Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and entered
into as of March 3, 2014, between STEVIA CORP., a Nevada corporation (the
"COMPANY"), and NOMIS BAY LTD., a Bermuda company (the "Investor").
In connection with the Securities Purchase Agreement, dated as of March 3,
2014, entered into by the Company and the Investor (the "SECURITIES PURCHASE
AGREEMENT"), the Company has agreed, upon the terms and subject to the
conditions of the Securities Purchase Agreement, to issue and sell to the
Investor certain notes of the Company (the "NOTES"), which will, among other
things, be convertible into shares of the Company's common stock, $0.001 par
value per share (the "COMMON STOCK") to the Investor (as converted, the
"CONVERSION SHARES") in accordance with the terms of the Notes.
To induce the Investor to consummate the transactions contemplated by the
Securities Purchase Agreement, the Company has agreed to provide certain
registration rights under the 1933 Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"1933 ACT"), and applicable state securities laws.
The Company and the Investor hereby agrees as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein that are defined in the Securities Purchase Agreement shall have the
meanings given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"INITIAL REGISTRATION STATEMENT" means the initial Registration Statement
filed pursuant to this Agreement.
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"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 by the SEC pursuant to the 1933
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.
"EFFECTIVENESS DEADLINE" means, (i) with respect to the Initial
Registration Statement required to be filed hereunder, the earlier of (A) the
150th calendar day after the date of hereof in the event that such Registration
Statement is subject to a limited or full review by the SEC and (B) the fifth
Trading Day after the date the Company is notified (orally or in writing,
whichever is earlier) by the SEC that such Registration Statement will not be
reviewed or will not be subject to further review, and (ii) with respect to any
additional Registration Statements which may be required pursuant to Section 2,
the earlier of (A) the 90th calendar day following the date on which an
additional Registration Statement is required to be filed hereunder in the event
that such Registration Statement is subject to a limited or full review by the
SEC and (B) the fifth Trading Day after the date the Company is notified (orally
or in writing, whichever is earlier) by the SEC that such Registration Statement
will not be reviewed or will not be subject to further review.
"FILING DEADLINE" means, with respect to the Initial Registration Statement
required hereunder, the 45th calendar day following the date hereof and, with
respect to any additional Registration Statements which may be required pursuant
to Section 2, the earliest practical date on which the Company is permitted to
file such additional Registration Statement related to the Registrable
Securities (taking into account any Staff position with respect to date on which
the Staff will permit such additional Registration Statement to be filed with
the SEC).
"REGISTRABLE SECURITIES" means, as of any date of determination, (a) all
Conversion Shares then issuable upon conversion in full of the Notes (assuming
on such date the Notes are converted in full without regard to any conversion
limitations therein), and (b) any securities issued or then issuable upon any
stock split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing; provided, however, that any such Registrable
Securities shall cease to be Registrable Securities for so long as (x) a
Registration Statement with respect to the sale of such Registrable Securities
is declared effective by the SEC under the 1933 Act and such Registrable
Securities have been disposed of in accordance with such effective Registration
Statement, or (y) such Registrable Securities have been previously sold in
accordance with Rule 144.
"REGISTRATION STATEMENT" means any registration statement required to be
filed hereunder pursuant to Section 2, including (in each case) the Prospectus,
amendments and supplements to any 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
any such registration statement.
"RESTRICTION TERMINATION DATE" shall have the meaning set forth in Section
2.
"RULE 144" means Rule 144 promulgated by the SEC pursuant to the 1933 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 effect as such rule.
"RULE 415" means Rule 415 promulgated by the SEC pursuant to the 1933 Act,
as such Rule may be amended or interpreted 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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"SEC" means the United States Securities and Exchange Commission.
