AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT by and between DYNARESOURCE, INC. and GOLDEN POST RAIL, LLC Dated as of May __, 2020
Exhibit 4.7
AMENDED
AND RESTATED
by and
between
DYNARESOURCE,
INC.
and
GOLDEN
POST RAIL, LLC
Dated
as of May __, 2020
HB Draft
3-29-2020
TABLE OF CONTENTS
|
|
|
Page
|
|
1
|
DEFINITIONS.
|
1
|
|
2
|
REGISTRATION
UNDER THE SECURITIES ACT.
|
4
|
|
2.1.
|
Shelf
Registration.
|
4
|
|
2.2.
|
Demand
Registration.
|
5
|
|
2.3.
|
Incidental
Registration.
|
6
|
|
2.4.
|
Expenses.
|
7
|
|
2.5.
|
Underwritten
Offerings.
|
7
|
|
2.6.
|
Conversions;
Exercises.
|
8
|
|
2.7.
|
Postponements.
|
8
|
|
3
|
HOLDBACK
ARRANGEMENTS.
|
9
|
|
3.1.
|
Restrictions
on Sale by Holders of Registrable Securities.
|
9
|
|
3.2.
|
Restrictions
on Sale by the Company and Others.
|
9
|
|
4
|
REGISTRATION
PROCEDURES.
|
9
|
|
4.1.
|
Obligations
of the Company.
|
9
|
|
4.2.
|
Seller
Information.
|
12
|
|
4.3.
|
Notice
to Discontinue.
|
12
|
|
5
|
INDEMNIFICATION;
CONTRIBUTION.
|
12
|
|
5.1.
|
Indemnification
by the Company.
|
12
|
|
5.2.
|
Indemnification
by Holders.
|
13
|
|
5.3.
|
Conduct
of Indemnification Proceedings.
|
13
|
|
5.4.
|
Contribution.
|
13
|
|
5.5.
|
Other
Indemnification.
|
14
|
|
5.6.
|
Indemnification
Payments.
|
14
|
|
6
|
GENERAL.
|
14
|
|
6.1.
|
Adjustments
Affecting Registrable Securities.
|
14
|
|
6.2.
|
Registration
Rights to Others.
|
14
|
|
6.3.
|
Availability
of Information; Rule 144; Rule 144A; Other Exemptions.
|
14
|
|
6.4.
|
Amendments
and Waivers.
|
14
|
|
6.5.
|
Notices.
|
15
|
|
6.6.
|
Successors
and Assigns.
|
16
|
|
6.7.
|
Counterparts.
|
16
|
|
6.8.
|
Descriptive
Headings, Etc.
|
16
|
|
6.9.
|
Severability.
|
16
|
|
6.10.
|
Governing
Law.
|
16
|
|
6.11.
|
Remedies;
Specific Performance.
|
16
|
|
6.12.
|
Entire
Agreement.
|
17
|
|
6.13.
|
Nominees
for Beneficial Owners.
|
17
|
|
6.14.
|
Consent
to Jurisdiction.
|
18
|
|
6.15.
|
Further
Assurances.
|
18
|
|
6.16.
|
No
Inconsistent Agreements.
|
18
|
|
6.17.
|
Construction.
|
18
|
AMENDED
AND RESTATED
This
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
“Agreement”) is
entered into as of May __, 2020, by and between DynaResource, Inc.,
a Delaware corporation (the “Company”), and
Golden Post Rail, LLC (the “Investor”).
W I
T N E S S E T H :
WHEREAS, Investor
holds shares of the Company’s Series C Preferred Stock and/or
shares of Common Stock issued upon conversion thereof and possesses
registration rights and other rights pursuant to that certain
Registration Rights Agreement dated as of June 30, 2015, by and
among the Company and the Investor (the “Prior
Agreement”);
WHEREAS, the
Investor and the Company desire to amend and restate the Prior
Agreement in its entirety and to accept the rights created pursuant
to this Agreement in lieu of the rights granted to them under the
Prior Agreement;
and
NOW,
THEREFORE, the Investor and the Company hereby agree that the Prior
Agreement shall be amended and restated in its entirety by this
Agreement, and the parties to this Agreement further agree as
follows:
As used
in this Agreement, the following terms shall have the following
meanings:
“Affiliate”
shall mean with respect to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with such Person, and with respect to any
individual, shall mean his or her spouse, sibling, child, step
child, grandchild, niece, nephew or parent of such Person, or the
spouse thereof. For purposes of this definition,
“control” (including, with correlative meanings, the
terms “controlling,” “controlled by” and
“under common control with”), as used with respect to
any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided, however, that beneficial ownership of
20% or more of the voting securities of a Person shall be deemed to
constitute control.
“Blackout
Period” shall have the meaning set forth in Section
2.7.
“Business Day”
shall mean any day other than Saturday, Sunday or other day on
which commercial banks in the City of New York are authorized or
required by law to remain closed.
“Certificate of
Incorporation” shall mean the Amended and Restated
Certificate of Incorporation (as the same may be amended or
restated) of the Company, as filed with the Secretary of State of
the State of Delaware.
“Company” shall
have the meaning set forth in the preamble.
“Common Stock”
shall mean shares of the common stock, par value $0.01 per share,
of the Company.
“Demand
Registration” shall mean a registration required to be
effected by the Company pursuant to Section 2.2, including a
registration for an offering on a delayed or continuous basis
pursuant to Rule 415 promulgated under the Securities
Act.
1
“Demand Registration
Statement” shall mean a Registration Statement of the
Company filed on Form S-1 (or any successor form thereto), or such
other appropriate form as directed by the Majority Holders of the
Registration, which covers the Registrable Securities requested to
be included therein pursuant to the provisions of Section 2.2 and
all amendments and supplements to such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference (or deemed to be incorporated by
reference) therein.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations thereunder, or any
successor statute.
“FINRA” shall
mean the Financial Industry Regulatory Authority, Inc.
“Holder”
or “Holders” shall
mean the Investor, for so long as it owns any Registrable
Securities, and each of its respective heirs, successors and
permitted assigns (including any permitted transferees of
Registrable Securities) who acquire or are otherwise the transferee
of Registrable Securities, directly or indirectly, from the
Investor (or any subsequent Holder), for so long as such heirs,
successors and permitted assigns own any Registrable Securities.
For purposes of this Agreement, a Person will be deemed to be a
Holder whenever such Person holds Registrable Securities, an option
to purchase, or a security convertible into or exercisable or
exchangeable for, Registrable Securities, whether or not such
purchase, conversion, exercise or exchange has actually been
effected and disregarding any legal restrictions upon the exercise
of such rights. Registrable Securities issuable upon exercise of an
option or upon conversion, exchange or exercise of another security
shall be deemed outstanding for the purposes of this
Agreement.
“Holders’
Counsel” shall mean one firm of counsel (per
registration) to the Holders of Registrable Securities
participating in such registration, which counsel shall be selected
by the Majority Holders of the Registration.
“Incidental
Registration” shall mean a registration required to be
effected by the Company pursuant to Section 2.3.
“Incidental Registration
Statement” shall mean a registration statement of the
Company which covers the Registrable Securities requested to be
included therein pursuant to the provisions of Section 2.3 and all
amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference (or deemed to be incorporated by
reference) therein.
“Initiating
Holder” or “Initiating
Holders” shall mean, with respect to a particular
registration, the Holder or Holders, as the case may be, who
initiated the Shelf Request or Request for such
registration.
“Investor”
shall have the meaning set forth in the preamble.
“Inspectors”
shall have the meaning set forth in Section 4.1(g).
“Majority
Holders” shall mean one or more Holders of Registrable
Securities who would hold a majority of the Registrable Securities
then outstanding.
“Majority Holders of the
Registration” shall mean, with respect to a particular
registration, one or more Holders of Registrable Securities who
would hold a majority of the Registrable Securities to be included
in such registration.
“Person”
shall mean any individual, firm, partnership, corporation, trust,
joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or
organization, including a government or agency or political
subdivision thereof, and shall include any successor (by merger or
otherwise) of such entity.
“Prospectus”
shall mean the prospectus included in a Registration Statement
(including, without limitation, any preliminary prospectus and any
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), and
any such Prospectus as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case
including all material incorporated by reference (or deemed to be
incorporated by reference) therein.
“Purchase
Agreement” means that certain Note Purchase Agreement,
dated May 14, 2020, by and between the Company and the
Investor.
