REGISTRATION RIGHTS AGREEMENT
Exhibit
10.6
This
Registration Rights Agreement (this “Agreement”) is made and entered into
as of August 7, 2007, by and between eMagin Corporation, a Delaware corporation
(the “Company”), and Moriah Capital, L.P. (the
“Lender”).
This
Agreement is made pursuant to the Securities Issuance Agreement, dated as
of the
date hereof, by and between the Lender and the Company (as amended, modified
or
supplemented from time to time, the “Securities Issuance Agreement”), and
pursuant to the Loan and Security Agreement (the “Loan Agreement”)
referred to therein.
The
Company and the Lender hereby agree as follows:
1. Definitions.
Capitalized terms used and not
otherwise defined herein that are defined in the Securities Issuance Agreement,
shall have the meanings given such terms in the Securities Issuance Agreement.
Capitalized terms not defined herein or in the Securities Issuance Agreement
shall have the meaning set forth in the Loan Agreement. As used in this
Agreement, the following terms shall have the following
meanings:
“Commission”
means the Securities and Exchange Commission.
“Common
Stock” means shares of the Company’s common stock, par value $0.001 per
share.
“Effectiveness
Date” means, with respect to the Registration Statement required to be filed
hereunder, a date no later than one hundred and twenty (120) days following
the
date hereof.
“Effectiveness
Period” shall have the meaning set forth in Section
2(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and any
successor statute.
“Filing
Date” means with respect to the Registration Statement required to be filed
hereunder, a date no later than thirty (30) days following the date
hereof.
“Holder”
or “Holders” means the Lender or any of its affiliates or transferees to
the extent any of them hold Registrable Securities.
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section
5(c).
“Note”
shall have the meaning set forth in the Securities Issuance
Agreement.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means the prospectus included in the 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 the Registration Statement,
and
all 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.
“Registrable
Securities” means the shares of Common Stock (i) issued to the Lender
pursuant to the Stock Issuance Agreement (including shares to
be issued to the Lender on the date hereof and shares to be issued to the
Lender
upon an extension of the original term of the Loan Agreement, if so extended),
and (ii) issuable upon the conversion of the Note.
“Registration
Statement” means each registration statement required to be filed hereunder,
including 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.
“Rule
144” means Rule 144 promulgated by the Commission 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 Commission having substantially the same
effect as such Rule.
“Rule
415” means Rule 415 promulgated by the Commission 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 Commission having substantially the same
effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended, and any successor
statute.
“Securities
Issuance Agreement” shall have the meaning provided above.
“Trading
Market” means any of the OTC Bulletin Board, NASDAQ Capital Market, the
Nasdaq National Market, the American Stock Exchange or the New York Stock
Exchange.
2. Registration.
(a) On
or prior to the applicable Filing
Date, the Company shall prepare and file with the Commission a Registration
Statement covering the Registrable Securities for an offering to be made
on a
continuous basis pursuant to Rule 415. The Company shall use good faith efforts
to include the Registrable Securities in the Company’s Registration Statement on
Form S-1 as filed with the Commission on July 25, 2007. If such inclusion
is not
permitted by the selling security holders thereunder, or is otherwise
impractical, then the Registrable Securities shall be included in the Company’s
next succeeding registration statement. The Registration Statement shall
be on
Form S-1 or SB-2. The Company shall cause such Registration Statement to
become
effective and remain effective as provided herein. The Company shall use
its
reasonable commercial efforts to cause such Registration Statement to be
declared effective under the Securities Act as promptly as possible after
the
filing thereof,
but
in any event
no later than the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep such Registration Statement continuously effective
under the Securities Act until the date which is the earlier date of when
(i)
all Registrable Securities have been sold or (ii) all Registrable Securities
may
be sold immediately without registration under the Securities Act and without
volume restrictions pursuant to Rule 144(k), as determined by the counsel
to the
Company pursuant to a written
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opinion
letter to such effect, addressed and acceptable to the Company’s transfer agent
and the affected Holders (the “Effectiveness Period”). Notwithstanding
anything contained herein to the contrary, in the event that the Commission
limits the amount of Registrable Securities that may be sold by selling security
holders in a particular Registration Statement, or the Commission takes the
position that the all or a portion of the Registrable Securities cannot be
registered, the Company may exclude from such registration statement the
minimum
number of Registrable Securities on behalf of the Lender as is necessary
to
comply with such limitation by the Commission. In such event the Company
shall
give the Lender prompt notice of the number of the Registrable Securities
so
excluded. Further, and in addition to the foregoing, the Company will not
be liable for payment of any damages or penalties for any delay in registration
of the Registrable Securities in the event that such delay is due to the
fact
that the SEC has limited the amount of Registrable Securities that may be
included and sold by selling security holders in the Registration Statement
pursuant to Rule 415 promulgated under the 1933 Act or any other
basis.