Section 2. Registration Statement Requirements. The Company shall prepare
and, as soon as practicable, but in no event later than the Filing Deadline,
file with the SEC the Initial Registration Statement on Form S-1, or such other
form reasonably acceptable to the Investor, covering the resale by the Investor
of 24,602,792 of the Registrable Securities. The Company shall use its
reasonable best efforts to have such Initial Registration Statement, and each
other Registration Statement required to be filed pursuant to the terms hereof,
declared effective by the SEC as soon as practicable, but in no event later than
the applicable Effectiveness Deadline. If at any time all Registrable Securities
are not covered by the Initial Registration Statement filed pursuant to this
Section 2, the Company shall file with the SEC one or more additional
Registration Statements so as to cover all of the Registrable Securities not
covered by the Initial Registration Statement, in each case, as soon as
practicable (taking into account any Staff position with respect to date on
which the Staff will permit such additional Registration Statement(s) to be
filed with the SEC), but in no event later than the applicable Filing Deadline
for such additional Registration Statement(s). If the staff of the SEC (the
"STAFF") or the SEC seeks to characterize any offering pursuant to a
Registration Statement filed pursuant to this Agreement as constituting an
offering of securities that does not permit such Registration Statement to
become effective and be used for resales by the Investor on a delayed or
continuous basis under Rule 415 at then-prevailing market prices (and not fixed
prices) (or as otherwise may be acceptable to the Investor), or if after the
filing of the Initial Registration Statement with the SEC pursuant to this
Section 2, the Company is otherwise required by the Staff or the SEC to reduce
the number of Registrable Securities included in such Initial Registration
Statement, then the Company shall reduce the number of Registrable Securities to
be included in such Initial Registration Statement (with the prior consent of
the Investor as to the specific Registrable Securities to be removed therefrom)
until such time as the Staff and the SEC shall so permit such Registration
Statement to become effective and be used as aforesaid. Notwithstanding anything
in this Agreement to the contrary, if after giving effect to the actions
referred to in the immediately preceding sentence, the Staff or the SEC does not
permit such Registration Statement to become effective and be used for resales
by the Investor on a delayed or continuous basis under Rule 415 at
then-prevailing market prices (and not fixed prices) (or as otherwise may be
acceptable to the Investor), the Company shall not request acceleration of the
effective date of such Registration Statement, the Company shall promptly (but
in no event later than 48 hours) request the withdrawal of such Registration
Statement pursuant to Rule 477 under the 1933 Act, and the Effectiveness
Deadline shall automatically be deemed to have elapsed with respect to such
Registration Statement at such time as the Staff or the SEC has made a final and
non-appealable determination that the SEC will not permit such Registration
Statement to be so utilized (unless prior to such time the Company and the
Investor have received assurances from the Staff or the SEC reasonably
acceptable to the Investor that a new Registration Statement filed by the
Company with the SEC promptly thereafter may be so utilized). In the event of
any reduction in Registrable Securities pursuant to this paragraph, the Company
shall file additional Registration Statements in accordance with this Section 2
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until such time as all Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus contained
therein is available for use by the Investor.
