REGISTRATION RIGHTS AGREEMENT
Exhibit 10.4
This REGISTRATION RIGHTS AGREEMENT, dated May ___, 2006 (this “Agreement”), between XXXXXXXX
MARITIME LIMITED, a Xxxxxxxx Islands corporation (the “Company”), Xxxxxxx Xxxx & Co., LLC and
Fortis Securities LLC (the “Placement Agents”) on behalf of the investors (the “Investors”), under
those certain subscription agreements between the Company and the Investors (the “Subscription
Agreements”). In order to induce the Investors to enter into the Subscription Agreements, the
Company has agreed to provide the registration rights set forth in this Agreement.
Section 1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Subscription Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Affiliate” means with respect to any specified person, an “affiliate,” as defined in Rule
144(a)(1), of such person.
“Amendment Effectiveness Deadline Date” has the meaning set forth in Section 2(d)(i) hereof.
“Authorized Agent” has the meaning set forth in Section 9(k) hereof.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in the City of New York are authorized or obligated by law or executive
order to close.
“Class A Warrant” means those warrants issued by the Company with a three (3) year term and
exercisable for one share of Common Stock at an exercise price of $8.00 per share of Common Stock.
“Closing Date” means the date hereof.
“Common Stock” means the shares of common stock, $.01 par value, of the Company, and any other
securities as may constitute “Common Stock” for purposes of the Statement of Designations,
including the Underlying Common Stock.
“Damages Accrual Period” has the meaning set forth in Section 2(e) hereof.
“Damages Payment Date” means each February 28, May 30, August 31 and November 30.
“Deferral Notice” has the meaning set forth in Section 3(i) hereof.
“Deferral Period” has the meaning set forth in Section 3(i) hereof.
“Dividend Payment Date” has the meaning assigned to such term in the Statement of
Designations.
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“Effectiveness Deadline Date” means the date that is one hundred twenty (120) days after the
Closing Date; provided, that, if (a) the SEC reviews and has written comments to
the filed Registration Statement, (b) the Company responds to such written comments within the
earlier of (i) thirty (30) days after receipt thereof and (ii) the date that is one hundred twenty
(120) days after the Closing Date and (c) the Registration Statement is not declared effective by
the SEC by the date that is one hundred twenty (120) days after the Closing Date, then the
Effectiveness Deadline Date shall be the date that is one hundred eighty (180) days after the
Closing Date.
“Effectiveness Period” means the period commencing on the date the Registration Statement is
declared effective by the SEC and ending on the date that all Registrable Securities have ceased to
be Registrable Securities.
“Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.
“Holder” means a holder of shares of Preferred Stock or Underlying Common Stock.
“Liquidated Damages” has the meaning set forth in Section 2(e) hereof.
“Liquidation Preference” means a liquidation preference in the amount of $93.75 per share of
Preferred Stock plus declared and unpaid dividends payable to the holders of shares of Preferred
Stock in the event of the Company’s voluntary or involuntary liquidation, winding up or
dissolution.
“Losses” has the meaning set forth in Section 6(d) hereof.
“Material Event” has the meaning set forth in Section 3(i) hereof.
“Memorandum” has the meaning set forth in the Subscription Agreement.
“New York Court” has the meaning set forth in Section 9(k) hereof.
“Notice Holder” means, on any date, any Holder that has delivered a completed and signed
Notice and Questionnaire to the Company on or prior to such date.
“Notice and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the notice and questionnaire attached as Annex II to
the Subscription Agreement.
“Preferred Stock” means the 12% Mandatorily Convertible Preferred Stock, liquidation
preference $93.75 per share, of the Company that has the rights, powers and preferences set forth
in the Statement of Designations.
“Prospectus” means the prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon Rule 430A promulgated under the 1933
Act), as amended or supplemented by any amendment or prospectus
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supplement, including post-effective amendments, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Prospectus.
“Record Date” has the meaning assigned to such term in the Statement of Designations.