2
“Registrable
Securities” shall mean (i) shares of Common
Stock which may be issued or issuable upon the conversion of the
Series C Preferred Stock and/or Series D Preferred Stock, (ii) any
shares of Common Stock, or any Common Stock issued or issuable
(directly or indirectly) upon conversion and/or exercise of any
other securities of the Company, acquired by the Investor after the
date hereof, including, without limitation, the Common Stock
Purchase Warrant, dated June 30, 2015, by and between the Company
and the Investor (the “2015
Warrant”), the Common Stock Purchase Warrant, dated
May 13, 2020 (the “Anti-Dilution
Warrant”), the Common Stock Purchase Warrant, dated
May 14, 2020, by and between the Company and the Investor (the
“2020
Warrant”) and the Convertible Promissory Note, dated
May 14, 2020, issued by the Company to the Investor (including any
additional shares of Common Stock issuable pursuant to
anti-dilution provisions in the 2015 Warrant, the Anti-Dilution
Warrant, the 2020 Warrant or the Purchase Agreement) and (iii) any other securities of
the Company (or any successor or assign of the Company, whether by
merger, consolidation, sale of assets or otherwise) which may be
issued or issuable with respect to, in exchange for, or in
substitution of, Registrable Securities referenced in clauses (i)
through (ii) above by reason of any dividend or stock split,
combination of shares, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar
transaction. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (A) a
registration statement with respect to the sale of such securities
shall have been declared effective under the Securities Act and
such securities shall have been disposed of in accordance with such
registration statement, (B) such securities are sold pursuant to
Rule 144 (or any similar provisions then in force) promulgated
under the Securities Act, (C) such securities have been otherwise
transferred and a new certificate or other evidence of ownership
for them that does not bear the legend restricting further transfer
has been delivered by the Company and subsequent public
distribution of them shall not require registration under the
Securities Act or (D) such securities shall have ceased to be
outstanding.
“Registration
Expenses” shall mean any and all expenses incident to
performance of or compliance with this Agreement by the Company and
its subsidiaries, including, without limitation (i) all SEC, stock
exchange, FINRA and other registration, listing and filing fees,
(ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance
with the rules of any stock exchange (including fees and
disbursements of counsel in connection with such compliance and the
preparation of a blue sky memorandum and legal investment survey),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing, distributing, mailing and
delivering any Registration Statement, any Prospectus, any
underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to
the performance of or compliance with this Agreement, (iv) the fees
and disbursements of counsel for the Company, (v) the fees and
disbursements of Holders’ Counsel, (vi) the fees and
disbursements of all independent public accountants (including the
expenses of any audit and/or “cold comfort” letters)
and the fees and expenses of other Persons, including experts,
retained by the Company, (vii) the expenses incurred in connection
with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of
Registrable Securities which are customarily borne by the issuer,
(viii) any fees and disbursements of underwriters customarily paid
by issuers or sellers of securities and (ix) premiums and other
costs of policies of insurance against liabilities arising out of
the public offering of the Registrable Securities being registered;
provided, however, Registration Expenses shall
not include discounts and commissions payable to underwriters,
selling brokers, dealer managers or other similar Persons engaged
in the distribution of any of the Registrable Securities; and
provided further, that in any case where
Registration Expenses are not to be borne by the Company, such
expenses shall not include salaries of Company personnel or general
overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters
of the Company or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have
incurred in any event; and provided, further, that in the event the Company
shall, in accordance with Section 2.3 or Section 2.7 hereof, not
register any securities with respect to which it had given written
notice of its intention to register to Holders notwithstanding
anything to the contrary in the foregoing, all of the costs
incurred by the Holder in connection with such registration shall
be deemed to be Registration Expenses.
“Registration
Statement” shall mean any registration statement of
the Company which covers any Registrable Securities and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference (or deemed to be incorporated by
reference) therein.
“Request” shall
have the meaning set forth in Section 2.2(a).
“SEC” shall
mean the Securities and Exchange Commission, or any successor
agency having jurisdiction to enforce the Securities
Act.
“Securities
Act” shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder, or any
successor statute.
“Series C Preferred
Stock” shall mean shares of the Series C Preferred
Stock, par value $0.0001 per share, of the Company.
“Series C Purchase
Agreement” shall mean that certain Securities Purchase
Agreement, dated May 6, 2015, by and between the Company and the
Investor.
“Series D Preferred
Stock” shall mean shares of the Series D Preferred
Stock, par value $0.0001 per share, of the Company.
“Shelf
Registration” shall mean a registration required to be
effected by the Company pursuant to Section 2.1(a).
3
“Shelf Registration
Statement” shall mean a Registration Statement of the
Company filed on Form S-3 (or any successor form thereto) pursuant
to Rule 415 promulgated under the Securities Act which covers the
Registrable Securities requested to be included therein pursuant to
the provisions of Section 2.1(a) and all amendments and supplements
to such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference (or deemed to be incorporated by reference)
therein.
“Shelf Request”
shall have the meaning set forth in Section 2.1(a).
“Underwriters”
shall mean the underwriters, if any, of the offering being
registered under the Securities Act.
“Underwritten
Offering” shall mean a sale of securities of the
Company to an Underwriter or Underwriters for reoffering to the
public.
“Withdrawn Demand
Registration” shall have the meaning set forth in
Section 2.2(a).
“Withdrawn
Request” shall have the meaning set forth in Section
2.2(a).
(a) Shelf Registration. At any time
commencing after the effective time of the Series C Purchase
Agreement, if the Company is eligible to file with the SEC a
Registration Statement on Form S-3 (or any successor form thereto),
the Majority Holders shall have the right to request in writing
that the Company (i) register all or any portion of such
Holder’s Registrable Securities by filing with the SEC a
Shelf Registration Statement for a public offering of such shares
of Registrable Securities (a “Shelf
Request”) (which Shelf Request shall specify the
amount of Registrable Securities intended to be disposed of by such
Holder and the intended method of disposition thereof) and (ii)
shall use its best efforts to register under the Securities Act for
public sale such Registrable Securities of such Holder. As promptly
as practicable, but no later than ten (10) calendar days after
receipt of the Shelf Request, the Company shall give written notice
of such requested registration to all other Holders of Registrable
Securities. The Company shall include in the Shelf Registration (i)
the Registrable Securities intended to be disposed of by the
Initiating Holder and (ii) the Registrable Securities intended to
be disposed of by any other Holder which shall have made a written
request (which request shall specify the amount of Registrable
Securities to be registered and the intended method of disposition
thereof) to the Company for inclusion thereof in such registration
within twenty (20) calendar days after the receipt of such written
notice from the Company, in each cash subject to the provisions of
Section 2.5(d). Accordingly, once an Initiating Holder has made a
Shelf Request and the Company has sent the required notice of such
Shelf Request to all other Holders, such other Holders may elect to
participate in the registration or not, but such Holders will not
have the right to make a separate Shelf Request until the
expiration of the ninety (90) calendar day period following the
date of the initial Shelf Request. The Company shall, as
expeditiously as possible following a Shelf Request, use its best
efforts to cause to be filed with the SEC a Shelf Registration
Statement providing for the registration under the Securities Act
of the Registrable Securities which the Company has been so
requested to register by all such Holders, to the extent necessary
to permit the disposition of such Registrable Securities so to be
registered in accordance with the intended methods of disposition
thereof specified in such Shelf Request or further requests. The
Company shall use its best efforts to have such Registration
Statement declared effective by the SEC as soon as practicable
thereafter and to keep such Shelf Registration Statement
continuously effective for the period specified in Section 4.1(b).
If the sole or lead managing Underwriter (if any) or the Majority
Holders of the Registration shall advise the Company in writing
that in its opinion additional disclosure not required by Form S-3
(or any successor form thereto) is of material importance to the
success of the offering, then such Registration Statement shall
include such additional disclosure. Any Holder requesting inclusion
in a registration effected pursuant to this Section 2.1(a) may, at
any time prior to the effectiveness of the Shelf Registration
Statement (and for any reason), revoke such request by delivering
written notice to the Company revoking such requested inclusion.
For the avoidance of doubt, a Shelf Request shall not count against
the number of Demand Registration rights pursuant to the provisions
of Section 2.2(b).
Whenever the
Company shall effect a registration pursuant to a Shelf Request, no
securities other than the Registrable Securities shall be covered
by such registration unless the Majority Holders of the
Registration shall have consented in writing to the inclusion of
such other securities.
The
registration rights granted pursuant to the provisions of this
Section 2.1(a) shall be in addition to the registration rights
granted pursuant to the other provisions of this Section
2.
4
(b) Effectiveness of Shelf
Registration. If a Shelf Registration is filed pursuant to
Section 2.1(a), the Company shall use its best efforts to keep the
Shelf Registration continuously effective through the date on which
all of the Registrable Securities covered by such Shelf
Registration may be sold pursuant to Rule 144 promulgated under the
Securities Act without any limit as to volume (or any successor
provision having similar effect); provided, however, that prior to the termination
of such Shelf Registration, the Company shall first furnish to each
Holder of Registrable Securities participating in such Shelf
Registration (i) an opinion, in form and substance satisfactory to
the Majority Holders of the Registration, of counsel for the
Company satisfactory to the Majority Holders of the Registration
stating that such Registrable Securities are freely sellable
pursuant to Rule 144 promulgated under the Securities Act without
any limit as to volume (or any successor provision having similar
effect) or (ii) a “No-Action Letter” from the staff of
the SEC stating that the SEC would not recommend enforcement action
if the Registrable Securities included in such Shelf Registration
were sold in a public sale other than pursuant to an effective
Registration Statement.