Section 3. Registration Procedures. If and whenever the Company is required
by the provisions of Section 2 to effect the registration of any Registrable
Securities under the 1933 Act, the Company will, as expeditiously as possible:
(a) subject to the timelines provided in this Agreement, prepare and file
the Registration Statement with the SEC, with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such
Registration Statement to become and remain effective for the period of the
distribution contemplated thereby (determined as herein provided), respond as
promptly as commercially practicable to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and file any
pre-effective amendments with respect to a Registration Statement as promptly as
reasonable possible, and promptly provide to Investors copies of all filings and
SEC letters of comment (provided that the Company shall excise any information
contained therein which would constitute material non-public information
regarding the Company or any subsidiary) and notify the Investors (by telecopier
or by e-mail addresses provided by the Investors) on or before the second
business day thereafter that the Company receives notice that (i) the SEC has no
comments or no further comments on the registration statement, and (ii) the
registration statement has been declared effective;
(b) 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 and prepare and file
with the SEC such additional Registration Statements as may be required
hereunder and to keep each additional Registration Statement effective;
(c) furnish to the Investors such number of copies of the Registration
Statement and the prospectus included therein (including each preliminary
prospectus) as such Investors reasonably may request in order to facilitate the
public sale or their disposition of the securities covered by such Registration
Statement or make them electronically available;
(d) use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by such Registration Statement under the
securities or "Blue Sky" laws of such jurisdictions as the Investors shall
request in writing, provided, however, that the Company shall not for any such
purpose be required to qualify to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to service of
process in any such jurisdiction;
(e) list the Registrable Securities covered by such Registration Statement
with the principal market or exchange on which the Common Stock is then listed;
(f) promptly notify the Investors of the Company's becoming aware that a
prospectus relating thereto is required to be delivered under the 1933 Act, of
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the happening of any event or passage of time of which the Company has knowledge
as a result of which the prospectus contained in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing or
the financial statements included therein ineligible for inclusion or which
becomes subject to a SEC, state or other governmental order suspending the
effectiveness of the Registration Statement covering any of the Registrable
Securities. Each Investor hereby covenants that it will not sell any Registrable
Securities pursuant to such prospectus during the period commencing at the time
at which the Company gives such Investor notice of the suspension of the use of
such prospectus in accordance with this Section 3(f) and ending at the time the
Company gives such Investor notice that such Investor may thereafter effect
sales pursuant to the prospectus, or until the Company delivers to such Investor
or files with the SEC an amended or supplemented prospectus.
(g) The Company shall cooperate with any broker-dealer through which an
Investor proposes to resell its Registrable Securities in effecting a filing
with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as
requested by any such Investor, and the Company shall pay the filing fee
required by such filing within two (2) business days of request therefor.
Section 4. Provision of Documents. It shall be a condition precedent to the
obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of the Investor that the
Investor shall furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it, as shall be reasonably required to effect and
maintain the effectiveness of the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the
Company may reasonably request.
Section 5. Expenses. All expenses incurred by the Company in complying with
Section 2, including, without limitation, all registration and filing fees,
printing expenses (if required), fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "Blue Sky" laws, fees of the Financial Industry Regulatory
Authority, Inc. ("FINRA") in connection with any filing with FINRA pursuant to
FINRA Rule 5110 that may be required to be made by any broker through which an
Investor intends to make sales of Registrable Securities, transfer taxes, and
fees of transfer agents and registrars, are called "REGISTRATION EXPENSES." The
Company will pay all Registration Expenses in connection with any Registration
Statement described in Section 2.
Section 6. Indemnification.
(a) In the event any Registrable Securities are included in any
Registration Statement under this Agreement, to the fullest extent permitted by
law, the Company will, and hereby does, indemnify, hold harmless and defend the
Investor, each of its directors, officers, shareholders, members, partners,
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employees, agents, advisors, representatives (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding the
lack of such title or any other title) and each Person, if any, who controls the
Investor within the meaning of the 1933 Act or the Securities Exchange Act of
1934 Act, as amended (the "1934 Act") and each of the directors, officers,
shareholders, members, partners, employees, agents, advisors, representatives
(and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding the lack of such title or any other title) of such
controlling Persons (each, an "INVESTOR PARTY" and collectively, the "INVESTOR
PARTIEs"), against any losses, obligations, claims, damages, liabilities,
contingencies, judgments, fines, penalties, charges, costs (including, without
limitation, court costs, reasonable attorneys' fees, costs of defense and
investigation), 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 Investor 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 or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus (as amended or supplemented) or in any prospectus supplement 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 (the matters in the foregoing
clauses (i) and (ii) being, collectively, "VIOLATIONS"). Subject to Section
6(c), the Company shall reimburse the Investor Parties, promptly as such
expenses are incurred and are due and payable, for any legal fees 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): (i) shall
not apply to a Claim by an Investor Party 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 Investor Party for such Investor
Party expressly for use in connection with the preparation of such Registration
Statement, prospectus or prospectus supplement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the Investor to the extent
such Claim is based on a failure of the Investor to deliver or to cause to be
delivered the prospectus (as amended or supplemented) made available by the
Company (to the extent applicable), including, without limitation, a corrected
prospectus, if such prospectus (as amended or supplemented) or corrected
prospectus was timely made available by the Company pursuant to Section 3 and
then only if, and to the extent that, following the receipt of the corrected
prospectus no grounds for such Claim would have existed; and (iii) 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 or delayed. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Investor
Party and shall survive the transfer of any of the Registrable Securities by the
Investor pursuant to Section 8(f).