(c) Within
3 business days of the
Effectiveness Date, the Company shall cause its counsel to issue a blanket
opinion in the form attached hereto as Exhibit A,
to the transfer agent stating that
the shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the Lender and
confirmation by the Lender that it has complied with the prospectus delivery
requirements, provided that the Company has not advised the transfer agent
orally or in writing that the opinion has been withdrawn. Copies of the blanket
opinion required by this Section 2(c)
shall be delivered to the Lender
within the time frame set forth above.
3. Registration
Procedures. If and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the
Company
will, as expeditiously as possible:
(a) prepare
and file with the Commission
the Registration Statement with respect to such Registrable Securities, respond
as promptly as possible to any comments received from the Commission, and
use
its best efforts to cause the Registration Statement to become and remain
effective for the Effectiveness Period with respect thereto, and promptly
provide to the Lender copies of all filings and correspondence relating
thereto;
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(b) prepare
and file with the Commission
such amendments and supplements to the Registration Statement and the Prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities covered by the Registration Statement and to keep such Registration
Statement effective until the expiration of the Effectiveness
Period;
(c) furnish
to the Lender such number of
copies of the Registration Statement and the Prospectus included therein
(including each preliminary Prospectus) as the Lender may reasonably request
to
facilitate the public sale or disposition of the Registrable Securities covered
by the Registration Statement;
(d) use
its commercially reasonable efforts
to register or qualify the Lender’s Registrable Securities covered by the
Registration Statement under the securities or “blue sky” laws of such
jurisdictions within the United States as the Lender may reasonably request,
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service
of
process in any such jurisdiction;
(e) list
the Registrable Securities covered
by the Registration Statement with any securities exchange/Trading Market
on
which the Common Stock of the Company is then listed;
(f) immediately
notify the Lender, at any
time when a Prospectus relating thereto is required to be delivered under
the
Securities Act, of the happening of any event of which the Company has
knowledge, or has reason to know, 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; and
(g) make
available for inspection by the
Lender and any attorney, accountant or other representative retained by the
Lender, all publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company’s officers, directors and employees to supply all publicly available,
non-confidential information reasonably requested by the attorney, accountant
or
representative of the Lender.
4. Registration
Expenses. All expenses
relating to the Company’s compliance with Sections 2 and
3 hereof, including,
without limitation,
all registration and filing fees, printing expenses, counsel fees and
disbursements and independent public accountants for the Company, fees and
expenses incurred in connection with complying with state securities or “blue
sky” laws, fees of any Trading Market, transfer taxes, fees of transfer agents
and registrars, fees of, and disbursements incurred by, one counsel for the
Holders to the extent such counsel is required due to Company’s failure to meet
any of its obligations hereunder, are called “Registration
Expenses.” All selling
commissions applicable to the sale of Registrable Securities, including,
without
limitation, any fees and disbursements of any special counsel to the Holders
beyond those included in Registration Expenses, are called “Selling Expenses.”
The
Company shall only be
responsible for all Registration Expenses.
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5. Indemnification.
(a) In
the event of a registration of any
Registrable Securities under the Securities Act pursuant to this Agreement,
the
Company will indemnify and hold harmless the Lender, and its officers,
directors, partners, managers and members and each other person or entity,
if
any, who controls the Lender within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which the
Lender, or such persons or entities may become subject under the Securities
Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
Proceedings in respect thereof) arising out of or are based upon any
Registration Statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon any document, information or material in
connection therewith, and will reimburse the Lender, and each such person
or
entity for any and all reasonable legal or other expenses incurred by them
in
connection with investigating or defending any such loss, claim, damage,
liability or proceedings; provided, however, that the Company will not be
liable
in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by or on behalf of the Lender or any such person or entity in writing
specifically for use in any such document.