(c) Form S-3 Eligibility. At any
time commencing after the effective time of the Series C Purchase
Agreement, if the Company becomes eligible to file with the SEC a
Registration Statement on Form S-3 (or any successor form thereto)
for a primary offering, or becomes re-eligible after losing such
eligibility, the Company shall, as promptly as practicable, but no
later than fourteen (14) calendar days after gaining or regaining
such eligibility, as applicable, provide written notice of such
event to the Holders.
(a) Right to Demand Registration.
Subject to Section 2.2(c), at any time commencing after the
effective time of the Series C Purchase Agreement, the Majority
Holders shall have the right to request in writing that the Company
register all or part of such Holders’ Registrable Securities
(a “Request”)
(which Request shall specify the amount of Registrable Securities
intended to be disposed of by such Holders and the intended method
of disposition thereof) by filing with the SEC a Demand
Registration Statement. As promptly as practicable, but no later
than ten (10) calendar days after receipt of a Request, the Company
shall give written notice of such requested registration to all
Holders of Registrable Securities. Subject to Section 2.5(d), the
Company shall include in a Demand Registration (i) the Registrable
Securities intended to be disposed of by the Initiating Holders and
(ii) the Registrable Securities intended to be disposed of by any
other Holder which shall have made a written request (which request
shall specify the amount of Registrable Securities to be registered
and the intended method of disposition thereof) to the Company for
inclusion thereof in such registration within twenty (20) calendar
days after the receipt of such written notice from the Company. The
Company shall, as expeditiously as possible following a Request,
use its best efforts to cause to be filed with the SEC a Demand
Registration Statement providing for the registration under the
Securities Act of the Registrable Securities which the Company has
been so requested to register by all such Holders, to the extent
necessary to permit the disposition of such Registrable Securities
so to be registered in accordance with the intended methods of
disposition thereof specified in such Request or further requests.
The Company shall use its best efforts to have such Demand
Registration Statement declared effective by the SEC as soon as
practicable thereafter and to keep such Demand Registration
Statement continuously effective for the period specified in
Section 4.1(b).
A
Request may be withdrawn prior to the filing of the Demand
Registration Statement by the Majority Holders of the Registration
(a “Withdrawn
Request”) and a Demand Registration Statement may be
withdrawn at any time (and for any reason) prior to the
effectiveness of such Demand Registration Statement (a
“Withdrawn Demand
Registration”), and such withdrawals shall be treated
as a Demand Registration which shall have been effected pursuant to
this Section 2.2, unless the Holders of Registrable Securities to
be included in such Registration Statement reimburse the Company
for its reasonable out-of-pocket Registration Expenses relating to
the preparation and filing of such Demand Registration Statement
(to the extent actually incurred), provided; however, that if a Withdrawn Request or
Withdrawn Demand Registration is made (A) because of a material
adverse change in the business, financial condition or prospects of
the Company, or (B) because the sole or lead managing Underwriter
advises that the amount of Registrable Securities to be sold in
such offering be reduced pursuant to Section 2.2(b) by more than
20% of the Registrable Securities to be included in such
Registration Statement, or (C) because of a postponement of such
registration pursuant to Section 2.7, then such withdrawal shall
not be treated as a Demand Registration effected pursuant to this
Section 2.2 (and shall not be counted toward the number of Demand
Registrations), and the Company shall pay all Registration Expenses
in connection therewith. Any Holder requesting inclusion in a
Demand Registration may, at any time up to the effectiveness of the
Demand Registration Statement (and for any reason) revoke such
request by delivering written notice to the Company revoking such
requested inclusion.
The
registration rights granted pursuant to the provisions of this
Section 2.2 shall be in addition to the registration rights
granted pursuant to the other provisions of Section 2
hereof.
(b) Limitations on Registrations.
The rights of the Majority Holders to request Demand Registrations
pursuant to Section 2.2(a) are subject to the limitation that in no
event shall the Company be obligated to pay Registration Expenses
of more than two Demand Registrations initiated by the Majority
Holders; provided,
however, (i) that to the
extent the Company does not include in what would otherwise be the
final registration for which the Company is required to pay
Registration Expenses the number of Registrable Securities
requested to be registered by the Holders by reason of Section
2.5(d) such number of Demand Registrations shall be increased once
for each such occurrence and (ii) the Majority Holders shall be
deemed not to have expended a Demand Registration right to the
extent the Company terminates a Shelf Registration pursuant to
Section 2.1(b) prior to the time that all Registrable Securities
covered by such Shelf Registration have been sold.
5
(c) Registration of Other
Securities. Whenever the Company shall effect a Demand
Registration, no securities other than the Registrable Securities
shall be covered by such registration unless the Majority Holders
of the Registration shall have consented in writing to the
inclusion of such other securities.
(d) Effective Registration Statement;
Suspension. A Demand Registration Statement shall not be
deemed to have become effective (and the related registration will
not be deemed to have been effected) (i) unless it has been
declared effective by the SEC and remains effective in compliance
with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Demand
Registration Statement for the time period specified in Section
4.1(b), (ii) if the offering of any Registrable Securities pursuant
to such Demand Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, or (iii) if, in the case of
an Underwritten Offering, the conditions to closing specified in an
underwriting agreement to which the Company is a party are not
satisfied other than by the sole reason of any breach or failure by
the Holders of Registrable Securities or are not otherwise
waived.
(e) Other Registrations. During the
period (i) beginning on the date of a Request and (ii) ending on
the date that is ninety (90) calendar days after the date that a
Demand Registration Statement filed pursuant to such Request has
been declared effective by the SEC or, if the Majority Holders of
the Registration shall withdraw such Request or such Demand
Registration Statement, on the date of such Withdrawn Request or
such Withdrawn Registration Statement, the Company shall not,
without the consent of the Majority Holders of the Registration,
file a registration statement pertaining to any other securities of
the Company.
(f) Registration Statement Form.
Registrations under this Section 2.2 shall be on such appropriate
registration form of the SEC (i) as shall be selected by the
Majority Holders of the Registration and (ii) which shall be
available for the sale of Registrable Securities in accordance with
the intended method or methods of disposition specified in the
requests for registration. The Company agrees to include in any
such Registration Statement all information which any selling
participating Holder, upon advice of counsel, shall reasonably
request.
(a) Right to Include Registrable
Securities. If the Company at any time or from time to time
proposes to register any of its securities under the Securities Act
(other than pursuant to a registration on Form S-4 or S-8 (or any
successor form to such forms) and other than pursuant to Section
2.1 or 2.2) and files (i) a shelf registration statement or (ii) a
registration statement other than a shelf registration statement,
or proposes to do a take down off of an effective shelf
registration statement, whether or not pursuant to registration
rights granted to other holders of its securities and whether or
not for sale for its own account, the Company shall deliver prompt
written notice (which notice shall be given at least forty-five
(45) calendar days prior to the filing of such registration
statement or five (5) calendar days prior to the filing of any
preliminary prospectus supplement pursuant to Rule 424(b), or the
prospectus supplement pursuant to Rule 424(b) (if no preliminary
prospectus supplement is used)) to all Holders of Registrable
Securities of its intention to undertake such registration or
offering, describing in reasonable detail the proposed registration
and distribution (including the anticipated range of the proposed
offering price, the class and number of securities proposed to be
registered and the distribution arrangements) and of such
Holders’ right to participate in such registration under this
Section 2.3 as hereinafter provided. Subject to the other
provisions of this paragraph (a) and Section 2.3(b), upon the
written request of any Holder made within twenty (20) calendar days
after the receipt of such written notice (which request shall
specify the amount of Registrable Securities to be registered and
the intended method of disposition thereof), the Company shall
effect the registration under the Securities Act of all Registrable
Securities requested by Holders to be so registered (an
“Incidental
Registration”), to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, by
inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to
register (thereby making such registration statement an Incidental
Registration Statement), and shall cause such Incidental
Registration Statement to become and remain effective with respect
to such Registrable Securities in accordance with the registration
procedures set forth in Section 4. If an Incidental Registration
involves an Underwritten Offering, immediately upon notification to
the Company from the Underwriter of the price at which such
securities are to be sold, the Company shall so advise each
participating Holder. The Holders requesting inclusion in an
Incidental Registration may, at any time up to the effectiveness of
the Incidental Registration Statement (and for any reason), revoke
such request by delivering written notice to the Company revoking
such requested inclusion.