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(b) In connection with any Registration Statement in which the Investor is
participating, the Investor 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, each of its officers who
signs the Registration Statement and each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (each, an "COMPANY
PARTY"), against any Claim or Indemnified Damages to which any of them may
become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim or Indemnified Damages arise out of or are 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 relating to the
Investor furnished to the Company by the Investor expressly for use in
connection with such Registration Statement; and, subject to Section 6(c) and
the below provisos in this Section 6(b), the Investor will reimburse a Company
Party any legal or other expenses reasonably incurred by such Company Party in
connection with investigating or defending any such Claim; provided, however,
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 the Investor, which consent shall not be unreasonably
withheld or delayed, provided further that the Investor 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 the Investor as a result of the applicable sale
of Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Company Party and shall survive the transfer of any
of the Registrable Securities by the Investor pursuant to Section 8(f).
(c) Promptly after receipt by an Investor Party or Company Party (as the
case may be) under this Section 6 of notice of the commencement of any action or
proceeding (including, without limitation, any governmental action or
proceeding) involving a Claim, such Investor Party or Company Party (as the case
may be) 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 Investor Party or the Company Party (as the case may
be); provided, however, an Investor Party or Company Party (as the case may be)
shall have the right to retain its own counsel with the fees and expenses of
such counsel to be paid by the indemnifying party if: (i) the indemnifying party
has agreed in writing to pay such fees and expenses; (ii) the indemnifying party
shall have failed promptly to assume the defense of such Claim and to employ
counsel reasonably satisfactory to such Investor Party or Company Party (as the
case may be) in any such Claim; or (iii) the named parties to any such Claim
(including, without limitation, any impleaded parties) include both such
Investor Party or Company Party (as the case may be) and the indemnifying party,
and such Investor Party or such Company Party (as the case may be) shall have
been advised by counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Investor Party or such Company Party and the
indemnifying party (in which case, if such Investor Party or such Company Party
(as the case may be) notifies the indemnifying party in writing that it elects
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to employ separate counsel at the expense of the indemnifying party, then the
indemnifying party shall not have the right to assume the defense thereof on
behalf of the indemnified party and such counsel shall be at the expense of the
indemnifying party, provided further that in the case of clause (iii) above the
indemnifying party shall not be responsible for the reasonable fees and expenses
of more than one (1) separate legal counsel for all Investor Parties or Company
Parties (as the case may be). The Company Party or Investor Party (as the case
may be) shall reasonably cooperate 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 Company Party or Investor Party (as the case may be) which
relates to such action or Claim. The indemnifying party shall keep the Company
Party or Investor Party (as the case may be) reasonably 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, the indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the prior written
consent of the Company Party or Investor Party (as the case may be), 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 Company Party or Investor Party (as the case may be) of a
release from all liability in respect to such Claim or litigation, and such
settlement shall not include any admission as to fault on the part of the
Company Party. For the avoidance of doubt, the immediately preceding sentence
shall apply to Sections 6(a) and 6(b) hereof. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Company Party or Investor Party (as the case may be) 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
Investor Party or Company Party (as the case may be) under this Section 6,
except to the extent that the indemnifying party is materially and adversely
prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities who is guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) in connection with such sale shall be entitled to indemnification from any
Person involved in such sale of Registrable Securities who is not guilty of
fraudulent misrepresentation.