“Record Holder” means (i) with respect to any Damages Payment Date relating to any Preferred
Stock as to which any such Liquidated Damages have accumulated, the holder of record of such share
of Preferred Stock on the Record Date with respect to the Dividend Payment Date on which such
Damages Payment Date shall occur and (ii) with respect to any Damages Payment Date relating to the
Underlying Common Stock as to which any such Liquidated Damages have accrued, the registered holder
of such Underlying Common Stock on the Record Date immediately preceding the relevant Damages
Payment Date.
“Registrable Securities ” means the Units, the shares of Preferred Stock until any such share
of Preferred Stock has been converted into the Underlying Common Stock, the Class A Warrants until
any such Warrant has been exercised for the Underlying Common Stock and, at all times subsequent to
any such conversion or exercise, as the case may be, the Class A Warrants, the Underlying Common
Stock and any securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend, split,
reclassification or similar event until, in the case of any such security, (A) the earliest of (i)
its effective registration under the 1933 Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be applicable thereto under
Rule 144(k) to a sale by a non-Affiliate of the Company or (iii) its sale to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the 1933 Act, and (B) as
a result of the event or circumstance described in any of the foregoing clauses (A)(i) through
(iii), the legend with respect to transfer restrictions therein is removed or removable in
accordance with the terms of such legend.
“Registration Default” has the meaning set forth in Section 2(e) hereof.
“Registration Expenses” has the meaning set forth in Section 5 hereof.
“Registration Statement” means any appropriate registration statement of the Company that
covers any of the Registrable Securities pursuant to the provisions of this Agreement including the
Prospectus, amendments and supplements to such registration statement, including post-effective
amendments, all exhibits, and all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such registration statement.
“Restricted Securities” means “Restricted Securities” as defined in Rule 144.
“Rule 144” means Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
or any successor or similar rule or regulation hereafter adopted by the SEC.
“Rule 144A” means Rule 144A under the 1933 Act, as such Rule may be amended from time to time,
or any successor or similar rule or regulation hereafter adopted by the SEC.
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“Registration Statement” has the meaning set forth in Section 2(a) hereof.
“SEC” means the Securities and Exchange Commission.
“Special Counsel” means a nationally recognized law firm experienced in securities law matters
designated by the Company, with the written consent of the Placement Agents (which shall not be
unreasonably withheld), the reasonable fees and expenses of which will be paid by the Company
pursuant to Section 5 hereof, or one such other successor counsel as shall be specified by the
Holders of a majority of the Registrable Securities.
“Statement of Designations” means the Statement of Designations, dated as of May ___, 2006
setting forth the preferences and rights, qualifications, limitations and restrictions of the
Preferred Stock.
“Subsequent Registration Statement” has the meaning set forth in Section 2(b) hereof.
“Transfer Agent” means Computershare Investor Services LLC, the Transfer Agent for the
Preferred Stock or any successor Transfer Agent pursuant to the terms of the Statement of
Designations.
“Underlying Common Stock” means the Common Stock into which the Preferred Stock is convertible
or that is issued upon any such conversion and the Common Stock issuable upon exercise of the Class
A Warrants.
“Units” means one (1) share of Preferred Stock and four (4) Warrants.
“1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Section 2. Registration.
(a) The Company shall prepare and file or cause to be prepared and filed with the SEC, by the
date (the “Filing Deadline Date”) sixty (60) days after the Closing Date, a registration statement
for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act (a
“Registration Statement”) registering the resale from time to time by Holders thereof of all of the
Registrable Securities. The Registration Statement shall be on Form X-0, X-0 or another
appropriate form permitting registration of such Registrable Securities for resale by such Holders.
The Company shall use its commercially reasonable efforts to cause the Registration Statement to
be declared effective under the 1933 Act as promptly as is practicable but in any event by the
Effectiveness Deadline Date, and, to keep the Registration Statement (or any Subsequent
Registration Statement) continuously effective under the 1933 Act until the expiration of the
Effectiveness Period. At the time the Registration Statement is declared effective, each Holder
that became a Notice Holder on or prior to the date ten (10) Business Days prior to such time of
effectiveness shall be named as a selling security holder in the Registration
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Statement and the related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable law. None of the
Company’s security holders (other than the Holders of Registrable Securities) shall have the right
to include any of the Company’s securities in the Registration Statement.