If at
any time after giving written notice of its intention to register
any securities and up to the effectiveness of the Incidental
Registration Statement filed in connection with such registration,
the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its
election, give written notice of such determination to each Holder
of Registrable Securities and, thereupon, (A) in the case of a
determination not to register, the Company shall be relieved of its
obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
Registration Expenses incurred in connection therewith), without
prejudice, however, subject to the rights of Holders to cause such
registration to be effected as a registration under
Sections 2.1 or 2.2, and (B) in the case of a determination to
delay such registration, the Company shall be permitted to delay
the registration of such Registrable Securities in accordance with
the provisions of Section 2.7; provided, however, that if such delay shall
extend beyond one hundred twenty (120) calendar days from the date
the Company received a request to include Registrable Securities in
such Incidental Registration, then the Company shall again give all
Holders the opportunity to participate therein and shall follow the
notification procedures set forth in the preceding paragraph. There
is no limitation on the number of such Incidental Registrations
pursuant to this Section 2.3 which the Company is obligated to
effect.
The
registration rights granted pursuant to the provisions of this
Section 2.3 shall be in addition to the registration rights granted
pursuant to the other provisions of Section 2 hereof.
6
(b) Priority in Incidental
Registration. If an Incidental Registration involves an
Underwritten Offering (on a firm commitment basis), and the sole or
the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise the Company in writing (with a
copy to each Holder requesting registration) on or before the date
five (5) calendar days prior to the date then scheduled for such
offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such
registration exceeds the amount which can be sold in such offering
without materially interfering with the successful marketing of the
securities being offered (such writing to state the basis of such
opinion and the approximate number of such securities which may be
included in such offering without such effect), the Company shall
include in such registration, to the extent of the number which the
Company is so advised may be included in such offering without such
effect, (i) in the case of a registration initiated by the Company,
(A) first, the securities that the Company proposes to register for
its own account, (B) second the Registrable Securities requested to
be included in such registration by the Holders, allocated
pro rata in proportion to the number of
Registrable Securities requested to be included in such
registration by each of them and (C) third, other securities of the
Company to be registered on behalf of any other Person, and (ii) in
the case of a registration initiated by a Person other than the
Company, (A) first, the Registrable Securities requested to be
included in such registration by any Persons initiating such
registration and the Registrable Securities requested to be
included in such registration by the other Holders, (B) second, any
other Persons, allocated pro rata in proportion to the number of
securities requested to be included in such registration by each of
them and (C) third, the securities that the Company proposes
to register for its own account, provided, however, that in the event the Company
will not, by virtue of this Section 2.3(b), include in any such
registration all of the Registrable Securities of any Holder
requested to be included in such registration, such Holder may,
upon written notice to the Company given within three (3) calendar
days of the time such Holder first is notified of such matter,
reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable
Securities, if any, it desires to have included will be so included
and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to
be included in such registration.
(c) Selection of Underwriters. If
any Incidental Registration involves an Underwritten Offering, the
sole or managing Underwriter(s) and any additional investment
bankers and managers to be used in connection with such
registration shall be subject to the approval of the Majority
Holders of the Registration (such approval not to be unreasonably
withheld).
The
Company shall pay all Registration Expenses in connection with any
Demand Registration, Incidental Registration or Shelf Registration,
whether or not such registration shall become effective and whether
or not all Registrable Securities originally requested to be
included in such registration are withdrawn or otherwise ultimately
not included in such registration, except as otherwise provided
with respect to a Withdrawn Request and a Withdrawn Demand
Registration in Section 2.2(a).
(a) Underwriting; Selection of
Underwriters. Notwithstanding anything to the contrary
contained in Section 2.1(a) or Section 2.2(a), if the Initiating
Holders so elect, the offering of such Registrable Securities
pursuant to a Shelf Registration or a Demand Registration shall be
in the form of a firm commitment Underwritten Offering; and such
Initiating Holders may require that all Persons (including other
Holders) participating in such registration sell their Registrable
Securities to the Underwriters at the same price and on the same
terms of underwriting applicable to the Initiating Holders. If any
Shelf Registration or Demand Registration involves an Underwritten
Offering, the sole or managing Underwriters and any additional
investment bankers and managers to be used in connection with such
registration shall be selected by the Majority Holders of the
Registration, subject to the approval of the Company (such approval
not to be unreasonably withheld).
(b) Underwriting Agreement. If
requested by the sole or lead managing Underwriter for any
Underwritten Offering effected pursuant to a Shelf Registration or
Demand Registration, the Company shall enter into a customary
underwriting agreement with the Underwriters for such offering,
such agreement to be reasonably satisfactory in substance and form
to the Majority Holders of the Registration and to contain such
representations and warranties by the Company and such other terms
as are generally prevailing in agreements of that type, including,
without limitation, indemnification and contribution to the effect
and to the extent provided in Section 5.
(c) Holders of Registrable Securities to
be Parties to Underwriting Agreement. The Holders of
Registrable Securities to be distributed by Underwriters in an
Underwritten Offering contemplated by Section 2 shall be parties to
the underwriting agreement between the Company and such
Underwriters and may, at such Holders’ option, require that
any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of
such Underwriters shall also be made to and for the benefit of such
Holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such Underwriters under
such underwriting agreement be conditions precedent to the
obligations of such Holders of Registrable Securities; provided, however, that the Company shall not be
required to make any representations or warranties with respect to
written information specifically provided by a selling Holder for
inclusion in the Registration Statement. No Holder shall be
required to make any representations or warranties to, or
agreements with, the Company or the Underwriters other than
representations, warranties or agreements regarding such Holder,
such Holder’s Registrable Securities and such Holder’s
intended method of disposition.
7
(d) Priority in Registrations. If a
Shelf Registration or Demand Registration involves an Underwritten
Offering, and the sole or lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise the Company in
writing (with a copy to each Holder requesting registration) on or
before the date five (5) calendar days prior to the date then
scheduled for such offering that, in its opinion, the amount of
Registrable Securities requested to be included in such Shelf
Registration or Demand Registration exceeds the number which can be
sold in such offering within a price range acceptable to the
Majority Holders of the Registration (such writing to state the
basis of such opinion and the approximate number of Registrable
Securities which may be included in such offering), the Company
shall include in such Shelf Registration or Demand Registration, to
the extent of the number which the Company is so advised may be
included in such offering, the Registrable Securities requested to
be included in the Shelf Registration or Demand Registration by the
Holders allocated pro
rata in proportion to the
number of Registrable Securities requested to be included in such
Shelf Registration or Demand Registration by each of them. In the
event the Company shall not, by virtue of this Section 2.5(d),
include in any Shelf Registration or Demand Registration all of the
Registrable Securities of any Holder requesting to be included in
such Shelf Registration or Demand Registration, such Holder may,
upon written notice to the Company given within five (5) calendar
days of the time such Holder first is notified of such matter,
reduce the amount of Registrable Securities it desires to have
included in such Shelf Registration or Demand Registration,
whereupon only the Registrable Securities, if any, it desires to
have included will be so included and the Holders not so reducing
shall be entitled to a corresponding increase in the amount of
Registrable Securities to be included in such Shelf Registration or
Demand Registration.
(e) Participation in Underwritten
Registration. Notwithstanding anything herein to the
contrary, no Person may participate in any underwritten
registration hereunder unless such Person (i) agrees to sell its
securities on the same terms and conditions provided in any
underwritten arrangements approved by the Persons entitled
hereunder to approve such arrangement and (ii) accurately completes
and executes in a timely manner all questionnaires, powers of
attorney, indemnities, custody agreements, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
Notwithstanding
anything to the contrary herein, in order for any Registrable
Securities that are issuable upon the exercise of conversion
rights, options or warrants to be included in any registration
pursuant to Section 2 hereof, the exercise of such conversion
rights, options or warrants must be effected no later than
immediately prior to the closing of any sales under the
Registration Statement pursuant to which such Registrable
Securities are to be sold.
The
Company shall be entitled to postpone a Shelf Registration or a
Demand Registration and to require the Holders of Registrable
Securities to discontinue the disposition of their securities
covered by a Shelf Registration during any Blackout Period (as
defined below) (i) if the Board of Directors of the Company
determines in good faith that effecting such a registration or
continuing such disposition at such time would have a material
adverse effect upon a proposed sale of all (or substantially all)
of the assets of the Company or a merger, reorganization,
recapitalization or similar current transaction materially
affecting the capital structure or equity ownership of the Company,
or (ii) if the Company is in possession of material information
which the Board of Directors of the Company determines in good
faith it is not in the best interests of the Company to disclose in
a Registration Statement at such time; provided, however, that the Company may only
delay a Shelf Registration or a Demand Registration pursuant to
this Section 2.7 by delivery of a Blackout Notice (as defined
below) either (i) under Section 2.1 within thirty (30) calendar
days of delivery of a Shelf Request or (ii) under Section 2.2,
within thirty (30) calendar days of delivery of the Request for
such Registration, as applicable, and may delay a Shelf
Registration or a Demand Registration and require the Holders of
Registrable Securities to discontinue the disposition of their
securities covered by a Shelf Registration only for a reasonable
period of time not to exceed ninety (90) calendar days (or such
earlier time as such transaction is consummated or no longer
proposed or the material information has been made public) (the
“Blackout
Period”). There shall not be more than one Blackout
Period in any twelve (12) month period. The Company shall promptly
notify the Holders in writing (a “Blackout
Notice”) of any decision to postpone a Demand
Registration or a Shelf Registration or to discontinue sales of
Registrable Securities covered by a Shelf Registration pursuant to
this Section 2.7 and shall include a general statement of the
reason for such postponement, an approximation of the anticipated
delay and an undertaking by the Company promptly to notify the
Holders as soon as a Demand Registration or a Shelf Registration
may be effected or sales of Registrable Securities covered by a
Shelf Registration may resume. In making any such determination to
initiate or terminate a Blackout Period, the Company shall not be
required to consult with or obtain the consent of any Holder, and
any such determination shall be the Company’s sole
responsibility. Each Holder shall treat all notices received from
the Company pursuant to this Section 2.7 constituting material
inside information in the strictest confidence and shall not trade
on or disseminate such information. If the Company shall postpone
the filing of a Demand Registration Statement or a Shelf
Registration Statement, the Majority Holders of the Registration
shall have the right to withdraw the request for registration. Any
such withdrawal shall be made by giving written notice to the
Company within thirty (30) calendar days after receipt of the
Blackout Notice. Such withdrawn registration request shall not be
treated as a Shelf Request effected pursuant to Section 2.1 or a
Demand Registration effected pursuant to Section 2.2 (and shall not
be counted towards the number of Demand Registrations effected),
and the Company shall pay all Registration Expenses in connection
therewith.
