REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”),
dated
as of October 31, 2007, by and among HANDHELD
ENTERTAINMENT, INC.,
a
Delaware corporation (the “Company”),
and
the undersigned Buyers listed on Schedule I attached hereto (each, a
“Buyer”
and
collectively, the “Buyers”).
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the parties
hereto dated as of August 2, 2007 (the “Securities
Purchase Agreement”),
the
Company has agreed to issue and sell to the Buyers (i) secured convertible
debentures (the “Convertible
Debentures”)
which
shall be convertible into shares of the Company’s common stock, par value
$0.0001 per share (the “Common
Stock,”
as
converted, the “Conversion
Shares”)
in
accordance with the terms of the Convertible Debentures, and (ii) warrants
(the
“Warrants”),
which
will be exercisable to purchase shares of Common Stock (as exercised,
collectively, the “Warrant
Shares”).
Capitalized terms not defined herein shall have the meaning ascribed to them
in
the Securities Purchase Agreement.
B. To
induce
the Buyers to execute and deliver the Securities Purchase Agreement, the Company
has agreed to provide certain registration rights under the Securities Act
of
1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the “Securities
Act”),
and
applicable state securities laws.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and the Buyers hereby agree as
follows:
1. DEFINITIONS.
As
used
in this Agreement, the following terms shall have the following
meanings:
(a) “Closing
Date”
shall
have the meaning assigned to it in the Securities Purchase Agreement.
(b) “Effectiveness
Deadline”
means,
(i) with respect to the initial Registration Statement the 120th calendar day
following the Closing Date, and (ii) with respect to any subsequent Registration
Statement filed hereunder the date that is 90 calendar days following the filing
of such Registration Statement, provided, however, in the event the Company
is
notified by the U.S. Securities and Exchange Commission (“SEC”)
that
one of the above Registration Statements will not be reviewed or is no longer
subject to further review and comments, the Effectiveness Date as to such
Registration Statement shall be the fifth Trading Day following the date on
which the Company is so notified if such date precedes the dates required above.
In the event of delays in effectiveness resulting from the form of the
Convertible Debenture or the Warrants and evidenced by written comments from
the
SEC the Effectiveness Deadline as set forth shall be extended for such period
as
effectiveness shall not be declared, until terms of those documents are waived
by Buyer or revised by the parties to satisfy regulatory
requirements.
(c) “Filing
Deadline”
means,
with respect to the initial Registration Statement the 30th calendar day
following the Closing Date.
(d) “Person”
means
a
corporation, a limited liability company, an association, a partnership, an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
(e) “Prospectus”
means
the prospectus included in a 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 a 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.
(f) “Registrable
Securities”
means
all of (i) the Conversion Shares issuable upon conversion of the Convertible
Debentures, (ii) the Warrant Shares issued or issuable upon exercise of the
Warrants, (iii) the Commitment Shares, (iv) any additional shares issuable
in
connection with any anti-dilution provisions in the Warrants or the Convertible
Debentures (without giving effect to any limitations on exercise set forth
in
the Warrants or Convertible Debentures) and (v) any shares of Common Stock
issued or issuable with respect to the Conversion Shares, the Convertible
Debentures, the Warrant Shares, or the Warrants as a result of any stock split,
dividend or other distribution, recapitalization or similar event or otherwise,
without regard to any limitations on the conversion of the Convertible
Debentures or exercise of the Warrants.
(g) “Registration
Statement”
means
the initial registration statement required to be filed hereunder and any
additional registration statements contemplated by Section 3(c), including
(in
each case) the Prospectus, 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.
(h) “Initial
Required Registration Amount”
means
a
number of Registrable Securities equal, at the time of filing of the applicable
Registration Statement, to the aggregate number of shares of Common Stock
constituting the Warrant Shares, the Commitment Shares and all shares of Common
Stock issuable upon conversion of Convertible Debentures (notwithstanding any
conversion limitations set forth therein), subject to any cutback set forth
in
Section 3(c).
(i) “Rule
415”
means
Rule 415 promulgated by the SEC 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 SEC having substantially the same purpose and effect as such
Rule.
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2. REGISTRATION.