(b) In
the event of a registration of the
Registrable Securities under the Securities Act pursuant to this Agreement,
the
Lender will indemnify and hold harmless the Company, and its officers, directors
and each other person, if any, who controls the Company within the meaning
of
the Securities Act, against all losses, claims, damages or liabilities, joint
or
several, to which the Company or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of any material fact which was
furnished in writing by the Lender to the Company expressly for use in (and
such
information is contained in) the Registration Statement under which such
Registrable Securities were registered under the Securities Act pursuant
to this
Agreement, any preliminary Prospectus or final Prospectus contained therein,
or
any amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
and
will reimburse the Company and each such person for any reasonable legal
or
other expenses incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action, provided, however, that
the
Lender will be liable in any such case if and only to the extent that any
such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so
made in
conformity with information furnished in writing to the Company by or on
behalf
of the Lender specifically for use in any such document. Notwithstanding
the
provisions of this paragraph, the Lender shall not be required to indemnify
any
person or entity in excess of the amount of the aggregate net proceeds received
by the Lender in respect of Registrable Securities in connection with any
such
registration under the Securities Act.
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(c) Promptly
after receipt by a party
entitled to claim indemnification hereunder (an “Indemnified Party”)
of notice of the commencement of any
Proceeding, such Indemnified Party shall, if a claim for indemnification
in
respect thereof is to be made against a party hereto obligated to indemnify
such
Indemnified Party (an “Indemnifying Party”),
notify the Indemnifying Party in
writing thereof, but the omission so to notify the Indemnifying Party shall
not
relieve it from any liability which it may have to such Indemnified Party
other
than under this Section and shall only relieve it from any liability which
it
may have to such Indemnified Party under this Section if and to the extent
the
Indemnifying Party is prejudiced by such omission. In case any such action
shall
be brought against any Indemnified Party and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake
the
defense thereof with counsel satisfactory to such Indemnified Party, and,
after
notice from the Indemnifying Party to such Indemnified Party of its election
so
to assume and undertake the defense thereof, the Indemnifying Party shall
not be
liable to such Indemnified Party under this Section for any legal expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof; if the Indemnified Party retains its own counsel, then the Indemnified
Party shall pay all reasonable fees, costs and expenses of such counsel,
provided, however, that, if the defendants in any such action include both
the
Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be reasonable defenses available
to it
which are different from or additional to those available to the Indemnifying
Party or if the interests of the Indemnified Party reasonably may be deemed
to
conflict with the interests of the Indemnifying Party, the Indemnified Party
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with
the
reasonable expenses and fees of such separate counsel and other expenses
related
to such participation to be reimbursed by the Indemnifying Party as
incurred.
(d) In
order to provide for just and
equitable contribution in the event of joint liability under the Securities
Act
in any case in which either (i) the Lender, or any officer, director, partner,
member, manager or controlling person or entity of the Lender, makes a claim
for
indemnification pursuant to this Section but it is judicially determined
(by the
entry of a final judgment or decree by a court of competent jurisdiction
and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the
fact
that this Section provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of the
Lender
or such officer, director, partner, member, manager or controlling person
or
entity of the Lender in circumstances for which indemnification is provided
under this Section; then, and in each such case, the Company and the Lender
will
contribute to the aggregate losses, claims, damages or liabilities to which
they
may be subject (after contribution from others) in such proportion so that
the
Lender is responsible only for the portion represented by the percentage
that
the public offering price of its securities offered by the Registration
Statement bears to the public offering price of all securities offered by
such
Registration Statement, provided, however, that, in any such case, (A) the
Lender will not be required to contribute any amount in excess of the public
offering price of all such securities offered by it pursuant to such
Registration Statement and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of
such
fraudulent misrepresentation.
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6. Representations
and
Warranties.
(a) The
Common Stock is registered pursuant
to Section 12(b) or 12(g) of the Exchange Act and, except with respect to
certain matters which the Company has disclosed to the Loan Agreement or
the
Securities Issuance Agreement, the Company has timely filed all proxy
statements, reports, schedules, forms, statements and other documents required
to be filed by it under the Exchange Act. Each Financial Statement was, at
the
time of its filing, in compliance with the requirements of its respective
form
and none of the Financial Statements, nor the financial statements (and the
notes thereto) included in the Financial Statements, as of their respective
filing dates, contained any untrue statement of a material fact or omitted
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. The financial statements of the Company included in the
Financial Statements comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect thereto.
