions
exempt from Securities Act registration under Section 4(1) thereof or otherwise;
provided, however, that any such transferee(s) shall have the same registration
rights and have the same obligations hereunder as Fountainhead, and that
Fountainhead and all such transferees together shall share any resale limit
imposed by an underwriter.
2. Indemnification.
(a)
Subject to the conditions set forth below, the Company agrees to indemnify
and
hold harmless Fountainhead, his employees, agents, and counsel, and each person,
if any, who controls any such person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Securities and Exchange Act of 1934,
as
amended (the “Exchange
Act”)
from
and against any and all loss, liability, charge, claim, damage, and expense
whatsoever (which shall include, for all purposes of this Section 2, but not
be
limited to, attorneys’ fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing, or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation) as and when incurred, arising out
of,
based upon, or in connection with (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any registration statement,
preliminary prospectus, or final prospectus (as from time to time amended and
supplemented) or any amendment or supplement thereto, relating to the sale
of
any of the Shares or (B) in any application or other document or communication
(in this Section 2 collectively called an “application”)
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to
register or qualify any of the Shares under the securities or blue sky laws
thereof or filed with the Commission or any securities exchange; or any omission
or alleged omission to state a material fact required to be stated therein
or
necessary to make the statements made therein not misleading, unless (x) such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company with respect to Fountainhead by or on
behalf of Fountainhead expressly for inclusion in any registration statement,
preliminary prospectus, or final prospectus, or any amendment or supplement
thereto, or in any application, as the case may be, or (y) such loss, liability,
charge, claim, damage or expense arises out of Fountainhead’s failure to comply
with the terms and provisions of this Agreement, or (ii) any breach of any
representation, warranty, covenant, or agreement of the Company contained in
this Agreement. The foregoing agreement to indemnify shall be in addition to
any
liability the Company may otherwise have, including liabilities arising under
this Agreement.
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If
any
action is brought against Fountainhead or any of his employees, agents, or
counsel, or any controlling persons of such person (an “indemnified
party”)
in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such indemnified party or parties shall promptly notify
the
Company in writing of the institution of such action (but the failure so to
notify shall not relieve the Company from any liability other than pursuant
to
this Section 2(a)) and the Company shall promptly assume the defense of such
action, including the employment of counsel provided that the indemnified party
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of
such
action or the Company shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be one or more legal defenses available to it or them
or to other indemnified parties which are different from or additional to those
available to the Company, in any of which events such fees and expenses shall
be
borne by the Company and the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties. Anything
in this Section 2 to the contrary not withstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent, which shall not be unreasonably withheld. The Company shall
not, without the prior written consent of each indemnified party that is not
released as described in this sentence, settle or compromise any action, or
permit a default or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, in respect of which indemnity may
be
sought hereunder (whether or not any indemnified party is a party thereto)
unless such settlement, compromise, consent, or termination includes an
unconditional release of each indemnified party from all liability in respect
of
such action. The Company agrees promptly to notify Fountainhead of the
commencement of any litigation or proceedings against the Company or any of
its
officers or directors in connection with the sale of any Shares or any
preliminary prospectus, prospectus, registration statement, or amendment or
supplement thereto, or any application relating to any sale of any
Shares.
(b)
The
Fountainhead agrees to indemnify and hold harmless the Company, each director
of
the Company, each officer of the Company who shall have signed any registration
statement covering Shares held by Fountainhead, each other person, if any,
who
controls the Company within the meaning of Section 15 of the Securities Act
or
Section 20(a) of the Exchange Act, and its or their respective counsel, to
the
same extent as the foregoing indemnity from the Company to Fountainhead in
Section 2(a) but only with respect to statements or omissions, if any, made
in
any registration statement, preliminary prospectus, or final prospectus (as
from
time to time amended and supplemented) or any amendment or supplement thereto,
or in any application, in reliance upon and in conformity with written
information furnished to the Company with respect to Fountainhead by or on
behalf of Fountainhead, expressly for inclusion in any such registration
statement, preliminary prospectus, or final prospectus, or any amendment or
supplement thereto, or in any application, as the case may be. If any action
shall be brought against the Company or any other person so indemnified based
on
any such registration statement, preliminary prospectus, or final prospectus,
or
any amendment or supplement thereto, or in any application, and in respect
of
which indemnity may be sought against Fountainhead pursuant to this Section
2(b), Fountainhead shall have the rights and duties given to the Company, and
the Company and each other person so indemnified shall have the rights and
duties given to the indemnified parties, by the provisions of Section
2(a).
