Exhibit 4.4
Registration Rights Agreement
This Registration Rights Agreement (the "Agreement") is made
and entered into as of the 30th day of June, 2003 (the
"Effective Date") between Innovo Group, Inc., a Delaware
corporation (the "Company"), and the parties set forth on the
signature page and Exhibit A hereto (each, a "Purchaser" and
collectively, the "Purchasers").
R e c i t a l s:
A. The Purchasers have purchased shares of the Company's
Common Stock (as defined below) pursuant to Subscription
Agreements (each, a "Subscription Agreement" and collectively,
the "Subscription Agreements") by and between the Company and
each Purchaser.
B. The Company has issued a warrant (the "Warrant") to
purchase 300,000 shares of the Company's Common Stock to Xxxxxxx
Xxxxxx Xxxxxx Inc., a Texas corporation ("SMH").
C. The Company, the Purchasers, and SMH desire to set
forth the registration rights to be granted by the Company to the
Purchasers and SMH.
Now, Therefore, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth
herein and in the Subscription Agreements, the parties mutually
agree as follows:
A g r e e m e n t:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Approved Market" means the Nasdaq National Market, the New
York Stock Exchange, Inc., or the American Stock Exchange, Inc.
"Business Day" means any day of the year, other than a
Saturday, Sunday, or other day on which the Commission is
required or authorized to close.
"Certificate of Incorporation" means the Fifth Amended and
Restated Certificate of Incorporation of the Company as filed
with the Secretary of State of the State of Delaware, as the same
may be amended from time to time.
"Closing Date" means June 30, 2003, or such other time as is
mutually agreed between the Company and the Purchasers for the
closing of the sale referred to in Recital A above.
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities
Act.
"Common Stock" means the common stock, par value $0.10 per
share, of the Company and any and all shares of capital stock or
other equity securities of: (i) the Company which are added to or
exchanged or substituted for the Common Stock by reason of the
declaration of any stock dividend or stock split, the issuance of
any distribution or the reclassification, readjustment,
recapitalization or other such modification of the capital
structure of the Company; and (ii) any other corporation, now or
hereafter organized under the laws of any state or other
governmental authority, with which the Company is merged, which
results from any consolidation or reorganization to which the
Company is a party, or to which is sold all or substantially all
of the shares or assets of the Company, if immediately after such
merger, consolidation, reorganization or sale, the Company or the
stockholders of the Company own equity securities having in the
aggregate more than 50% of the total voting power of such other
corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"Family Member" means (a) with respect to any individual,
such individual's spouse, any descendants (whether natural or
adopted), any trust all of the beneficial interests of which are
owned by any of such individuals or by any of such individuals
together with any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or
limited liability company all of the equity interests of which
are owned by those above described individuals, trusts or
organizations and (b) with respect to any trust, the owners of
the beneficial interests of such trust.
"Form S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the
Securities Act subsequently adopted by the Commission, which
permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the
Commission.
"Holder" means each Purchaser, SMH, or any of their
respective successors and Permitted Assigns who acquire rights in
accordance with this Agreement with respect to the Registrable
Securities directly or indirectly from a Purchaser or SMH,
including from any Permitted Assignee.
"Inspector" means any attorney, accountant, or other agent
retained by a Purchaser for the purposes provided in Section
4(j).
"Majority Holders" means at any time Holders of a majority
of the Registrable Securities.
"Permitted Assignee" means (a) with respect to a
partnership, its partners or former partners in accordance with
their partnership interests, (b) with respect to a corporation,
its shareholders in accordance with their interest in the
corporation, (c) with respect to a limited liability company, its
members or former members in accordance with their interest in
the limited liability company, (d) with respect to an individual
party, any Family Member of such party, (e) an entity that is
controlled by, controls, or is under common control with a
transferor, or (f) a party to this Agreement.
The terms "register," "registered," and "registration"
refers to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act, and
the declaration or ordering of the effectiveness of such
registration statement.
"Registrable Securities" means shares of Common Stock issued
to each Purchaser pursuant to the Subscription Agreements or
issued or issuable to SMH pursuant to the Warrant, excluding (i)
any Registrable Securities that have been publicly sold or may be
sold immediately without registration under the Securities Act
either pursuant to Rule 144 of the Securities Act or otherwise;
(ii) any Registrable Securities sold by a person in a transaction
pursuant to a registration statement filed under the Securities
Act or (iii) any Registrable Securities that are at the time
subject to an effective registration statement under the
Securities Act.