(a) In
accordance with the terms of this Agreement, the Company shall register the
resale of all the Registrable Securities on behalf of the Buyer during the
Registration Period (as described below). On or prior to the Filing Deadline,
the Company shall prepare and file with the SEC a Registration Statement on
Form
S-1 or SB-2 (or, if the Company is then eligible, on Form S-3) covering the
resale of the Initial Required Registration Amount of the Registrable
Securities. The Registration Statement shall contain the “Selling
Stockholders”
and
“Plan
of Distribution”
sections in substantially the form attached hereto as Exhibit
A
and
contain all the required disclosures set forth on Exhibit
B.
The
Company shall use its best efforts to have the initial Registration Statement,
and all subsequent Registration Statements declared effective by the SEC as
soon
as practicable, but in no event later than the applicable Effectiveness
Deadline. By 9:30 am on the date following the date of effectiveness, the
Company shall file with the SEC in accordance with Rule 424 under the 1933
Act
the final Prospectus to be used in connection with sales pursuant to such
Registration Statement. The Company shall cause a Registration Statement to
remain effective until all of the Registrable Securities covered thereby 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 (“Registration
Period”).
Prior
to the filing of the Registration Statement with the SEC, the Company shall
furnish a draft of the Registration Statement to the Buyers for their review
and
comment. The Buyers shall furnish comments on the Registration Statement to
the
Company within twenty-four (24) hours of the receipt thereof from the
Company.
(b) Failure
to File or Obtain Effectiveness of the Registration Statement.
If: (i)
a Registration Statement is not filed on or prior to its Filing Deadline (if
the
Company files a Registration Statement without affording the Holders the
opportunity to review and comment on the same as required by Section 3(a),
the
Company shall not be deemed to have satisfied this clause (i)), or (ii) the
Company fails to file with the SEC a request for acceleration in accordance
with
Rule 461 promulgated under the Securities Act, within five Trading Days of
the
date that the Company is notified (orally or in writing, whichever is earlier)
by the SEC that a Registration Statement will not be “reviewed,” or not subject
to further review, or (iii) a Registration Statement filed or required to be
filed hereunder is not declared effective by the SEC by its Effectiveness
Deadline, or (iv) after the effectiveness, a Registration Statement 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 otherwise not permitted
to utilize the Prospectus therein to resell such Registrable Securities for
more
than 30 consecutive calendar days or more than an aggregate of 40 calendar
days
during any 12-month period (which need not be consecutive calendar days) (any
such failure or breach being referred to as an “Event”),
then
in addition to any other rights the holders of the Convertible Debentures may
have hereunder or under applicable law, on each monthly anniversary of each
such
Event date (if the applicable Event shall not have been cured by such date)
until the applicable Event is cured, the Company shall pay to each holder of
Convertible Debentures an amount in cash or, at the option of the Company,
in
shares of Common Stock of the Company valued at the 10 day VWAP preceding the
due date for payment as partial liquidated damages (“Liquidated
Damages”)
and
not as a penalty, equal to the pro-rata portion of 1.0% of the aggregate
purchase price paid by such holder pursuant to the Securities Purchase Agreement
for any Convertible Debentures then held by such holder for which a registration
statement is then required to have been filed or declared effective. The parties
agree that (1) the Company shall not be liable for Liquidated Damages under
this
Agreement with respect to any Warrants or Warrant Shares and (2) the maximum
aggregate Liquidated Damages payable under this Agreement for all instances
in
which Liquidated Damages shall be payable, regardless of the cause, shall be
six
percent (6%) of the aggregate Purchase Price paid by such holder pursuant to
the
Securities Purchase Agreement. The partial Liquidated Damages pursuant to the
terms hereof shall apply on a daily pro-rata basis for any portion of a month
prior to the cure of an Event.
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(c) Liquidated
Damages.
The
Company and the Buyer hereto acknowledge and agree that the sums payable under
subsection 2(b) above shall constitute liquidated damages and not penalties
and
are in addition to all other rights of the Buyer, including the right to call
a
default. The parties further acknowledge that (i) the amount of loss or damages
likely to be incurred is incapable or is difficult to precisely estimate, (ii)
the amounts specified in such subsections bear a reasonable relationship to,
and
are not plainly or grossly disproportionate to, the probable loss likely to
be
incurred in connection with any failure by the Company to obtain or maintain
the
effectiveness of a Registration Statement, (iii) one of the reasons for the
Company and the Buyer reaching an agreement as to such amounts was the
uncertainty and cost of litigation regarding the question of actual damages,
and
(iv) the Company and the Buyer are sophisticated business parties and have
been
represented by sophisticated and able legal counsel and negotiated this
Agreement at arm’s length.