8
Each
Holder of Registrable Securities agrees, by acquisition of such
Registrable Securities, if timely requested in writing by the sole
or lead managing Underwriter in an Underwritten Offering of any
Registrable Securities (other than in connection with a Shelf
Registration), not to make any short sale of, loan, grant any
option for the purchase of or effect any public sale or
distribution, including a sale pursuant to Rule 144 (or any
successor provision having similar effect) promulgated under the
Securities Act of any Registrable Securities or any other equity
security of the Company (or any security convertible into or
exchangeable or exercisable for any equity security of the Company)
(except as part of such underwritten registration), during the five
(5) Business Days (as such term is used in Regulation M under
the Exchange Act) prior to, and during the time period reasonably
requested by the sole or lead managing Underwriter not to exceed
ninety (90) calendar days beginning on the effective date of the
applicable Registration Statement, unless the sole or lead managing
Underwriter in such Underwritten Offering otherwise agrees;
provided, however, that to the extent the Company
or the sole lead managing Underwriter releases any other Person
from the foregoing or equivalent restrictions in whole or in part
it shall, on the same day, notify the Holders of such release and
such parties shall automatically be released to the same extent:
provided, further, this holdback restriction
shall apply only to those Holders of Registrable Securities who
have elected to sell Registrable Securities they hold in an
Underwritten Offering in respect of which a holdback is requested
by the managing Underwriter.
The
Company agrees that if timely requested in writing by the sole or
lead managing Underwriter in an Underwritten Offering of any
Registrable Securities (other than in connection with a Shelf
Registration), not to make any short sale of, loan, grant any
option for the purchase of or effect any public or private sale or
distribution of any of the Company’s equity securities (or
any security convertible into or exchangeable or exercisable for
any of the Company’s equity securities) during the five (5)
Business Days (as such term is used in Regulation M under the
Exchange Act) prior to, and during the time period reasonably
requested by the sole or lead managing Underwriter not to exceed
ninety (90) calendar days beginning on the effective date of the
applicable Registration Statement (except as part of such
underwritten registration or pursuant to registrations on Forms S-4
or S-8 (or any successor form to such forms)), unless the sole or
lead Managing Underwriter in such Underwritten Offering otherwise
agrees. The Company will use its reasonable best efforts to cause
each director and officer of the Company and each holder of five
percent (5%) or more of the equity securities (or any security
convertible into or exchangeable or exercisable for any of its
equity securities) of the Company to so agree.
Whenever the
Company is required to effect the registration of Registrable
Securities under the Securities Act pursuant to Section 2 of this
Agreement, the Company shall, as expeditiously as
possible:
(a) prepare and file
with the SEC (promptly, and in any event within sixty (60) calendar
days after receipt of a request to register Registrable Securities)
the requisite Registration Statement to effect such registration,
which Registration Statement shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and the Company shall use its best efforts to cause such
Registration Statement to become effective (provided, that the Company may
discontinue any registration of its securities that are not
Registrable Securities, and, under the circumstances specified in
Section 2.3, its securities that are Registrable Securities);
provided, however, that before filing a
Registration Statement or Prospectus or any amendments or
supplements thereto, or comparable statements under securities or
blue sky laws of any jurisdiction, the Company shall (i) provide
Holders’ Counsel and any other Inspector with an adequate and
appropriate opportunity to participate in the preparation of such
Registration Statement and each Prospectus included therein (and
each amendment or supplement thereto or comparable statement) to be
filed with the SEC, which documents shall be subject to the review
and comment of Holders’ Counsel, and (ii) not file any such
Registration Statement or Prospectus (or amendment or supplement
thereto or comparable statement) with the SEC to which
Holders’ Counsel, any selling Holder or any other Inspector
shall have reasonably objected on the grounds that such filing does
not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations
thereunder;
(b) prepare and file
with the SEC such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be
necessary (i) to keep such Registration Statement effective, and
(ii) to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by
such Registration Statement, in each case until such time as all of
such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller(s) thereof
set forth in such Registration Statement; provided, that such periods, in any
event, shall terminate when all Registrable Securities covered by
such Registration Statement have been sold (but not before the
expiration of the ninety (90) calendar day period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable);
9
(c) furnish, without
charge, to each selling Holder of such Registrable Securities and
each Underwriter, if any, of the securities covered by such
Registration Statement, such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case
including all exhibits), and the Prospectus included in such
Registration Statement (including each preliminary Prospectus) in
conformity with the requirements of the Securities Act, and other
documents, as such selling Holder and Underwriter may reasonably
request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such selling Holder (the
Company hereby consenting to the use in accordance with applicable
law of each such Registration Statement (or amendment or
post-effective amendment thereto) and each such Prospectus (or
preliminary prospectus or supplement thereto) by each such selling
Holder of Registrable Securities and the Underwriters, if any, in
connection with the offering and sale of the Registrable Securities
covered by such Registration Statement or Prospectus);
(d) prior to any public
offering of Registrable Securities, use its best efforts to
register or qualify all Registrable Securities and other securities
covered by such Registration Statement under such other securities
or blue sky laws of such jurisdictions as any selling Holder of
Registrable Securities covered by such Registration Statement or
the sole or lead managing Underwriter, if any, may reasonably
request to enable such selling Holder to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such
selling Holder and to continue such registration or qualification
in effect in each such jurisdiction for as long as such
Registration Statement remains in effect (including through new
filings or amendments or renewals), and do any and all other acts
and things which may be necessary or advisable to enable any such
selling Holder to consummate the disposition in such jurisdictions
of the Registrable Securities owned by such selling Holder;
provided, however, 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 Section 4.1(d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in
any such jurisdiction;
(e) use its best
efforts to obtain all other approvals, consents, exemptions or
authorizations from such governmental agencies or authorities as
may be necessary to enable the selling Holders of such Registrable
Securities to consummate the disposition of such Registrable
Securities;
(f) promptly notify
Holders’ Counsel, each Holder of Registrable Securities
covered by such Registration Statement and the sole or lead
managing Underwriter, if any: (i) when the Registration
Statement, any pre-effective amendment, the Prospectus or any
prospectus supplement related thereto or post-effective amendment
to the Registration Statement has been filed and, with respect to
the Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the SEC or
any state securities or blue sky authority for amendments or
supplements to the Registration Statement or the Prospectus related
thereto or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threat of any
proceedings for that purpose, (iv) of the receipt by the Company of
any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the initiation
of any proceeding for such purpose, (v) of the existence of any
fact of which the Company becomes aware or the happening of any
event which results in (A) the Registration Statement containing an
untrue statement of a material fact or omitting to state a material
fact required to be stated therein or necessary to make any
statements therein not misleading, or (B) the Prospectus included
in such Registration Statement containing an untrue statement of a
material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein, in the
light of the circumstances under which they were made, not
misleading, (vi) if at any time the representations and warranties
contemplated by Section 2.5(b) cease to be true and correct in all
material respects and (vii) of the Company’s reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate or that there exists circumstances
not yet disclosed to the public which make further sales under such
Registration Statement inadvisable pending such disclosure and
post-effective amendment; and, if the notification relates to an
event described in any of the clauses (ii) through (vii) of this
Section 4.1(f), the Company shall promptly prepare a supplement or
post-effective amendment to such Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that (1) such Registration
Statement shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (2) as
thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus shall not include
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading (and shall furnish to each such
Holder and each Underwriter, if any, a reasonable number of copies
of such Prospectus so supplemented or amended); and if the
notification relates to an event described in clause (iii) of this
Section 4.1(f), the Company shall take all reasonable action
required to prevent the entry of such stop order or to remove it if
entered;
(g) make available for
inspection by any selling Holder of Registrable Securities, any
sole or lead managing Underwriter participating in any disposition
pursuant to such Registration Statement, Holders’ Counsel and
any attorney, accountant or other agent retained by any such seller
or any Underwriter (each, an “Inspector”
and, collectively, the “Inspectors”),
all financial and other records, pertinent corporate documents and
properties of the Company and any subsidiaries thereof as may be in
existence at such time (collectively, the “Records”) as
shall be necessary, in the opinion of such Holders’ and such
