EXHIBIT 10.120
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of August
17, 2006, is by and between VYTERIS HOLDINGS (NEVADA), INC., a Nevada
corporation (the "COMPANY"), and XXXXXXX XXXXX SPECIALTY GROUP, LLC, a Delaware
limited liability company (the "INVESTOR").
The Company has agreed, on the terms and subject to the conditions set
forth in the Note Purchase Agreement, dated as of August 17, 2006 (the "NOTE
AGREEMENT"), to issue and sell to the Investor named therein the Note in the
form attached to the Note Agreement (the "NOTE").
The Note is convertible into shares (the "REGISTRABLE SHARES") of the
Company's common stock, par value $0.001 per share (the "COMMON STOCK") in
accordance with its terms.
In order to induce the Investor to enter into the Note Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and under applicable state
securities laws.
In consideration of the Investor entering into the Note Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Piggyback Registration Statement. If, at any time, the Company
proposes to file any registration statement on Form S-1 or such other
appropriate form in accordance with the Securities Act of 1933, as amended (the
"Securities Act") for purposes of a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary
offerings of securities of the Company, but excluding registration statements
relating to employee benefit plans or with respect to corporate reorganizations
or other transactions under Rule 145 of the Securities Act or initial public
offerings) it will give written notice by facsimile or mail, at least five (5)
days prior to the filing of each registration statement, to the Investor of its
intention to do so. If the Investor notifies the Company within five (5) days
after receipt of any such notice of its desire to include any such securities in
such proposed registration statement, the Company shall afford the Investor the
opportunity to have any Registrable Securities registered under such
registration statement.
2. Obligations of the Company. In connection with the filing of any
registration statement herein, the Company shall:
2.1 Prepare and file with the Securities and Exchange Commission (the
"SEC") such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
2.2 Furnish to the Investor such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
2.3 Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "blue sky"
laws of such jurisdictions as shall be reasonably requested by the Investor;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
2.4 Notify the Investor at any time when a prospectus relating thereto
is required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, 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 the light of the circumstances
then existing.
2.5 Use its best efforts to cause all Registrable Securities covered
by such registration statement to be listed on each securities exchange on which
similar securities listed by the Company are then listed.
3. Obligations of the Investor.
The Investor shall furnish to the Company such information regarding
the Investor, the number of Registrable Securities owned and proposed to be sold
by it, the intended method of disposition of such securities and any other
information as shall be required to effect the registration of the Investor's
Registrable Securities, and cooperate with the Company in preparing the
registration statement and in complying with the requirements of the Securities
Act.
4. Registration Expenses.
The Company shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of Registrable Securities,
including without limitation all registration, listing, filing and qualification
fees, printers and accounting fees, but excluding (i) underwriting discounts and
commissions relating to the Registrable Securities and (ii) legal fees and
disbursements of any and all counsel retained by the Investor.
5. Suspension of Effectiveness.
If the Company shall furnish to the Investor a certificate signed by
the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors of the Company, it is necessary to
suspend the effectiveness of any registration statement filed hereunder, the
Company shall have the right, exercisable two (2)
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times only in any consecutive twelve (12) month period, to suspend the
effectiveness of the registration statement with respect to such offering for a
period of not more than an aggregate of ninety (90) days per suspension.
6. Indemnification.
6.1 To the extent permitted by law, the Company will indemnify the
Investor, its members, directors, officers, shareholders, employees, agents and
affiliates, legal counsel for the Investor, and each person controlling the
Investor within the meaning of the Securities Act, with respect to which
registration, qualification or compliance of Registrable Securities has been
effected pursuant to this Agreement, against any losses, claims, damages,
liabilities or actions in respect thereof (collectively, "Damages"), arising out
of or based on any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement filed pursuant hereto, prospectus
offering circular or other document, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation or alleged violation by
the Company of the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any state securities laws or any rule or
regulation promulgated under such laws and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance; and the Company will pay each the Investor any legal and other
expenses reasonably incurred by them in connection with investigating or
defending any such claim, loss, damage, liability or action; provided, however,
that the indemnity contained in this Section 6.1 shall not apply to: (i) amounts
paid in settlement of any such Damages if settlement is effected without the
consent of the Company (which consent shall not unreasonably be withheld); (ii)
any such Damages arising out of or a based upon any untrue statement or omission
based upon information furnished to the Company by the Investor and stated to be
for use in connection with the offering of securities of the Company; or (iii)
any such Damages arising out of or based upon the Investor's failure to deliver
a copy of the registration statement or prospectus or any amendments or
supplements thereto.