"Registration Default Date" means the date which is 90 days
following the Closing Date; provided, however, if the
Registration Statement is subject to review by the SEC staff the
Registration Default Date shall be the date which is 150 days
following the Closing Date.
"Registration Default Period" means the period following the
Registration Default Date during which any Registration Event
occurs and is continuing.
"Registration Event" means the occurrence of any of the
following events:
(a) the Company fails to file with the SEC the
Registration Statement on or before the date by which the
Company is required to file the Registration Statement
pursuant to Section 3(a),
(b) the Registration Statement covering Registrable
Securities is not declared effective by the Commission on or
before the Registration Default Date,
(c) after the SEC Effective Date, sales cannot be made
pursuant to the Registration Statement for any reason
(including without limitation by reason of a stop order, or
the Company's failure to update the Registration Statement)
but except as excused pursuant to Section 3(a), or
(d) the Common Stock generally or the Registrable
Securities specifically are not listed or included for
quotation on an Approved Market, or trading of the Common
Stock is suspended or halted on the Approved Market, which
at the time constitutes the principal market for the Common
Stock.
"Registration Statement" means the registration statement
required to be filed by the Company pursuant to Section 3(a).
"Securities Act" means the Securities Act of 1933, as
amended, or any similar federal statute promulgated in
replacement thereof, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
"SEC Effective Date" means the date the Registration
Statement is declared effective by the Commission.
"S-3 Blackout Period" means, with respect to a registration,
a period in each case commencing on the day immediately after the
Company notifies the Purchasers and SMH that they are required,
pursuant to Section 4(f), to suspend offers and sales of
Registrable Securities during which the Company, in the good
faith judgment of its Board of Directors, determines (because of
the existence of, or in anticipation of, any acquisition,
financing activity, or other transaction involving the Company,
or the unavailability for reasons beyond the Company's control of
any required financial statements, disclosure of information
which is in its best interest not to publicly disclose, or any
other event or condition of similar significance to the Company)
that the registration and distribution of the Registrable
Securities to be covered by such registration statement, if any,
would be seriously detrimental to the Company and its
shareholders and ending on the earlier of (1) the date upon which
the material non-public information commencing the S-3 Blackout
Period is disclosed to the public or ceases to be material and
(2) such time as the Company notifies the selling Holders that
the Company will no longer delay such filing of the Registration
Statement, recommence taking steps to make such Registration
Statement effective, or allow sales pursuant to such Registration
Statement to resume; provided, however, that the Company shall
limit its use of S-3 Blackout Periods, in the aggregate, to 45
Trading Days in any 12-month period.
"Trading Day" means a day on whichever (a) the national
securities exchange, (b) the Nasdaq Stock Market, or (c) such
other securities market, in any such case which at the time
constitutes the principal securities market for the Common Stock,
is open for general trading of securities.
2. Term. This Agreement shall continue in full force and
effect for a period of two (2) year from the Effective Date.
3. Registration.
(a) Registration on Form S-3. As promptly as reasonably
practicable after the date hereof, but in any event not later
than 60 days after the Closing Date (the "Registration Filing
Date"), the Company shall use its commercially reasonable best
efforts to file with the Commission a shelf registration
statement on Form S-3 relating to the resale by the Holders of
all of the Registrable Securities; provided, however, that the
Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 3(a), or
keep such registration effective pursuant to Section 4: (i) in
any particular jurisdiction in which the Company would be
required to qualify to do business as a foreign corporation or as
a dealer in securities under the securities or blue sky laws of
such jurisdiction or to execute a general consent to service of
process in effecting such registration, qualification or
compliance, in each case where it has not already done so; or
(ii) during any S-3 Blackout Period.