Underwriters’ respective counsel, to enable them to exercise
their due diligence responsibility and to conduct a reasonable
investigation within the meaning of the Securities Act, and cause
the Company’s and any subsidiaries’ officers, directors
and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such
Inspectors in connection with such Registration
Statement;
10
(h) if requested by the
Majority Holders of the Registration, obtain an opinion from the
Company’s counsel and a “cold comfort” letter
from the Company’s independent public accountants who have
certified the Company’s financial statements included or
incorporated by reference in such Registration Statement, in each
case dated the effective date of such Registration Statement (and
if such registration involves an Underwritten Offering, dated the
date of the closing under the underwriting agreement), in customary
form and covering such matters as are customarily covered by such
opinions and “cold comfort” letters delivered to
underwriters in underwritten public offerings, which opinion and
letter shall be reasonably satisfactory to the sole or lead
managing Underwriter, if any, and to the Majority Holders of the
Registration, and furnish to each Holder participating in the
offering and to each Underwriter, if any, a copy of such opinion
and letter addressed to such Holder (in the case of the opinion)
and Underwriter (in the case of the opinion and the “cold
comfort” letter);
(i) provide a CUSIP
number for all Registrable Securities and provide and cause to be
maintained a transfer agent and registrar for all such Registrable
Securities covered by such Registration Statement not later than
the effectiveness of such Registration Statement;
(j) otherwise use its
best efforts to comply with all applicable rules and regulations of
the SEC and any other governmental agency or authority having
jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable but no later than ninety
(90) calendar days after the end of any twelve (12) month period,
an earnings statement (i) commencing at the end of any month in
which Registrable Securities are sold to Underwriters in an
Underwritten Offering and (ii) commencing with the first day of the
Company’s calendar month next succeeding each sale of
Registrable Securities after the effective date of a Registration
Statement, which statement shall cover such twelve (12) month
periods, in a manner which satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(k) if so requested by
the Majority Holders of the Registration, use its best efforts to
cause all such Registrable Securities to be listed on each national
securities exchange on which the Company’s securities are
then listed, if any;
(l) keep each selling
Holder of Registrable Securities advised in writing as to the
initiation and progress of any registration under Section 2
hereunder;
(m) enter into and
perform customary agreements (including, if applicable, an
underwriting agreement in customary form) and provide
officers’ certificates and other customary closing
documents;
(n) cooperate with each
selling Holder of Registrable Securities and each Underwriter
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to
be made with the FINRA and make reasonably available its employees
and personnel and otherwise provide reasonable assistance to the
Underwriters (taking into account the needs of the Company’s
businesses and the requirements of the marketing process) in the
marketing of Registrable Securities in any Underwritten
Offering;
(o) furnish to each
Holder participating in the offering and the sole or lead managing
Underwriter, if any, without charge, at least one manually-signed
copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits
(including those deemed to be incorporated by
reference);
(p) cooperate with the
selling Holders of Registrable Securities and the sole or lead
managing Underwriter, if any, to facilitate the timely preparation
and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and
registered in such names in accordance with the underwriting
agreement prior to any sale of Registrable Securities to the
Underwriters or, if not an Underwritten Offering, in accordance
with the instructions of the selling Holders of Registrable
Securities at least three (3) Business Days prior to any sale of
Registrable Securities;
(q) if requested by the
sole or lead managing Underwriter or any selling Holder of
Registrable Securities, immediately incorporate in a prospectus
supplement or post-effective amendment such information concerning
such Holder of Registrable Securities, the Underwriters or the
intended method of distribution as the sole or lead managing
Underwriter or the selling Holder of Registrable Securities
reasonably requests to be included therein and as is appropriate in
the reasonable judgment of the Company, including, without
limitation, information with respect to the number of shares of the
Registrable Securities being sold to the Underwriters, the purchase
price being paid therefor by such Underwriters and with respect to
any other terms of the Underwritten Offering of the Registrable
Securities to be sold in such offering; make all required filings
of such Prospectus supplement or post-effective amendment as soon
as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by the sole
or lead managing Underwriter of such Registrable Securities;
and
(r) use its best
efforts to take all other steps necessary to expedite or facilitate
the registration and disposition of the Registrable Securities
contemplated hereby.
11
The
Company may require each selling Holder of Registrable Securities
as to which any registration is being effected to furnish to the
Company such information regarding such Holder, such Holder’s
Registrable Securities and such Holder’s intended method of
disposition as the Company may from time to time reasonably request
in writing; provided that
such information shall be used only in connection with such
registration.
If any
Registration Statement or comparable statement under “blue
sky” laws refers to any Holder by name or otherwise as the
Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such Holder and the Company, to
the effect that the holding by such Holder of such securities is
not to be construed as a recommendation by such Holder of the
investment quality of the Company’s securities covered
thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company,
and (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by
counsel, required by the Securities Act or any similar federal
statute or any state “blue sky” or securities law then
in force, the deletion of the reference to such
Holder.
Each
Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 4.1(f)(ii) through (vii), such Holder shall forthwith
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 4.1(f) and, if so
directed by the Company, such Holder shall deliver to the Company
(at the Company’s expense) all copies, other than permanent
file copies, then in such Holder’s possession of the
Prospectus covering such Registrable Securities which is current at
the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to
this Agreement (including, without limitation, the period referred
to in Section 4.1(b)) by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 4.1(f) to and including the date when the Holder shall have
received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 4.1(f), and
the Company shall pay any damages owed pursuant to Section 6.11(a)
hereunder.
The
Company agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each Holder of Registrable Securities, its
officers, directors, partners, members, shareholders, employees,
Affiliates and agents (collectively, “Agents”) and
each Person who controls such Holder (within the meaning of the
Securities Act) and its Agents with respect to each registration
which has been effected pursuant to this Agreement, against any and
all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect
thereof, and expenses (as incurred or suffered and including, but
not limited to, any and all expenses incurred in investigating,
preparing or defending any litigation or proceeding, whether
commenced or threatened, and the reasonable fees, disbursements and
other charges of legal counsel) in respect thereof (collectively,
“Claims”),
insofar as such Claims arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary,
final or summary prospectus and any amendment or supplement
thereto) related to any such registration or any omission or
alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
or any violation by the Company of the Securities Act or any rule
or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any
such registration, or any qualification or compliance incident
thereto; provided, however, that the Company will not be liable in
any such case to the extent that any such Claims arise out of or
are based upon any untrue statement or alleged untrue statement of
a material fact or omission or alleged omission of a material fact
so made in reliance upon and in conformity with written information
furnished to the Company in an instrument duly executed by such
Holder specifically stating that it was expressly for use therein.
The Company shall also indemnify any Underwriters of the
Registrable Securities, their Agents and each Person who controls
any such Underwriter (within the meaning of the Securities Act) to
the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Person who may be
entitled to indemnification pursuant to this Section 5 and shall
survive the transfer of securities by such Holder or
Underwriter.
12
Each
Holder, if Registrable Securities held by it are included in the
securities as to which a registration is being effected, agrees to,
severally and not jointly, indemnify and hold harmless, to the
fullest extent permitted by law, the Company, its directors and
officers, each other Person who participates as an Underwriter in
the offering or sale of such securities and its Agents and each
Person who controls the Company or any such Underwriter (within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) and its Agents against any and all Claims,
insofar as such Claims arise out of or are based upon any untrue or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary,
final or summary prospectus and any amendment or supplement
thereto) related to such registration, 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, to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company
in an instrument duly executed by such Holder specifically stating
that it was expressly for use therein; provided, however, that the aggregate amount
which any such Holder shall be required to pay pursuant to this
Section 5.2 shall in no event be greater than the amount of the net
proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Registration Statement giving rise to
such Claims less all amounts previously paid by such Holder with
respect to any such Claims. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of such indemnified party and shall survive the transfer of
such securities by such Holder or Underwriter.