Such
financial statements have been prepared in accordance with U.S. generally
accepted accounting principles (“GAAP”)
applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed)
and fairly present in all material respects the financial condition, the
results
of operations and the cash flows of the Company and its subsidiaries, on
a
consolidated basis, as of, and for, the periods presented in each such Financial
Statements.
(b) The
Common Stock is listed for trading
on the OTC Bulletin Board and
satisfies all requirements for the
continuation of such listing. The Company has not received any notice that
its
Common Stock will be delisted from the OTC Bulletin Board (except for prior
notices which have been fully remedied) or that the Common Stock does not
meet
all requirements for the continuation of such listing.
(c) Neither
the Company, nor any of its
affiliates, nor any person or entity acting on its or their behalf, has directly
or indirectly made any offers or sales of any security or solicited any offers
to buy any security under circumstances that would cause the offering of
the
Securities pursuant to the Securities Issuance Agreement and the Loan Documents
to be integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from selling the Common Stock
pursuant to Rule 506 under the Securities Act, or any applicable
exchange-related stockholder approval provisions, nor will the Company or
any of
its affiliates take any action or steps that would cause the offering of
such
Securities to be integrated with other offerings.
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(d) The
Notes and the shares of Common
Stock which the Lender may acquire pursuant to the Notes are all restricted
securities under the Securities Act as of the date of this Agreement. The
Company will not issue any stop transfer order or other order impeding the
sale
and delivery of any of the Registrable Securities at such time as such
Registrable Securities are registered for public sale or an exemption from
registration is available, except as required by federal or state securities
laws.
(e) The
Company understands the nature of
the Registrable Securities issuable upon the conversion of the Notes and
recognizes that the issuance of such Registrable Securities may have a potential
dilutive effect. The Company specifically acknowledges that its obligation
to
issue the Registrable Securities is binding upon the Company and enforceable
regardless of the dilution such issuance may have on the ownership interests
of
other shareholders of the Company.
(f) Except
for agreements made in the
ordinary course of business, there is no agreement that has not been filed
with
the Commission as an exhibit to a registration statement or to a form required
to be filed by the Company under the Exchange Act, the breach of which could
reasonably be expected to have a material and adverse effect on the Company
or
subsidiaries, or would prohibit or otherwise interfere with the ability of
the
Company to enter into and perform any of its obligations under this Agreement
in
any material respect.
(g) The
Company will at all times have
authorized and reserved a sufficient number of shares of Common Stock for
the
full conversion of the Notes.
7. Miscellaneous.
(a) Remedies.
In the event of a breach by the
Company of any of its obligations under this Agreement, each Holder will
be
entitled to specific performance of its rights under this
Agreement.
(b)
Existing Registration
Rights. Except as and
to the extent specified in Schedule 7(b)
hereto, the Company has not previously
entered into any agreement granting any registration rights with respect
to any
of its securities to any Person that have not been fully
satisfied.
(c) Compliance.
Each Holder covenants and agrees that
it will comply with the prospectus delivery requirements of the Securities
Act
as applicable to it in connection with sales of Registrable Securities pursuant
to the Registration Statement.
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(d) Discontinued
Disposition. Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of a Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the
“Advice”)
by the Company that the use of the
applicable Prospectus may be resumed, and, in either case, has received copies
of any additional or supplemental filings that are incorporated or deemed
to be
incorporated by reference in such Prospectus or Registration Statement. The
Company may provide appropriate stop orders to enforce the provisions of
this
paragraph. For purposes of this Section, a “Discontinuation
Event” shall mean (i)
when the Commission notifies the Company whether there will be a “review” of
such Registration Statement and whenever the Commission comments in writing
on
such Registration Statement (the Company shall provide true and complete
copies
thereof and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Governmental Authority for amendments
or
supplements to such Registration Statement or Prospectus or for additional
information; (iii) the issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement covering any or all of the
Registrable Securities or the initiation of any Proceedings for that purpose;
(iv) the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of
the
Registrable Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and/or (v) the occurrence
of any
event or passage of time that makes the financial statements included in
such
Registration Statement ineligible for inclusion therein or any statement
made in
such Registration Statement or Prospectus or any document incorporated or
deemed
to be incorporated therein by reference untrue in any material respect or
that
requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or Prospectus,
as
the case may be, it will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances under which they
were
made, not misleading.