(b) Other Registrations. Prior to the SEC Effective Date,
the Company will not, without the prior written consent of the
Majority Holders, file or request the acceleration of any other
registration statement filed with the Commission, and during any
time subsequent to the SEC Effective Date when the Registration
Statement for any reason is not available for use by any Holder
for the resale of any Registrable Securities, the Company shall
not, without the prior written consent of the Majority Holders,
file any other registration statement or any amendment thereto
with the Commission under the Securities Act or request the
acceleration of the effectiveness of any other registration
statement previously filed with the Commission, other than (A)
any registration statement on Form S-8 and (B) any registration
statement or amendment which the Company is required to file or
as to which the Company is required to request acceleration
pursuant to any obligation in effect on the date of execution and
delivery of this Agreement.
(c) Failure to File Registration Statement. If a
Registration Event occurs, then the Company will make payments to
each Purchaser as partial liquidated damages for the minimum
amount of damages to the Purchaser by reason thereof, and not as
a penalty, at the rate of $0.05 per share of Common Stock held by
such Purchaser per month, for each calendar month of the
Registration Default Period (pro rated for any period less than
30 days). Each such payment shall be due and payable within five
(5) days after the end of each calendar month of the Registration
Default Period until the termination of the Registration Default
Period and within five (5) days after such termination. Such
payments shall be in partial compensation to each Purchaser, and
shall not constitute such Purchaser's exclusive remedy for such
events. The Registration Default Period shall terminate upon (i)
the filing of the Registration Statement in the case of clause
(a) of the definition of "Registration Event," (ii) the SEC
Effective Date in the case of clause (b) of the definition of
"Registration Event," (iii) the ability of the Purchaser to
effect sales pursuant to the Registration Statement in the case
of clause (c) of the definition of "Registration Event," (iv) the
listing or inclusion and/or trading of the Common Stock on an
Approved Market, as the case may be, in the case of clause (d) of
the definition of "Registration Event," and (v) in the case of
the events described in clauses (b) and (c) of the definition of
"Registration Event," the earlier termination of the Registration
Period. The amounts payable as partial liquidated damages
pursuant to this paragraph shall be payable in lawful money of
the United States. Amounts payable as partial liquidated damages
to each Purchaser hereunder shall cease when such Purchaser no
longer holds the Registrable Securities.
4. Registration Procedures. In the case of each
registration, qualification, or compliance effected by the
Company pursuant to Section 3 hereof, the Company will keep each
Holder including securities therein reasonably advised in writing
as to the initiation of each registration, qualification, and
compliance and as to the completion thereof. At its expense with
respect to any registration statement filed pursuant to Section
3, the Company will use its commercially reasonable best efforts
to:
(a) prepare and file with the Commission with respect to
such Registrable Securities, a registration statement on Form S-
3, and use its commercially reasonable efforts to cause such
registration statement to become and remain effective at least
for a period ending with the first to occur of (i) the sale of
all Registrable Securities covered by the registration statement,
(ii) the availability under Rule 144 for the Holder to
immediately, freely resell without restriction all Registrable
Securities covered by the registration statement, and (iii) one
year after a registration statement filed pursuant to Section
3(a) is declared effective by the Commission (in either case,
the "Effectiveness Period"); provided, however, if at the end of
such one-year period, any Holder is not able to immediately,
freely resell all Registrable Securities that it owns, the
Effectiveness Period shall continue until terminated pursuant to
clause (i) or (ii); provided that no later than five business
days before filing with the Commission a registration statement
or prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of
any registration statement, the Company shall (i) furnish to one
counsel ("Holders Counsel") selected by the Holders of a majority
of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed
(excluding any exhibits other than applicable underwriting
documents), in substantially the form proposed to be filed, which
documents shall be subject to the review of such counsel, and
(ii) notify each Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by
the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(b) if a registration statement is subject to review by the
Commission, promptly respond to all comments and diligently
pursue resolution of any comments to the satisfaction of the
Commission;
(c) prepare and file with the Commission 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 during the Effectiveness Period
(but in any event at least until expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174,
or any successor thereto, thereunder, if applicable), and comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement during such period in accordance with the intended
method(s) of disposition by the sellers thereof set forth in such
registration statement;
(d) furnish, without charge, to each Holder of Registrable
Securities covered by such registration statement (i) a
reasonable number of copies of such registration statement
(including any exhibits thereto other than exhibits incorporated
by reference), each amendment and supplement thereto as such
Holder may request, (ii) such number of copies of the prospectus
included in such registration statement (including each
preliminary prospectus and any other prospectus filed under Rule
424 under the Securities Act) as such Holders may request, in
conformity with the requirements of the Securities Act, and (iii)
such other documents as such Holder may reasonably request in
order to facilitate the disposition of the Registrable Securities
owned by such Holder, but only during the Effectiveness Period;
(e) use its commercially reasonable best efforts to
register or qualify such Registrable Securities under such other
applicable securities or blue sky laws of such jurisdictions as
any Holder of Registrable Securities covered by such registration
statement reasonably requests as may be necessary for the