6.2 To the extent permitted by law, the Investor will, if Registrable
Securities held by the Investor are included in the securities as to which such
registration, qualification or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors, officers, shareholders,
employees, agents and affiliates, each legal counsel and independent accountant
of the Company, each person who controls the Company within the meaning of the
Securities Act, and each other the Investor, each of its directors, officers,
shareholders, employees, agents and affiliates, legal counsel, and each person
controlling such other Purchaser within the meaning of the Securities Act,
against all Damages arising out of or based upon arising any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement filed pursuant hereto, prospectus offering circular or other document,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
any violation or alleged violation by the Investor of the Securities Act, the
Exchange Act, or any state securities laws or any rule or regulation promulgated
under such laws and relating to action or inaction required of the Investor in
connection with any such registration, qualification or compliance; and the
Investor will pay the Company or such other Investor any legal and other
expenses reasonably incurred by them in
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connection with investigating or defending any such claim, loss, damage,
liability or action, in each case, to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission is made in such registration statement, prospectus, offering circular
or other document in reliance on and in conformity with information furnished to
the Company by the Investor and stated to be for use in connection with the
offering of securities of the Company; provided, however, that the indemnity
contained in this Section 6.2 shall not apply to amounts paid in settlement of
any such Damages if settlement is effected without the consent of the Investor
(which consent shall not unreasonably be withheld).
6.3 Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action (including any governmental
action), such indemnified party will, 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 chooses, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain one separate counsel, with the reasonable fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 6, but the omission to
so deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 6.
6.4 If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such Damages in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such Damages as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
6.5 The obligations of the Company and the Investor under this Section
6 shall survive the completion of any offering of Registrable Securities
pursuant to a registration statement under this Agreement.
7. Notices.
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7.1 Any notice or communication required or permitted hereunder shall
be given in writing and shall be made by hand delivery, by confirmed facsimile,
by overnight courier or by registered or certified mail, addressed (i) if to the
Investor, to the Investor's address as set forth on Schedule A hereto, and (ii)
if to the Company, to Vyteris Holdings (Nevada), Inc., 00-00 Xxxxxxx Xxxxx, Xxxx
Xxxx, Xxx Xxxxxx 00000, Attention: Chief Executive Officer, Facsimile: (201)
796-6057 with a copy to Lownestein Sandler PC, 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX
00000, facsimile number (000) 000-0000, Attention: Xxxxx X. Xxxxxxxxx, Esq.
7.2 All such notices and other communications shall be deemed to have
been delivered and received (i) in the case of personal delivery or facsimile,
on the date of such delivery, (ii) in the case of overnight courier, on the
business day after the date when sent, and (iii) in the case of registered or
certified mail, on the third business day following such mailing.
8. Miscellaneous.
8.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the principles of the
conflict of laws thereof. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
New York located in New York County and any Federal court located within New
York County for any actions, suits or proceedings arising out of or relating to
this Agreement. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement in the courts of the State of New York located in New York
County or the courts of the United States of America located in New York County,
and hereby further irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such action, suit of proceeding brought in
any such court has been brought in an inconvenient forum.
8.2 Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Investor of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon the Investor of any Registrable Securities
then outstanding, each future Purchaser of all such Registrable Securities, and
the Company.
8.3 Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement, excepts as
expressly provided herein.
8.4 If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.5 The headings of the Sections of this Agreement are for convenience
and shall not by themselves determine the interpretation of this Agreement.
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8.6 This Agreement constitutes the entire contract among the Company
and the Investor relative to the subject matter hereof and supersedes in its
entirety any and all prior agreements, understandings and discussions with
respect thereto.
8.7 The Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXX XXXXX SPECIALTY GROUP, LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
VYTERIS HOLDINGS (NEVADA), INC.
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
Title: President & Chief Executive Officer
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