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(c)
To
provide for just and equitable contribution, if (i) an indemnified party makes
a
claim for indemnification pursuant to Section 2(a) or 2(b) (subject to the
limitations thereof) but it is found in a final judicial determination, not
subject to further appeal, that such indemnification may not be enforced in
such
case, even though this Agreement expressly provides for indemnification in
such
case, or (ii) any indemnified or indemnifying party seeks contribution under
the
Securities Act, the Exchange Act or other wise, then the Company (including
for
this purpose any contribution made by or on behalf of any director of the
Company, any officer of the Company who signed any such registration statement,
any controlling person of the Company, and its or their respective counsel)
as
one entity, and Fountainhead (including for this purpose any contribution by
or
on behalf of an indemnified party) as a second entity, shall contribute to
the
losses, liabilities, claims, damages, and expenses whatsoever to which any
of
them may be subject, on the basis of relevant equitable considerations such
as
the relative fault of the Company and Fountainhead in connection with the facts
which resulted in such losses, liabilities, claims, damages, and expenses.
The
relative fault, in the case of an untrue statement, alleged untrue statement,
omission, or alleged omission shall be determined by, among other things,
whether such statement, alleged statement, omission or alleged omission relates
to information supplied by the Company or by Fountainhead, and the parties’
relative intent, knowledge, access to information, and opportunity to correct
or
prevent such statement, alleged statement, omission, or alleged omission. The
Company and Fountainhead agree that it would be unjust and inequitable if the
respective obligations of the Company and Fountainhead for contribution were
determined by pro rata or per capita allocation of the aggregate losses,
liabilities, claims, damages, and expenses (even if Fountainhead and the other
indemnified parties were treated as one entity for such purpose) or by any
other
method of allocation that does not reflect the equitable considerations referred
to in this Section 2(c). No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 2(c) each person, if any, who
controls Fountainhead within the meaning of Section 15 of the Securities Act
or
Section 20(a) of the Exchange Act and each employee, agent, and counsel of
Fountainhead or control person shall have the same rights to contribution as
Fountainhead and each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, each officer of the Company who shall have signed any such registration
statement, each director of the Company, and its or their respective counsel
shall have the same rights to contribution as the Company, subject to each
case
to the provisions of this Section 2(c). Anything in this Section 2(c) to the
contrary notwithstanding, no party shall be liable for contribution with respect
to the settlement of any claim or action effected without its written consent.
This Section 2(c) is intended to supersede any right to contribution under
the
Securities Act, the Exchange Act or otherwise.
3.
Miscellaneous.
(a)
Remedies.
In the
event of a breach by the Company of its obligations under this Agreement,
Fountainhead, in addition to being entitled to exercise all rights granted
by
law, including recovery of damages, will be entitled to specific performance
of
its rights under this Agreement.
(b)
Agreements
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, unless such amendment, modification or
supplement is in writing and signed by the Company and Fountainhead.
(c)
Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, registered first-class mail, telex, or
telecopies, initially to the address set forth in the preamble to this
Agreement, and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 3(c). All such notices and
communications shall be deemed to have been duly given when delivered by hand,
if personally delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; and when receipt
is
acknowledged, if telecopied.
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(d)
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties.
(e)
Counterparts;
Facsimile Execution.
This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate 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. Facsimile execution and delivery of this Agreement is legal,
valid and binding for all purposes.
(f)
Headings.
The
headings in this Agreement are for convenience of references only and shall
not
limit or otherwise affect the meaning hereof.
(g)
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without reference to its conflicts of law
provisions. Each
of
the parties submits to the jurisdiction of any state or federal court sitting
in
New York, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding
may
be heard and determined in any such court. Each of the parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding
so
brought and waives any bond, surety, or other security that might be required
of
any other party with respect thereto. Nothing in this Section, however, shall
affect the right of any party to bring any action or proceeding arising out
of
or relating to this Agreement in any other court or to serve legal process
in
any other manner permitted by law or at equity. Each party agrees that a final
judgment in any action or proceeding so brought shall be conclusive and may
be
enforced by suit on the judgment or in any other manner provided by law or
at
equity.
(h)
Severability.
In the
event that any one or more of the provisions contained herein, or the
application hereof in any circumstance is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provisions
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i)
Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of this agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein, concerning the registration rights
granted by the Company pursuant to this Agreement.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to
be executed as of the date first written above.
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By:
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/s/
Xxxxxxxx Alison
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Name:
Xxxxxxxx Xxxxxx
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Title:
Chief Executive Officer
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FOUNTAINHEAD
CAPITAL
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MANAGEMENT
LIMITED
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By:
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/s/
Xxxxxx X.X. Xxxxxx
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Name:
Xxxxxx X.X. Xxxxxx
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Title:
Attorney-in-Fact
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Address:
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1
Portman House, Hue Street
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St.
Helier, Jersey, Channel Islands
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JE4
5RP
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LA
PERGOLA INVESTMENTS LIMITED
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By:
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/s/
Xxxxxx X.X. Xxxxxx
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Name:
Xxxxxx X.X. Xxxxxx
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Title:
Attorney-in-Fact
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Address:
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1
Xxxxxxx Xxxxx, Xxx Xxxxxx
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XX0
0XX
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