marketability of the Registrable Securities (such request to be
made by the time the applicable registration statement is deemed
effective by the Commission) and do any and all other acts and
things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in such jurisdictions
of the Registrable Securities owned by such Holder; provided that
the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (e), (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction;
(f) immediately notify each Holder of such Registrable
Securities at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the
happening of any event which comes to the Company's attention if
as a result of such event the prospectus included in such
registration statement contains an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Company shall promptly prepare and furnish to
such Holder a supplement or amendment to such prospectus (or
prepare and file appropriate reports under the Exchange Act) so
that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, unless suspension of the use
of such prospectus otherwise is authorized herein or in the event
of an S-3 Blackout Period, in which case no supplement or
amendment need be furnished (or Exchange Act filing made) until
the termination of such suspension or S-3 Blackout Period;
(g) comply, and continue to comply during the period that
such registration statement is effective under the Securities
Act, in all material respects with the Securities Act and the
Exchange Act and with all applicable rules and regulations of the
Commission with respect to the disposition of all securities
covered by such registration statement, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but
not more than eighteen (18) months, beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(h) as promptly as practicable after becoming aware of such
event, notify each Holder of Registrable Securities being offered
or sold pursuant to the Registration Statement of the issuance by
the Commission of any stop order or other suspension of
effectiveness of the Registration Statement at the earliest
possible time;
(i) permit the Holders of Registrable Securities being
included in the Registration Statement and their legal counsel,
at such Holders' sole cost and expense (except as otherwise
specifically provided in Section 6) to review and have a
reasonable opportunity to comment on the Registration Statement
and all amendments and supplements thereto at least three
Business Days prior to their filing with the Commission and shall
not file any such document to which any Holder reasonably
objects;
(j) make available for inspection by any Holder and any
Inspector retained by such Holder, at such Holder's sole expense,
all Records as shall be reasonably necessary to enable such
Holder to exercise its due diligence responsibility, and cause
the Company's officers, directors, and employees to supply all
information which such Holder or any Inspector may reasonably
request for purposes of such due diligence; provided, however,
that such Holder shall hold in confidence and shall not make any
disclosure of any record or other information which the Company
determines in good faith to be confidential, and of which
determination such Holder is so notified at the time such Holder
receives such information, unless (i) the disclosure of such
record is necessary to avoid or correct a misstatement or
omission in the Registration Statement and a reasonable time
prior to such disclosure the Holder shall have informed the
Company of the need to so correct such misstatement or omission
and the Company shall have failed to correct such misstatement of
omission, (ii) the release of such record is ordered pursuant to
a subpoena or other order from a court or governmental body of
competent jurisdiction or (iii) the information in such record
has been made generally available to the public other than by
disclosure in violation of this or any other agreement. The
Company shall not be required to disclose any confidential
information in such records to any Inspector until and unless
such Inspector shall have entered into a confidentiality
agreement with the Company with respect thereto, substantially in
the form of this Section 4(j), which agreement shall permit such
Inspector to disclose records to the Holder who has retained such
Inspector. Each Holder agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or
governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company,
at the Company's expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the
records deemed confidential. The Company shall hold in
confidence and shall not make any disclosure of information
concerning an Holder provided to the Company pursuant to this
Agreement unless (i) disclosure of such information is necessary
to comply with federal or state securities laws, (ii) disclosure
of such information is necessary to avoid or correct a
misstatement or omission in the Registration Statement, (iii)
release of such information is ordered pursuant to a subpoena or
other order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of
this or any other agreement. The Company agrees that it shall,
upon learning that disclosure of such information concerning a
Holder is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice
to such Holder and allow such Holder, at such Holder's expense,
to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, such information;
(k) use its best efforts to cause all the Registrable
Securities covered by the Registration Statement to be quoted on
the Nasdaq National Market or such other principal securities
market on which securities of the same class or series issued by
the Company are then listed or traded;
(l) provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities at all times;
(m) cooperate with the Holders of Registrable Securities
being offered pursuant to the Registration Statement to
facilitate the timely preparation and delivery of certificates
(not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement
and enable such certificates to be in such denominations or
amounts as the Holders may reasonably request and registered in
such names as the Holders may request;
(n) during the Registration Period, refrain from bidding
for or purchasing any Common Stock or any right to purchase
Common Stock or attempting to induce any Person to purchase any
such security or right if such bid, purchase or attempt would in
any way limit the right of the Holders to sell Registrable
Securities by reason of the limitations set forth in Regulation M
under the 1934 Act; and
(o) take all other reasonable actions necessary to expedite
and facilitate disposition by the Holders of the Registrable
Securities pursuant to the Registration Statement.