3. RELATED
OBLIGATIONS.
(a) The
Company shall, not less than three (3) Trading Days prior to the filing of
each
Registration Statement and not less than one (1) Trading Day prior to the filing
of any related amendments and supplements to all Registration Statements (except
for annual reports on Form 10-K or Form 10-KSB), provide an opportunity to
each
Buyer to be furnished with copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated
by
reference) will be subject to delivery to Buyer only upon the written request
by
Buyer, which shall in all events upon delivery be deemed to be receipt by Buyer
of confidential non-public information of Company, and for the sole purpose
of
the reasonable and prompt review of such Buyers. The Company shall not file
a
Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Buyers shall reasonably object in good faith; provided
that,
the Company is notified of such objection in writing no later than two (2)
Trading Days after the Buyers have been so furnished copies of a Registration
Statement, and upon such objection, all periods herein shall be extended by
five
(5) Business Days, but the Company may thereupon file such Registration
Statement if the Company deems such action appropriate in its sole
discretion.
4
(b) The
Company shall (i) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
Prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as
may
be necessary to keep such Registration Statement effective at all times during
the Registration Period, and prepare and file with the SEC such additional
Registration Statements in order to register for resale under the Securities
Act
all of the Registrable Securities provided that any further amount of shares
shall not be required to exceed the amount that the Company, upon the advice
of
counsel, determines shall not contravene any rules, regulation, interpretation
or positions (as stated in SEC comment letters or otherwise) shall determine
may
be registered at the time of filing such further Registration Statement); (ii)
cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement (subject to the terms of this Agreement), and as so
supplemented or amended to be filed pursuant to Rule 424; (iii) respond as
promptly as reasonably possible to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and as promptly
as
reasonably possible provide the Buyers an opportunity to obtain true and
complete copies of all correspondence from and to the SEC relating to a
Registration Statement (provided that the Company may excise any information
contained therein which would constitute material non-public information as
to
any Buyer which has not executed a confidentiality agreement with the Company);
and (iv) comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant
to
this Section 3(b)) by reason of the Company’s filing a report on Form 10-KSB,
Form 10-QSB or Form 8-K or any analogous report under the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”),
the
Company shall incorporate such report by reference into the Registration
Statement, if applicable, or shall file such amendments or supplements with
the
SEC within one business day of which the Exchange Act report is filed which
created the requirement for the Company to amend or supplement the Registration
Statement.
(c) Reduction
of Registrable Securities Included in a Registration Statement.
Notwithstanding anything contained herein, in the event that the SEC requires
the Company to reduce the number of shares of Common Stock registered for resale
by selling stockholders pursuant to registration statements filed by the Company
in order to allow the Company to rely on Rule 415 with respect to such
registration statements, then the Company shall be obligated to include in
such
registration statements (which may include the Registration Statement and/or
a
subsequent Registration Statement if the Company needs to withdraw or amend
the
initial Registration Statement and refile a new Registration Statement in order
to rely on Rule 415), in the aggregate, only such limited portion of the
Registrable Securities as constitutes the Pro Rata Share (as defined below)
of
the amount of securities the SEC shall permit or which the Company, in its
reasonable determination, determines should be included therein in order to
not
contravene any position stated by the SEC. Any Registrable Securities that
are
excluded in accordance with the foregoing terms are hereinafter referred to
as
“Cut
Back Securities.”
To
the
extent Cut Back Securities exist, on the later of (a) sixty (60) days after
the
last of the securities registered on the previous Registration Statement are
sold, or (b) six (6) months following the previous Registration Statement’s
effective date, or such other time as the Company reasonably determines that
registration of the Cut Back Securities may be permitted by the SEC, the Company
shall seek to register by the filing of a Registration Statement covering the
resale of the Cut Back Securities and shall use best efforts to cause such
Registration Statement to be declared effective as promptly as practicable
thereafter, provided, however, no liquidated damages, penalties, or rights
shall
inure to the benefit of Buyer under the Convertible Debenture, this Agreement
or
the Securities Purchase Agreement if such position of the SEC results in
withdrawal or abandonment of such effort to register such additional Cut Back
Securities. “Pro
Rata Share”
means,
at any time, the portion that the Registrable Securities held by Buyer
constitute of all securities that the Company is required or permitted to
register pursuant to this Agreement.