Promptly after
receipt by an indemnified party of notice of any Claim or the
commencement of any action or proceeding involving a Claim under
this Section 5, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party pursuant to
Section 5, (i) notify the indemnifying party in writing of the
Claim or the commencement of such action or proceeding;
provided, that the failure
of any indemnified party to provide such notice shall not relieve
the indemnifying party of its obligations under this Section 5,
except to the extent the indemnifying party is materially and
actually prejudiced thereby and shall not relieve the indemnifying
party from any liability which it may have to any indemnified party
otherwise than under this Section 5, and (ii) permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any indemnified party
shall have the right to employ separate counsel and to participate
in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless
(A) the indemnifying party has agreed in writing to pay such fees
and expenses, (B) the indemnifying party shall have failed to
assume the defense of such claim and employ counsel reasonably
satisfactory to such indemnified party within ten (10) calendar
days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so, (C) in the
reasonable judgment of any such indemnified party, based upon
advice of counsel, a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such
claims (in which case, if the indemnified party notifies the
indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim
on behalf of such indemnified party) or (D) such indemnified party
is a defendant in an action or proceeding which is also brought
against the indemnifying party and reasonably shall have concluded
that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying
party. No indemnifying party shall be liable for any settlement of
any such claim or action effected without its written consent,
which consent shall not be unreasonably withheld. In addition,
without the consent of the indemnified party (which consent shall
not be unreasonably withheld), no indemnifying party shall be
permitted to consent to entry of any judgment with respect to, or
to effect the settlement or compromise of any pending or threatened
action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim), unless such
settlement, compromise or judgment (1) includes an unconditional
release of the indemnified party from all liability arising out of
such action or claim, (2) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party, and (3) does not provide for any
action on the part of any party other than the payment of money
damages which is to be paid in full by the indemnifying
party.
If the
indemnification provided for in Section 5.1 or 5.2 from the
indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold
harmless, an indemnified party hereunder in respect of any Claim,
then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such Claim in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on
the other hand, in connection with the actions which resulted in
such Claim, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party
shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the
parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such action. If, however, the
foregoing allocation is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative
benefits of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations.
13
The parties hereto
agree that it would not be just and equitable if contribution
pursuant to this Section 5.4 were determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
The amount paid or payable by a party as a result of any Claim
referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth in Section 5.3,
any legal or other fees, costs or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
Notwithstanding anything in this Section 5.4 to the contrary, no
indemnifying party (other than the Company) shall be required
pursuant to this Section 5.4 to contribute any amount in excess of
the net proceeds received by such indemnifying party from the sale
of the Registrable Securities pursuant to the Registration
Statement giving rise to such Claims, less all amounts previously
paid by such indemnifying party with respect to such Claims. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Indemnification
similar to that specified in the preceding Sections 5.1 and 5.2
(with appropriate modifications) shall be given by the Company and
each selling Holder of Registrable Securities with respect to any
required registration or other qualification of securities under
any Federal or state law or regulation of any governmental
authority, other than the Securities Act. The indemnity agreements
contained herein shall be in addition to any other rights to
indemnification or contribution which any indemnified party may
have pursuant to law or contract.
The
indemnification and contribution required by this Section 5 shall
be made by periodic payments of the amount thereof during the
course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is
incurred.
The
Company agrees that it shall not effect or permit to occur any
combination or subdivision of shares which would adversely affect
the ability of the Holder of any Registrable Securities to include
such Registrable Securities in any registration contemplated by
this Agreement or the marketability of such Registrable Securities
in any such registration.
The
Company has not previously entered into an agreement with respect
to its securities granting any registration rights to any Person.
If the Company shall at any time hereafter provide to any holder of
any securities of the Company rights with respect to the
registration of such securities under the Securities Act, (i) such
rights shall not be in conflict with or adversely affect any of the
rights provided in this Agreement to the Holders and (ii) such
rights may only be on terms or conditions more favorable to such
holder than the terms and conditions provided in this Agreement,
with the consent of the Majority Holders and in such case, the
Company shall provide (by way of amendment to this Agreement or
otherwise) such more favorable terms or conditions to the
Holders.
The
Company covenants that it shall timely file any reports required to
be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and
15(d) of the Exchange Act referred to in subparagraph (c) of Rule
144 promulgated under the Securities Act), and that it shall take
such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 and Rule 144A promulgated under
the Securities Act, as such rules may be amended from time to time,
or (ii) any other rule or regulation now existing or hereafter
adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such
requirements.
The
provisions of this Agreement may not be amended, modified,
supplemented or terminated, and waivers or consents to departures
from the provisions hereof may not be given, without the written
consent of the Company and the Majority Holders, provided, however, that no such amendment,
modification, supplement, waiver or consent to departure shall
reduce the aforesaid percentage of Registrable Securities without
the written consent of all of the Holders of Registrable
Securities; and provided,
further, that to the extent
any Holder would be disproportionately adversely affected by such
amendment or waiver, then such Holder’s consent shall also be
required. Nothing herein shall prohibit any amendment,
modification, supplement, termination, waiver or consent to
departure the adverse effect of which is limited only to those
Holders who have agreed to such amendment, modification,
supplement, termination, waiver or consent to
departure.
14
All
notices and other communications provided for or permitted
hereunder shall be deemed to be sufficient if contained in a
written instrument and shall be deemed to have been duly given when
delivered in person, by telecopy, by facsimile, by
nationally-recognized overnight courier, or by first class
registered or certified mail, postage prepaid, addressed to such
party at the address set forth below or such other address as may
hereafter be designated in writing by the addressee as
follows:
(i)
If to the Company,
to:
DynaResource,
Inc.
000 X.
Xxx Xxxxxxx Xxxx.
Xxxxx
0000 Xxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: K.W.
(“K.D.”) Diepholz
With a
copy to:
Xxxxxx
& Xxxxx, L.L.P.
0000
Xxxx Xxxxx, 000 X. Xxxxx
Xxxxxx,
Xxxxx 00000
Attention: Xxxxx X.
Xxxxx
Fax
Number: (000) 000-0000
(ii)
If to the Investor,
to:
Golden
Post Rail, LLC
0000
Xxxx Xxx Xxxxx
Xxxxxxxx, XX
00000
Attention: Xxxxxxx
Xxxx
With a
copy to:
Xxxxxx
and Xxxxx, LLP
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention: Xxxx X.
Xxxxxx
Fax
Number: (000) 000-0000
(iii)
If to any
subsequent Holder, to the address of such Person set forth in the
records of the Company.
All
such notices, requests, consents and other communications shall be
deemed to have been delivered (a) in the case of personal delivery
or delivery by telecopy or facsimile, on the date of such delivery,
(b) in the case of nationally-recognized overnight courier, on the
next Business Day and (c) in the case of mailing, on the third
(3rd) Business Day following such mailing if sent by certified
mail, return receipt requested.
15
This
Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors and permitted
assigns (including any permitted transferee of Registrable
Securities). Any Holder may assign to any transferee of its
Registrable Securities (other than a transferee that acquires such
Registrable Securities in a registered public offering or a sale
pursuant to Rule 144 promulgated under the Securities Act (or any
successor rule)), its rights and obligations under this Agreement;
provided, however, if any transferee shall take
and hold Registrable Securities, such transferee shall promptly
notify the Company and by taking and holding such Registrable
Securities such transferee shall automatically be entitled to
receive the benefits of and be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of
this Agreement as if it were a party hereto (and shall, for all
purposes, be deemed a Holder under this Agreement). If the Company
shall so request, any heir, successor or assign (including any
transferee) shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof. For
purposes of this Agreement, “successor” for any entity
other than a natural person shall mean a successor to such entity
as a result of such entity’s merger, consolidation, sale of
substantially all of its assets, or similar transaction.
Notwithstanding any contrary provision herein, the Company, in
consultation with and subject to the consent of the Investor, may
permit any Person who subsequently acquires Registrable Securities
to become a “Holder” hereunder by executing a Joinder
Agreement, in substantially the form attached hereto as
Exhibit
A.
This
Agreement may be executed in two or more counterparts, each of
which, when so executed and delivered, shall be deemed to be an
original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
The
headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning of terms
contained herein. Unless the context of this Agreement otherwise
requires: (i) words of any gender shall be deemed to include each
other gender; (ii) words using the singular or plural number shall
also include the plural or singular number, respectively; (iii) the
words “hereof”, “herein” and
“hereunder” and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and
paragraph references are to the Sections and paragraphs of this
Agreement unless otherwise specified; (iv) the word
“including” and words of similar import when used in
this Agreement shall mean “including, without
limitation,” unless otherwise specified; (v) “or”
is not exclusive and (vi) provisions apply to successive events and
transactions.
In the
event that any one or more of the provisions, paragraphs, words,
clauses, phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision, paragraph, word, clause,
phrase or sentence in every other respect and of the other
remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being
intended that all rights, powers and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by
law.
This
Agreement will be governed by and construed in accordance with the
domestic laws of the State of Texas, without giving effect to any
choice of law or conflicting provision or rule (whether of the
State of Texas, or any other jurisdiction) that would cause the
laws of any jurisdiction other than the State of Texas to be
applied. In furtherance of the foregoing, the internal law of the
State of Texas will control the interpretation and construction of
this Agreement, even if under such jurisdiction’s choice of
law or conflict of law analysis, the substantive law of some other
jurisdiction would ordinarily apply.