5. Suspension of Offers and Sales. Each Holder of
Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the
kind described in Section 4(f) hereof or of the commencement
of an S-3 Blackout Period, such Holder shall discontinue
disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section
4(f) hereof or notice of the end of the S-3 Blackout Period,
and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies
(including, without limitation, any and all drafts), other
than permanent file copies, then in such Holder's
possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
In the event the Company shall give any such notice, the
period mentioned in Section 4(a)(iii) hereof shall be
extended by the greater of (i) ten business days or (ii) the
number of days during the period from and including the date
of the giving of such notice pursuant to Section 4(f) hereof
to and including the date when each Holder of Registrable
Securities covered by such registration statement shall have
received the copies of the supplemented or amended
prospectus contemplated by Section 4(f) hereof.
6. Registration Expenses. The Company shall pay all
expenses in connection with any registration, including, without
limitation, all registration, filing, stock exchange and NASD
fees, printing expenses, all fees and expenses of complying with
securities or blue sky laws, the fees and disbursements of
counsel for the Company and of its independent accountants, and
the reasonable fees and disbursements of a Holders Counsel;
provided that, in any underwritten registration, each party shall
pay for its own underwriting discounts and commissions and
transfer taxes. Except as provided above in this Section 6 and
Section 9, the Company shall not be responsible for the expenses
of any attorney or other advisor employed by a Holder of
Registrable Securities.
7. Assignment of Rights. No Holder may assign its rights
under this Agreement to any party without the prior written
consent of the Company; provided, however, that a Holder may
assign its rights under this Agreement without such restrictions
to a Permitted Assignee as long as (a) such transfer or
assignment is effected in accordance with applicable securities
laws; (b) such transferee or assignee agrees in writing to become
subject to the terms of this Agreement; and (c) the Company is
given written notice by such Holder of such transfer or
assignment, stating the name and address of the transferee or
assignee and identifying the Registrable Securities with respect
to which such rights are being transferred or assigned.
8. Information by Holder. The Holder or Holders of
Registrable Securities included in any registration shall furnish
to the Company such information regarding such Holder or Holders
and the distribution proposed by such Holder or Holders as the
Company may request in writing.
9. Indemnification.
(a) In the event of the offer and sale of Registrable
Securities held by Holders under the Securities Act, the Company
shall, and hereby does, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder, its directors,
officers, partners, each other person who participates as an
underwriter in the offering or sale of such securities, and each
other person, if any, who controls or is under common control
with such Holder or any such underwriter within the meaning of
Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, and expenses to which
the Holder or any such director, officer, partner or underwriter
or controlling person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in any registration statement under
which such shares were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not
misleading, and the Company shall reimburse the Holder, and each
such director, officer, partner, underwriter and controlling
person for any legal or any other expenses reasonably incurred by
them in connection with investigating, defending or settling any
such loss, claim, damage, liability, action or proceeding;
provided that the Company shall not be liable in any such case
(i) to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from such
registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by
or on behalf of such Holder specifically stating that it is for
use in the preparation thereof or (ii) if the person asserting
any such loss, claim, damage, liability (or action or proceeding
in respect thereof) who purchased the Registrable Securities that
are the subject thereof did not receive a copy of an amended
preliminary prospectus or the final prospectus (or the final
prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Registrable Securities to such
person because of the failure of such Holder or underwriter to so
provide such amended preliminary or final prospectus and the
untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in such preliminary
prospectus was corrected in the amended preliminary or final
prospectus (or the final prospectus as amended or supplemented).