5
(d) The
Company shall furnish to each Buyer whose Registrable Securities are included
in
any Registration Statement, without charge, (i) at least one (1) copy of such
Registration Statement as declared effective by the SEC and any amendment(s)
thereto, including financial statements and schedules, all documents
incorporated therein by reference, all exhibits and each preliminary prospectus,
(ii) ten (10) copies of the final prospectus included in such Registration
Statement and all amendments and supplements thereto (or such other number
of
copies as such Buyer may reasonably request) and (iii) such other documents
as
such Buyer may reasonably request from time to time in order to facilitate
the
disposition of the Registrable Securities owned by such Buyer. The Company
may
satisfy the requirement of this Section 3(d) be electronic means available
to
the Buyer.
(e) The
Company shall use its best efforts to (i) register and qualify the Registrable
Securities covered by a Registration Statement under such other securities
or
“blue sky” laws of such jurisdictions in the United States as any Buyer
reasonably requests, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be
required in connection therewith or as a condition thereto to (w) make any
change to its articles of incorporation or by-laws, (x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify but
for
this Section 3(d), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify each Buyer who holds Registrable
Securities of the receipt by the Company of any notification with respect to
the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or “blue sky” laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
(f) As
promptly as practicable after becoming aware of such event or development,
the
Company shall notify each Buyer in writing of the happening of any event as
a
result of which the Prospectus included in a Registration Statement, as then
in
effect, includes an untrue statement of a material fact or omission to state
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (provided that in no event shall such notice contain any material,
nonpublic information), and promptly prepare a supplement or amendment to such
Registration Statement to correct such untrue statement or omission, and deliver
ten (10) copies of such supplement or amendment to each Buyer and prior thereto,
after receiving notice of such event the Buyer shall not make any sales pursuant
to such unamended or unsupplemented Registration Statement. The Company shall
also promptly notify each Buyer in writing (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and when
a
Registration Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to each Buyer by
facsimile on the same day of such effectiveness), (ii) of any request by the
SEC
for amendments or supplements to a Registration Statement or related prospectus
or related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
6
(g) The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction within the United States of America and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension
at
the earliest possible moment and to notify each Buyer who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(h) If,
after
the execution of this Agreement, a Buyer believes, and receives a written legal
opinion of its legal counsel reasonably acceptable to the Company that it would
be deemed to be an underwriter of Registrable Securities, at the request of
Buyer, the Company shall make available for inspection by (i) any Buyer and
(ii) one (1) firm of accountants or other agents retained by the Buyers
(collectively, the “Inspectors”)
all
pertinent financial and other records, and pertinent corporate documents and
properties of the Company (collectively, the “Records”),
as
shall be reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree,
and
each Buyer hereby agrees, to hold in strict confidence and shall not make any
disclosure (except to a Buyer) or use any Record or other information which
the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (a) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the Securities Act, (b) the release
of
such Records is ordered pursuant to a final, non-appealable subpoena or order
from a court or government body of competent jurisdiction, or (c) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement of which
the Inspector and the Buyer has knowledge. Each Buyer agrees that it shall,
upon
learning that disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential.
(i) The
Company shall hold in confidence and not make any disclosure of information
concerning a Buyer provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to
the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure
of
such information concerning a Buyer is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt written
notice to such Buyer and allow such Buyer, at the Buyer’s expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
7
(j) The
Company shall use its best efforts either to cause all the Required Registration
Amount of Registrable Securities covered by a Registration Statement (i) to
be
listed on each securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange or
(ii) the inclusion for quotation on the National Association of Securities
Dealers, Inc. OTC Bulletin Board for such Registrable Securities. The Company
shall pay all fees and expenses in connection with satisfying its obligation
under this Section 3(j).
(k) The
Company shall cooperate with each Buyer who holds Registrable Securities being
registered and, to the extent applicable, to satisfy the requirement for DTC
delivery or to facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legend) representing the Registrable Securities
to
be sold pursuant to a Registration Statement and enable such certificates to
be
in such denominations or amounts, as the case may be, as the Buyers may
reasonably request and registered in such names as the Buyers may
request.