16
(a) If: (i) the Company
is required to file a Registration Statement pursuant to Section 2
of this Agreement and fails to file such Registration Statement
with the SEC within sixty (60) calendar days of receipt of a
request to register the Registrable Securities, (ii) the Company
fails to file with the SEC a request for acceleration of a
Registration Statement in accordance with Rule 461 promulgated
under the Securities Act within five (5) calendar days of the date
that the Company is notified (orally or in writing, whichever is
earlier) by the SEC that such Registration Statement will not be
“reviewed” or will not be subject to further review,
(iii) prior to the effective date of a Registration Statement, the
Company fails to file a pre-effective amendment and otherwise
respond in writing to comments made by the SEC in respect of such
Registration Statement within twenty (20) calendar days of the
receipt of comments by, or notice from, the SEC that such amendment
is required in order for such Registration Statement to be declared
effective, (iv) a Registration Statement that has been filed with
the SEC is not declared effective by the SEC within one hundred
twenty (120) calendar days of the date such Registration Statement
was filed or (v) in the case of a Shelf Registration Statement or a
Demand Registration Statement for an offering on a delayed or
continuous basis pursuant to Rule 415 promulgated under the
Securities Act, such Registration Statement ceases for any reason,
including due to a Blackout Notice, to remain continuously
effective as to all Registrable Securities included in such
Registration Statement, or the Holders are otherwise not permitted
to utilize the Prospectus therein to resell such Registrable
Securities, for more than twenty (20) consecutive calendar days or
more than an aggregate of thirty (30) calendar days (which need not
be consecutive calendar days) during any twelve (12) month period,
(any such failure or breach being referred to as an
“Event”, and for purposes of clauses (i) and (iv), the
date on which such Event occurs, and for purpose of clause (ii) the
date on which such five (5) calendar day period is exceeded, and
for purpose of clause (iii) the date which such twenty (20)
calendar day period is exceeded, and for purpose of clause (v) the
date on which such twenty (20) or thirty (30) calendar day period,
as applicable, is exceeded being referred to as “Event Date”),
then, in addition to any other rights the Holders may have
hereunder or under applicable law, on each monthly anniversary of
each such Event Date (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured, the
Company shall pay to the Holders (apportioned on a pro rata basis
by the percentage of Registrable Securities that are not then
covered by a Registration Statement owned by each Holder) an amount
in cash, as partial liquidated damages and not as a penalty, equal
to the product of (1) the product of (A) one and one-half percent
(1.5%) multiplied by (B) the quotient of (I) the number of each
Holders’ Registrable Securities that are not then covered by
a Registration Statement that is then effective and available for
use by the Holders divided by (II) the total number of the
Holders’ Registrable Securities multiplied by (2) the
aggregate purchase price paid by the Investor pursuant to the
Series C Purchase Agreement and the Purchase Agreement, as
applicable; provided,
however, that, in the event
that none of the Holders’ Registrable Securities are then
covered by a Registration Statement that is effective and available
for use by the Holders, the quotient of (I) divided by (II) in
clause (1)(B) herein shall be deemed to equal 1. The parties agree
that the maximum aggregate liquidated damages payable to the
Holders under this Agreement shall be nine percent (9%) of the
aggregate amount paid by the Investor pursuant to the Series C
Purchase Agreement and the Purchase Agreement, as applicable. If
the Company fails to pay any partial liquidated damages pursuant to
this Section 6.11(a) in full within seven (7) calendar days after
the date payable, the Company will pay interest thereon at a rate
of eighteen percent (18%) per annum (or such lesser maximum amount
that is permitted to be paid by applicable law) to the Holders,
accruing daily from the date such partial liquidated damages are
due until such amounts, plus all such interest thereon, are paid in
full. The partial liquidated damages pursuant to the terms hereof
shall apply on a daily pro rata basis for any portion of a month
prior to the cure of an Event.
(b) Notwithstanding
Section 6.11(a), the parties hereto acknowledge that money damages
would not be an adequate remedy at law if any party fails to
perform in any material respect any of its obligations hereunder,
and accordingly agree that each party, in addition to any other
remedy to which it may be entitled pursuant to Section 6.11(a), at
law or in equity, shall be entitled to seek to compel specific
performance of the obligations of any other party under this
Agreement, without the posting of any bond, in accordance with the
terms and conditions of this Agreement in any court of the United
States or any State thereof having jurisdiction, and if any action
should be brought in equity to enforce any of the provisions of
this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law. An Event shall constitute
a breach of this Agreement entitling the Holders to remedies
hereunder.
(c) Except as otherwise
provided by law, a delay or omission by a party hereto in
exercising any right or remedy granted pursuant to this Agreement
shall not impair the right or remedy or constitute a waiver of or
acquiescence in any such breach. No remedy provided hereunder, by
law or in equity shall be exclusive of any other remedy. All
available remedies under shall be cumulative.
This
Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions,
promises, representations, warranties, covenants or undertakings
relating to such subject matter, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements
and understandings between the Company and the other parties to
this Agreement with respect to such subject matter.
In the
event that any Registrable Securities are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its
election in writing delivered to the Company, be treated as the
holder of such Registrable Securities for purposes of any request
or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any holder
or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so
elects, the Company may require assurances reasonably satisfactory
to it of such owner’s beneficial ownership of such
Registrable Securities.
17
(a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself
or himself and its or his property, to the exclusive jurisdiction
of any Texas state court sitting in Dallas county or federal court
of the United States of America sitting in Dallas county, and any
appellate court presiding thereover, in any action or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereunder or thereunder or for recognition or
enforcement of any judgment relating thereto, and each of the
parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard
and determined in any such Texas state court or, to the extent
permitted by law, in any such federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Each of the parties
hereto irrevocably and unconditionally waives, to the fullest
extent it or he may legally and effectively do so, any objection
that it or he may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereunder or thereunder
in any State or federal court sitting in Dallas county. Each of the
parties hereto irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
The
parties hereto further agree that the notice of any process
required by any such court in the manner set forth in Section 6.5
shall constitute valid and lawful service of process against them,
without the necessity for service by any other means provided by
law.
Each
party hereto shall do and perform or cause to be done and performed
all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
The
Company will not hereafter enter into any agreement which is
inconsistent with the rights granted to the Holders in this
Agreement.
The
Company and the Investor acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and
that this Agreement shall be construed as if jointly drafted by the
Company and the Holders.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
|
DYNARESOURCE,
INC.
|
|
|
GOLDEN POST RAIL,
LLC:
|
|
|
By:
___________________________
|
|
|
By: ___________________________
|
|
|
Name: K.W.
(“K.D.”) Diepholz
|
|
|
Name:
Xxxxxxx
X. Xxxx
|
|
|
Title:
Chairman &
CEO
|
|
|
Title: Manager, President,
Secretary & Treasurer
|
|
Exhibit A
JOINDER AGREEMENT
TO
This
Joinder Agreement to Registration Rights Agreement is made and
entered into as of _________, 202_ (the “Agreement”) by
and between DynaResource, Inc., a Delaware corporation (the
“Company”), and
the person listed on the signature page hereto under the heading
“Holder” (such person being referred to as the
“Holder”).
WHEREAS, to provide
for certain registration rights with respect to certain of the
Company’s securities, the Company and Golden Post Rail, LLC
have executed that certain Amended and Restated Registration Rights
Agreement dated as of May ___,
2020 (the “Registration Rights
Agreement”);
WHEREAS,
capitalized terms used but not otherwise defined herein shall
have the meanings set forth in the
Registration Rights Agreement; and
WHEREAS, Holder
desires to become a party to the Registration Rights
Agreement.
NOW,
THEREFORE, in consideration of the foregoing, the delivery to and
receipt by Holder of Registrable Securities, the covenants and
agreements contained herein and other good and valuable
consideration, the receipt, adequacy and sufficiency of which is
hereby acknowledged, Holder hereby agrees as follows:
1. Holder
hereby executes this Agreement for the purpose of becoming a
“Holder” under the Registration Rights Agreement.
Holder hereby assumes all of the duties, obligations and
liabilities of a “Holder” under the Registration Rights
Agreement.
2. Holder
shall be deemed a “Holder” for all purposes under the
Registration Rights Agreement, and shall be subject to and shall
benefit from all of the rights and obligations of a
“Holder” thereunder. All references in the Registration
Rights Agreement to “Holder” shall mean and be a
reference to Holder. The Registration Rights Agreement is hereby
amended by deeming the signature of Holder hereto as a signature to
the Registration Rights Agreement.
3. This
Agreement shall be governed by and construed in accordance with the
laws of the State of Texas, without regard to principles of
conflicts of law.
* * * *
*
20
IN
WITNESS WHEREOF, this Agreement has been executed and delivered as
of the date above first written.
|
|
DYNARESOURCE, INC. |
|
|
|
|
|
|
|
|
|
By:
|
___________________________ |
|
|
|
|
Name: |
|
|
|
|
Title: |
|
|
|
|
|
|
|
|
HOLDER:
|
|
|
|
|
|
___________________________ |
|
|
|
|
Name: |
|
21