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Holders, or any
such director, officer, partner, underwriter or controlling
person and shall survive the transfer of such shares by the
Holder.
(b) As a condition to including any Registrable Securities
to be offered by a Holder in any registration statement filed
pursuant to this Agreement, each such Holder agrees to be bound
by the terms of this Section 9 and to indemnify and hold
harmless, to the fullest extent permitted by law, the Company,
its directors and officers, and each other person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such
director or officer or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue
statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance
upon and in conformity with written information about such Holder
as a Holder of the Company furnished to the Company, and such
Holder shall reimburse the Company, and each such director,
officer, and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating,
defending, or settling and such loss, claim, damage, liability,
action, or proceeding; provided, however, that such indemnity
agreement found in this Section 8(b) shall in no event exceed the
gross proceeds from the offering received by such Holder. Such
indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the
transfer by any Holder of such shares.
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving
a claim referred to in Section 9(a) or (b) hereof (including any
governmental action), such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party, give
written notice to the indemnifying party of the commencement of
such action; provided that the failure of any indemnified party
to give notice as provided herein shall not relieve the
indemnifying party of its obligations under Section 9(a) or (b)
hereof, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party, unless in
the reasonable judgment of counsel to such indemnified party a
conflict of interest between such indemnified and indemnifying
parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the
indemnifying party shall be entitled to participate in and to
assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the
assumption of the defenses thereof or the indemnifying party
fails to defend such claim in a diligent manner, other than
reasonable costs of investigation. Neither an indemnified nor an
indemnifying party shall be liable for any settlement of any
action or proceeding effected without its consent. No
indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any
settlement, which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of
such claim or litigation. Notwithstanding anything to the
contrary set forth herein, and without limiting any of the rights
set forth above, in any event any party shall have the right to
retain, at its own expense, counsel with respect to the defense
of a claim.
(d) In the event that an indemnifying party does or is not
permitted to assume the defense of an action pursuant to Section
9(c) or in the case of the expense reimbursement obligation set
forth in Section 9(a) and (b), the indemnification required by
Section 9(a) and (b) hereof shall be made by periodic payments of
the amount thereof during the course of the investigation or
defense, as and when bills received or expenses, losses, damages,
or liabilities are incurred.
(e) If the indemnification provided for in this Section 9
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 herein, the indemnifying party, in
lieu of indemnifying such indemnified party hereunder, shall (i)
contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage or
expense as is appropriate to reflect the proportionate relative
fault of the indemnifying party on the one hand and the
indemnified party on the other (determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or omission relates to information supplied by the
indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission), or (ii)
if the allocation provided by clause (i) above is not permitted
by applicable law or provides a lesser sum to the indemnified
party than the amount hereinafter calculated, not only the
proportionate relative fault of the indemnifying party and the
indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on
the other, as well as any other relevant equitable
considerations. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent
misrepresentation.
(f) Other Indemnification. Indemnification similar to that
specified in the preceding subsections of this Section 9 (with
appropriate modifications) shall be given by the Company and each
Holder of Registrable Securities with respect to any required
registration or other qualification of securities under any
federal or state law or regulation or governmental authority
other than the Securities Act.
10. Miscellaneous
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and
the United States of America, both substantive and remedial. Any
judicial proceeding brought against either of the parties to this
agreement or any dispute arising out of this Agreement or any
matter related hereto may be brought in the courts of the State
of Texas or in the United States District Court for the Southern
District of Texas and, by its execution and delivery of this
agreement, each party to this Agreement accepts the jurisdiction
of such courts. The foregoing consent to jurisdiction shall not
be deemed to confer rights on any person other than the parties
to this Agreement.
(b) Successors and Assigns. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, Permitted Assigns, executors and
administrators of the parties hereto. In the event the Company
merges with, or is otherwise acquired by, a direct or indirect
subsidiary of a publicly traded company, the Company shall
condition the merger or acquisition on the assumption by such
parent company of the Company's obligations under this Agreement.
(c) Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with
regard to the subjects hereof.