(l) The
Company shall use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved
by
such other governmental agencies or authorities as may be necessary to
consummate the disposition of such Registrable Securities.
(m) The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of
Rule 158 under the Securities Act) covering a twelve (12) month period beginning
not later than the first day of the Company’s fiscal quarter next following the
effective date of the Registration Statement.
(n) The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
(o) Within
two (2) business days after a Registration Statement which covers Registrable
Securities is declared effective by the SEC, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent
for
such Registrable Securities (with copies to the Buyer whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC in the form
attached hereto as Exhibit
C.
(p) The
Company shall take all other reasonable actions upon the written request of
Buyer reasonably necessary to expedite and facilitate disposition by each Buyer
of Registrable Securities pursuant to a Registration Statement.
4. OBLIGATIONS
OF THE BUYERS.
(a) Each
Buyer agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 3(f) such Buyer will immediately
discontinue disposition of Registrable Securities pursuant to any Registration
Statement covering such Registrable Securities until such Buyer’s receipt of the
copies of the supplemented or amended prospectus contemplated by Section 3(f)
or
receipt of notice that no supplement or amendment is required. Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended certificates for shares of Common Stock to a transferee of a Buyer
in
accordance with the terms of the Securities Purchase Agreement in connection
with any sale of Registrable Securities with respect to which a Buyer has
entered into a contract for sale prior to the Buyer’s receipt of a notice from
the Company of the happening of any event of the kind described in Section
3(f)
or the first sentence of 3(e) and for which the Buyer has not yet
settled.
8
(b) Each
Buyer covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it or an exemption therefrom
in connection with sales of Registrable
Securities pursuant to the Registration Statement.
5. EXPENSES
OF REGISTRATION.
All
expenses incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration,
listing and qualifications fees, printers, legal and accounting fees shall
be
paid by the Company, other than counsel for the Buyer or the cost of accountants
acting on behalf of the Buyer.
6. INDEMNIFICATION.
With
respect to Registrable Securities which are included in a Registration Statement
under this Agreement:
(a) To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Buyer, the directors, officers, partners,
employees, agents, representatives of, and each Person, if any, who controls
any
Buyer within the meaning of the Securities Act or the Exchange Act (each, an
“Indemnified
Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several (collectively, “Claims”)
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto (“Indemnified
Damages”),
to
which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon: (i) any untrue statement or alleged untrue statement of
a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other “blue sky” laws of any jurisdiction in
which Registrable Securities are offered (“Blue
Sky Filing”),
or
the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any
final prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading; or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any other law, including, without
limitation, any state securities law, or any rule or regulation there under
relating to the offer or sale of the Registrable Securities pursuant to a
Registration Statement (the matters in the foregoing clauses (i) through (iii)
being, collectively, “Violations”).
The
Company shall reimburse the Buyers and each such controlling person promptly
as
such expenses are incurred and are due and payable, for reasonable legal fees
or
disbursements or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (x) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (y) shall not
be
available to the extent such Claim is based on a failure of the Buyer to deliver
or to cause to be delivered the prospectus made available by the Company or
other breach by Buyer of the terms of this Agreement, and if such prospectus
was
timely made available by the Company pursuant to Section 3(c); and
(z) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall remain in
full
force and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable Securities
by the Buyers pursuant to Section 9 hereof.
9
(b) In
connection with a Registration Statement, each Buyer agrees to severally and
not
jointly indemnify, hold harmless and defend, to the same extent and in the
same
manner as is set forth in Section 6(a), the Company, each of its directors,
officers, partners, employees, agents, representatives of, and each Person,
if
any, who controls any the Company within the meaning of the Securities Act
or
the Exchange Act, (each an “Indemnified
Party”),
against any Claim or Indemnified Damages to which any of them may become
subject, under the Securities Act, the Exchange Act or otherwise, insofar as
such Claim or Indemnified Damages arise out of or is based upon any Violation,
in each case to the extent, and only to the extent, that such Violation occurs
in reliance upon and in conformity with written information furnished to the
Company by such Buyer expressly for use in connection with such Registration
Statement or omitted to be communicated to Buyer expressly for use in connection
with such Registration Statement; and, subject to Section 6(d), such Buyer
will
reimburse any reasonable legal or other expenses reasonably incurred by them
in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior
written consent of such Buyer, which consent shall not be unreasonably withheld;
provided, further, however, that the Buyer shall be liable under this Section
6(b) for only that amount of a Claim or Indemnified Damages as does not exceed
the net proceeds to such Buyer as a result of the sale of Registrable
Securities. Such indemnity shall remain in full force and effect regardless
of
any investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Buyers pursuant to
Section 9. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(b) with respect to any
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the prospectus was corrected
and such new prospectus was delivered to each Buyer prior to such Buyer’s use of
the prospectus to which the Claim relates.