(e) Piggy-Back
Registrations. If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission 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 stock option or other employee benefit plans, then the Company
shall send to each Holder written notice of such determination and, if within
15
days after receipt of such notice, any such Holder shall so request in writing,
the Company shall use its best efforts to include in such registration statement
all or any part of such Registrable Securities such holder requests to be
registered to the extent the Company may do so without violating registration
rights of others which exist as of the date of this Agreement, subject to
customary underwriter cutbacks applicable to all holders of registration
rights
and subject to obtaining any required the consent of any selling stockholder(s)
to such inclusion under such registration statement.
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(f) Amendments
and
Waivers. The
provisions of this Agreement, including the provisions of this sentence,
may not
be amended, modified or supplemented unless the same shall be in writing
and
signed by the Company and the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart
from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of certain Holders and that does not directly or indirectly affect
the
rights of other Holders may be given by Holders of at least a majority of
the
Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended, modified,
or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(g) Notices.
Any notice or request hereunder may
be given to the Company or the Lender at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a change
of
address under this Section. Any notice or request hereunder shall be given
by
registered or certified mail, return receipt requested, hand delivery, overnight
mail, Federal Express or other national overnight next day carrier
(collectively, “Courier”).
Notices and requests shall be
deemed delivered upon receipt. The address for such notices and communications
shall be as follows:
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If
to the Company:
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00000
X.X. 0xx
Xxxxxx
Xxxxx
0000
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxx Xxxxxxx
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with
a copy to:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxxxx, Esq.
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If
to Lender:
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000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxxxxxxxxx
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with
a copy to:
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Xxxxx
Xxxxxx Xxxxxxxx & Xxxxxx LLP
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Xxxxxxxxx Xxxxxx
Xxxxx
0000
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxx Xxxxx, Esq.
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If
to any other Person who is then the registered Holder:
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To
the address of such Holder as it appears in the stock transfer
books of
the Company
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or
such
other address as may be designated in writing hereafter in accordance with
this
Section by such Person.
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(h) 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 and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to Persons as permitted under
the
Loan Documents.
(i) Execution
and
Counterparts. This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile or electronic transmission, such signature shall create
a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile or electronic signature were the original thereof.
(j) Governing
Law. All questions
concerning the
construction, validity, enforcement and interpretation of this Agreement
shall
be governed by and construed and enforced in accordance with the internal
laws
of the State of New York, without regard to the principles of conflicts of
law
thereof. Each party agrees that all Proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement
shall
be commenced exclusively in the state and federal courts sitting in the City
of
New York, Borough of Manhattan. Each party hereto hereby irrevocably submits
to
the exclusive jurisdiction of the state and federal courts sitting in the
City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to assert
in any
Proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such Proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such
party
at the address in effect for 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. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and
all right to trial by jury in any legal proceeding arising out of or relating
to
this Agreement or the transactions contemplated hereby. (k) Cumulative Remedies.
The remedies provided herein are
cumulative and not exclusive of any remedies provided by law or in
equity.
(l) 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 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 of reference only and shall not limit or otherwise affect
the
meaning hereof.
11
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
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EMAGIN
CORPORATION
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By:
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/s/ K.C.
Park
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Name:
K.C. Park
Title: Interim
CEO
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MORIAH
CAPITAL, L.P.
By:
Moriah Capital Management, L.P.,
General
Partner
By:
Moriah Capital Management, GP, LLC,
General
Partner
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By:
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/s/ Alexandre
Speaker
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Name:
Alexandre Speaker
Title:
General Partner
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12
EXHIBIT
A
[DATE]
[ADDRESS]
Attn:
[_________________]
As
counsel to eMagin Corporation, a Delaware corporation (the
“Company”), we have been requested to render our opinion to you in
connection with the resale by [____________] (the “Selling Stockholder”),
of an aggregate of [__________] shares (the “Shares”) of the Company’s
Common Stock.
A
Registration Statement on Form [___] under the Securities Act of 1933, as
amended (the “Act”), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on
[DATE]. Enclosed is the Prospectus dated [DATE]. We
understand that the Shares are to be offered and sold in the manner described
in
the Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholder at any time while
the registration statement remains effective, it is our opinion that the
Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholder
may
be issued without restrictive legend. We will advise you if the registration
statement is not available or effective at any point in the future.
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Very
truly yours,
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By:
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/s/
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[COMPANY
COUNSEL]
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13