(e) 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;
provided that the Investor shall promptly reimburse the Company for all such
payments to the extent a court of competent jurisdiction determines that any
Investor Party was not entitled to such payments.
(f) The indemnity and contribution agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Company Party or
Investor Party against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
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Section 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: (i) no contribution shall be made under circumstances
where the maker would not have been liable for indemnification under the fault
standards set forth in Section 6 of this Agreement, (ii) no Person involved in
the sale of Registrable Securities which Person is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (iii) contribution by any seller of Registrable
Securities shall be limited in amount to the amount of net proceeds received by
such seller from the applicable sale of such Registrable Securities pursuant to
such Registration Statement. Notwithstanding the provisions of this Section 7,
the Investor shall not be required to contribute, in the aggregate, any amount
in excess of the amount by which the net proceeds actually received by the
Investor from the applicable sale of the Registrable Securities subject to the
Claim exceeds the amount of any damages that the Investor has otherwise been
required to pay, or would otherwise be required to pay under Section 6(b), by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
Section 8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by the Investor of
any of their respective obligations under this Agreement, the Investor or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
shall be entitled to specific performance of its rights under this Agreement.
Each of the Company and the Investor agrees that monetary damages would not
provide adequate compensation for any losses incurred by reason of a breach by
it of any of the provisions of this Agreement and hereby further agrees that, in
the event of any action for specific performance in respect of such breach, it
shall not assert or shall waive the defense that a remedy at law would be
adequate.
(b) Compliance. The Investor covenants and agrees that it will comply with
the prospectus delivery requirements of the 1933 Act as applicable to it in
connection with sales of Registrable Securities pursuant to a Registration
Statement.
(c) Piggy-Back Registrations. If, at any time prior to the six month
anniversary of the date hereof, there is not an effective Registration Statement
covering all of the Registrable Securities 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 1933 Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under
the 0000 Xxx) 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 Company's stock option or
other employee benefit plans, then the Company shall deliver to the Investor a
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written notice of such determination and, if within fifteen days after the date
of the delivery of such notice, the Investor shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities the Investor requests to be registered; provided,
however, that the Company shall not be required to register any Registrable
Securities pursuant to this Section 8(c) that are the subject of a then
effective Registration Statement.
(d) Amendments and Waivers. No provision of this Agreement may be (i)
amended other than by a written instrument signed by both parties hereto or (ii)
waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought. 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.
(e) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be delivered as set forth
in the Securities Purchase Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties.
The Company may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of the Investor. The Investor may
assign its rights hereunder if: (i) the Investor agrees in writing with such
transferee or assignee (as the case may be) to assign all or any portion of such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such transfer or assignment (as the case may be); (ii) the
Company is, within a reasonable time after such transfer or assignment (as the
case may be), furnished with written notice of (a) the name and address of such
transferee or assignee (as the case may be), and (b) the securities with respect
to which such registration rights are being transferred or assigned (as the case
may be); (iii) immediately following such transfer or assignment (as the case
may be) the further disposition of such securities by such transferee or
assignee (as the case may be) is restricted under the 1933 Act or applicable
state securities laws if so required; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence such
transferee or assignee (as the case may be) agrees in writing with the Company
to be bound by all of the provisions contained herein; (v) such transfer or
assignment (as the case may be) shall have been made in accordance with the
applicable requirements of the Securities Purchase Agreement and the Notes; and
(vi) such transfer or assignment (as the case may be) shall have been conducted
in accordance with all applicable federal and state securities laws. The term
"Investor" in this Agreement shall also include all such transferees and
assignees.
(g) Execution and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a ".pdf" format
data file, such signature shall create a valid and binding obligation of the
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party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or ".pdf" signature page were an original
thereof.
(h) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Securities Purchase Agreement.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for convenience only, do
not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
STEVIA CORP.
By:
--------------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
NOMIS BAY LTD.
By:
--------------------------------------------
Name:
Title:
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