10
(c) Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses of
not
more than one (1) counsel for such Indemnified Person or Indemnified Party
to be
paid by the indemnifying party, if, in the reasonable written opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or claim.
The indemnifying party shall keep the Indemnified Party or Indemnified Person
fully apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for
any
settlement of any action, claim or proceeding effected without its prior written
consent; provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without
the prior written consent of the Indemnified Party or Indemnified Person,
consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving
by
the claimant or plaintiff to such Indemnified Party or Indemnified Person of
a
release from all liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person with
respect to all third parties, firms or corporations relating to the matter
for
which indemnification has been made. The failure to deliver written notice
to
the indemnifying party within a reasonable time of the commencement of any
such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in its ability to defend such
action.
(d) The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as and
when bills are received or Indemnified Damages are incurred.
(e) The
indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
11
7. CONTRIBUTION.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no seller of
Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by
such seller from the sale of such Registrable Securities.
8. REPORTS
UNDER THE EXCHANGE ACT.
With
a
view to making available to the Buyers the benefits of Rule 144 promulgated
under the Securities Act or any similar rule or regulation of the SEC that
may
at any time permit the Buyers to sell securities of the Company to the public
without registration (“Rule
144”)
the
Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company
remains subject to such requirements (it being understood that nothing herein
shall limit the Company’s obligations under Section 4(c) of the Securities
Purchase Agreement) and the filing of such reports and other documents as are
required by the applicable provisions of Rule 144; and
(c) furnish
to each Buyer so long as such Buyer owns Registrable Securities, promptly upon
request, (i) a written statement by the Company that it has complied with the
reporting requirements of Rule 144, the Securities Act and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and
such other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested to permit the Buyers to sell such
securities pursuant to Rule 144 without registration.
9. AMENDMENT
OF REGISTRATION RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Buyers who
then
hold at least fifty-one (51%) percent of the outstanding aggregate principal
amount of Convertible Debentures then outstanding. Any amendment or waiver
effected in accordance with this Section 9 shall be binding upon each Buyer
and the Company. No such amendment shall be effective to the extent that it
applies to fewer than all of the holders of the Registrable Securities. No
consideration shall be offered or paid to any Person to amend or consent to
a
waiver or modification of any provision of any of this Agreement unless the
same
consideration also is offered to all of the parties to this
Agreement.
12
10. MISCELLANEOUS.
(a) A
Person
is deemed to be a holder of Registrable Securities whenever such Person owns
or
is deemed to own of record such Registrable Securities or owns the right to
receive the Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two (2) or more Persons with respect
to
the same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) No
Piggyback on Registrations.
Except
as set forth on Schedule
10(b.i)
attached
hereto, neither the Company nor any of its security holders (other than the
Buyers in such capacity pursuant hereto) may include securities of the Company
in the initial Registration Statement other than the Initial Required
Registration Amount of Registrable Securities. The Company shall not file any
other registration statements until the initial Registration Statement required
hereunder is declared effective by the SEC, provided that this Section 10(b)
shall not prohibit the Company from: (i) filing amendments to registration
statements already filed, or filing any registration statement on Form S-8
or
S-4, or successor forms thereto; (ii) filing registration statements which
are
required under that certain Registration Rights Agreement entered by and between
the Company and eBaums’s World Inc. (“EBW”) entered pursuant to the Asset
Purchase Agreement dated as of August 1, 2007 by and between the Company, EBW
and EBW Acquisition, Inc; (iii) filing registration statements which are
required under any registration rights agreement entered into in connection
with
the Company’s issuance of up to $2,224,290.41 aggregate principal amount of
Junior Secured Convertible Debentures and related warrants issued in exchange
for $1,400,000 cash and $824,290.41 aggregate principal and interest outstanding
on 8% notes due 2008 (“2008 Notes”) of the Company to the various purchasers
identified on Schedule
10(b.ii);
(iv)
filing registration statements for the resale of shares of Common Stock issuable
pursuant to Junior Secured Convertible Debentures and related warrants issued
in
exchange for up to $1.425 million aggregate principal amount of 2008 Notes
pursuant to an Additional Securities Purchase Agreement dated as of October
31,
2007, among the Company and the Buyers identified therein (the “Additional
Securities Purchase Agreement”); and (v) filing registration statements for the
resale of shares of Common Stock solely by Xxxx Xxxx, Xxxx Xxxxxx and/or Xxxx
Xxxxxx with respect to shares issuable pursuant to up to $3.5 million aggregate
principal amount of Junior Secured Convertible Debentures and related warrants
issued pursuant to an Additional Securities Purchase Agreement.