(d) Notices, etc. All notices or other communications which
are required or permitted under this Agreement shall be in
writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid,
or by courier or overnight carrier, to the persons at the
addresses set forth below (or at such other address as may be
provided hereunder), and shall be deemed to have been delivered
as of the date so delivered:
If to the Company: Innovo Group, Inc.
0000 X. Xxxxxxx Xxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
If to the Purchasers: To each Purchaser at the address
set forth on Exhibit A
with a copy to: Xxxxxxx Xxxxxx Xxxxxx Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: President
or at such other address as any party shall have furnished to the
other parties in writing.
(e) Delays or Omissions. No delay or omission to exercise
any right, power or remedy accruing to any Holder of any
Registrable Securities, upon any breach or default of the Company
under this Agreement, shall impair any such right, power or
remedy of such Holder nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereunder occurring; nor shall
any waiver of any single breach or default be deemed a waiver of
any other breach or default theretofore or thereafter occurring.
Any waiver, permit, consent or approval of any kind or character
on the part of any Holder of any breach or default under this
Agreement, or any waiver on the part of any Holder of any
provisions or conditions of this Agreement, must be in writing
and shall be effective only to the extent specifically set forth
in such writing. All remedies, either under this Agreement, or
by law or otherwise afforded to any holder, shall be cumulative
and not alternative.
(f) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.
(g) Severability. In the case any provision of this
Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
(h) Amendments. The provisions of this Agreement may be
amended at any time and from time to time, and particular
provisions of this Agreement may be waived, with and only with an
agreement or consent in writing signed by the Company and by the
holders of an 80% majority of the number of shares of Registrable
Securities outstanding as of the date of such amendment or
waiver. The Purchasers acknowledge that by the operation of this
Section 10(h), the holders of an 80% majority of the outstanding
Registrable Securities may have the right and power to diminish
or eliminate all rights of the Purchasers under this Agreement.
(i) Limitation on Subsequent Registration Rights. After
the date of this Agreement, the Company shall not, without the
prior written consent of the Holders of at least a majority of
the Registrable Securities then outstanding, enter into any
agreement with any holder or prospective holder of any securities
of the Company that would grant such holder registration rights
senior to those granted to the Holders hereunder.
This Registration Rights Agreement is hereby executed as of
the date first above written.
COMPANY:
INNOVO GROUP, INC.
By: /s/ Xxxxxx Xxxxxx Xxxxxx, Xx.
Name: Xxxxxx Xxxxxx Xxxxxx, Xx.
Its: CEO
PURCHASERS:
The Purchasers listed on
Exhibit A attached hereto
By: XXXXXXX XXXXXX XXXXXX
INC.,
Agent and Attorney-in-fact
By:________________________________
Name:____________________________
Its:_______________________________
Exhibit A
Purchaser Information
INNOVO GROUP OFFERING -- PURCHASERS
INVESTOR PRINCIPAL SHARES SUBSCRIPTI
RESIDENCE/EXECUTIVE PURCHAS ON AMOUNT
OFFICE ED
Apogee Fund, L.P. 000 Xxxx Xx., Xxx. 0000 275,000 915,750.00
Xxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx SEP 0000 Xxxx Xx., Xxx. 000 30,000 99,900.00
Xxxxx, XX 00000
Atlas Capital (Q.P.) 000 Xxxxxxxx Xx., #000 22,000 73,260.00
L.P. Xxxxxx, XX 00000
Atlas Capital 000 Xxxxxxxx Xx., #000 78,000 259,740.00
Management Master Xxxxxx, XX 00000
Fund, Ltd.
Xxxxxxx X. Xxxx Xx., 1924 Craigmore 30,000 99,900.00
TTEE, Xxxxxxx X. Xxxxxxxxx, XX 00000-
Byrd Jr. Rev. Trust 6204
Xxxx Xxxx and 00000 Xxxxxxx Xx. 6,000 $19,980.00
Xxxxxxx X. Xxxx, Xxxxxxxxx, XX 0000-0000
JTWROS
Xxxxx Xxxx 3168 Mockingbird Xxxxx 30,000 99,900.00
XxXxxxx, XX 00000-0000
Xxxxxxx Xxxxxxx, Sr. 0000 Xxxxxxxxx Xx., No. 45,000 149,850.00
2400
Xxxxxxxxx, XX 00000
Crescent c/o Greenlight 90,090 299,999.70
International Ltd. (Switzerland) SA
84 Ave. Xxxxx Xxxxx,
X.X. Xxx 000
0000 Xxxxxxxx, Xxxxxx
Xxxxxxxxxxx
Xxxx X. Xxxxx and 0000 Xxxxxxx Xx. 18,999 63,266.67
Xxxxx X. Xxxxx XX. Xxxxxx, XX 00000
TEN.