(c) Piggy-Back
Registrations.
If at
any time there has not been filed when required an initial Registration
Statement or other registration statement for Registrable Securities or
following the Effectiveness Deadline for such Registrable Securities there
is
not an effective Registration Statement covering the Registrable Securities
required to be filed (taking into account and Cut Back Securities not required
to be registered) and the Company shall determine to prepare and file with
the
SEC a registration statement relating to an offering for its own account or
the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with the stock option or other employee
benefit plans, then the Company shall send to each Buyer a written notice of
such determination and, if within fifteen (15) days after the date of such
notice, any such Buyer shall so request in writing, the Company shall include
in
such registration statement all or any part of such Registrable Securities
such
Buyer requests to be registered; provided,
however,
that,
the Company shall not be required to register any Registrable Securities
pursuant to this Section 10(c) that are eligible for resale pursuant to Rule
144(k) promulgated under the Securities Act or that are the subject of a then
effective Registration Statement.
13
(d) Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one (1) business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
|
If
to the Company, to:
|
Handheld
Entertainment, Inc.
|
|
000
Xxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxx
Xxxxxxxxx, XX 00000
|
|
|
Attention:
Xxxxxxx Oscodar
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
With
Copy to:
|
Xxxxxx
and Xxxxx, LLP
|
|
000
Xxxx 00xx
Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Attention:
Xxxxxx X. Xxxxxx, Esq.
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
If
to an
Buyer, to its address and facsimile number on the Schedule of Buyers attached
hereto, with copies to such Buyer’s representatives as set forth on the Schedule
of Buyers or to such other address and/or facsimile number and/or to the
attention of such other person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change. Written confirmation of receipt (A) given by the recipient of
such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a courier or overnight courier service shall
be
rebuttable evidence of personal service, receipt by facsimile or receipt from
a
nationally recognized overnight delivery service in accordance with clause
(i),
(ii) or (iii) above, respectively.
(e) 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.
14
(f) This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York without regard to the principles of conflict of laws.
The
parties further agree that any action between them shall be heard in Xxxxxx
County, New Jersey, and expressly consent to the jurisdiction and venue of
the
Superior Court of New Jersey, sitting in Xxxxxx County and the United States
District Court for the District of New Jersey sitting in Newark, New Jersey
for
the adjudication of any civil action asserted pursuant to this Paragraph. Each
party hereby irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address for such notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit
in
any way any right to serve process in any manner permitted by law. If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(g) This
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(h) The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(i) This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same agreement.
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.
(j) Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(k) The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
(l) This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
15
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
16
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their signature page to this Registration
Rights Agreement to be duly executed as of the date first above
written.
|
COMPANY:
HANDHELD
ENTERTAINMENT, INC.
|
||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxx | |
|
Name: Xxxxxxx
X. Xxxx
|
||
|
Title: Chief
Financial Officer
|
||
17
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their signature page to this Registration
Rights Agreement to be duly executed as of the date first above
written.
|
BUYER:
YA
GLOBAL INVESTMENTS, L.P.
|
||
| |
|
|
| By: | Yorkville Advisors, LLC | |
| Its: |
Investment
Manager
|
|
| |
|
|
| By: | /s/ Xxxx Xxxxxx | |
|
Name: Xxxx
Xxxxxx
|
||
|
Title: Portfolio
Manager
|
||
18