FlyLine Holdings 000 X. 0xx Xx., Xxx. 000,000 666,000.00
Ltd. 103
Xxxx Xxxxx, XX 00000
Xxxx X. Xxxxx 0000 Xxxxxxxx Xx. 100,000 333,000.00
Revocable Trust Xxxx Xxxxx, XX 00000-
2312
Xxxx X. Xxxxxxxxx 0000 Xxxxxx Xx., #000 30,000 99,900.00
SEP Xxxxxx, XX 00000
Hardy Fields SEP 0000 Xxxxx Xxxxxxxx 115 40,000 133,200.00
Xxxxxxxx, XX 00000
XXX FBO Don A. 600 Xxxxxx, Suite 3100 30,030 100,000.00
Xxxxxxx Xxxxxxx, XX 00000
XXX FBO Xxxxxxxxx X. 000 Xxxxxx, Xxxxx 0000 30,030 100,000.00
Xxxxxxx Xxxxxxx, XX 00000
Xxxx X. Xxxxx 0000 Xxxxxxxx Xxx. 60,000 199,800.00
Xxxxxx, XX 00000
Lakefront Partners, 000 Xxxxxx, Xxxxx 0000 30,030 99,999.00
Ltd. Xxxxxxx, XX 00000
Xxxxxxx Family Trust 0000 Xxxxxx Xx. 30,000 99,900.00
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxx 00 Xxxxxxxx Xxxxx, Xx. 00,000 149,850.00
1400
Xxxxxxx, XX 00000
Xxxx X. Xxxxxxxxx, 0000 Xxxxxx Xxxx Xxxx 45,000 149,850.00
M.D., TTEE, Xxxx X. Xxxxxx, XX 00000
Xxxxxxxxx Employee
Profit Sharing Trust
Precept Capital 000 Xxxxxxxx Xx., Xxx. 000,000 999,000.00
Master Fund, G.P. 850
Xxxxxx, XX 00000
RAM, Ltd. 0000 Xxxxxxxxxx Xxx. 200,000 666,000.00
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx 00000 X. Xxxxxx Xx. S. 15,000 49,950.00
Xxxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxxxxxxx 000 Xxxxxx, Xxxxx 0000 108,118 360,032.94
Fund Xxxxxxx, XX 00000
(Institutional),
X.X.
Xxxxxxx Xxxxxxxxxxx 000 Xxxxxx, Xxxxx 0000 41,883 139,470.39
Fund, L.P. Xxxxxxx, XX 00000
Sandor Capital 0000 Xxxxx Xx., Xxx. 00,000 299,700.00
Master Fund, L.P. 500
Dallas, TX 75201
Xxxxx Xxxx 000 Xxxxx Xxxxxx Xxxx. 10,000 33,300.00
Xxx Xxxxxxx, XX 00000
The Falcon Cable 00000 Xxxxxxxx Xxxx., 200,000 666,000.00
Trust Xxx. 0000
Xxx Xxxxxxx, XX 00000
Twin Capital Growth 0000 Xxxx Xx., Xxx. 000 30,000 99,900.00
L.P. Xxxxx, XX 00000
Westpark Capital 0000 Xxxxxxx Xxxx Xxxx. 50,000 166,500.00
L.P. #220
Xxxxx, XX 00000
Xxxxxxx Xxxxxxxx 0000 Xxxxxxxxxxxx Xx. 225,000 749,250.00
Xxxxxx, XX 00000
WS Opportunity Fund 000 Xxxxxxxx Xx., Xxx. 00,000 319,999.68
International, Ltd. 880
Xxxxxx, XX 00000
WS Opportunity 000 Xxxxxxxx Xx., Xxx. 000,000 680,002.65
Master Fund 880
Xxxxxx, XX 00000
2,835,4 $9,442,151
81 .03