(b) If the Registration Statement or any Subsequent Registration Statement ceases to be
effective for any reason at any time during the Effectiveness Period (other than because all
Registrable Securities registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its commercially reasonable
efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in
any event shall within thirty (30) days of such cessation of effectiveness amend the Registration
Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Registration Statement covering all of the securities
that as of the date of such filing are Registrable Securities (a “Subsequent Registration
Statement”). If a Subsequent Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Registration Statement (or
Subsequent Registration Statement) continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Registration Statement, if required by the 1933 Act or as necessary to name a Notice Holder as a
selling security holder pursuant to Section 2(d) below.
(d) At the time the Registration Statement is declared to be effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to such time of
effectiveness shall be named as a selling security holder in the Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law, subject to the terms and
conditions hereof. Following the date that the Registration Statement is declared effective, each
Holder that is not a Notice Holder wishing to sell Registrable Securities pursuant to the
Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least five (5) Business Days prior to any intended distribution by it of Registrable
Securities under the Registration Statement. From and after the date the Registration Statement is
declared effective, the Company shall, as promptly as practicable after the date a Notice and
Questionnaire is delivered, and in any event upon the later of (x) five (5) Business Days after
such date or (y) five (5) Business Days after the expiration of any Deferral Period in effect when
the Notice and Questionnaire is delivered or put into effect within five (5) Business Days of such
delivery date:
(i) if required by applicable law, file with the SEC a post-effective amendment to the
Registration Statement or prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document incorporated therein by reference
or file with the SEC any other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling security holder in the Registration Statement and the related
Prospectus in such a manner as to permit such Holder to
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deliver such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the Registration
Statement, use its commercially reasonable efforts to cause such post-effective amendment to be
declared effective under the 1933 Act as promptly as is practicable, but in any event by the date
(the “Amendment Effectiveness Deadline Date”) that is thirty (30) days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the 1933 Act
of any post-effective amendment filed pursuant to Section 2(d)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance
with this Section 2(d) and Section 3(i) of this Agreement. Notwithstanding anything contained
herein to the contrary, (i) the Company shall be under no obligation to name any Holder that is not
a Notice Holder as a selling security holder in any Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten (10) Business
Days from the expiration of a Deferral Period (and the Company shall incur no obligation to pay
Liquidated Damages during such extension) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.
(e) Each event described in any of the following clauses (i) through (iv) is individually
referred to herein as a “Registration Default”:
(i) the Registration Statement has not been filed on or prior to the Filing Deadline Date;
(ii) the Registration Statement has not been declared effective under the 1933 Act on or prior
to the Effectiveness Deadline Date;
(iii) the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof; or
(iv) the number of Deferral Periods in any period exceeds the number permitted in respect of
such period pursuant to Section 3(i) hereof.
For purposes of this Agreement, each Registration Default set forth above shall begin on the dates
set forth in the table set forth below and shall continue until the ending dates set forth in the
table below:
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| Type of | ||||
| Registration | ||||
| Default by | ||||
| Clause | Beginning Date | Ending Date | ||
(i)
|
Filing Deadline Date | the date the Registration Statement is filed | ||
(ii)
|
Effectiveness Deadline Date | the date the Registration Statement becomes effective under the 1933 Act |
||
(iii)
|
the date on which the aggregate duration of Deferral Periods in any period exceeds the number of days permitted by Section 3(i) | termination of the Deferral Period that caused the limit on the aggregate duration of Deferral Periods to exceed the number of days permitted pursuant to Section 3(i) | ||
(iv)
|
the date of commencement of a Deferral Period that causes the number of Deferral Periods to exceed the number permitted by Section 3(i) | termination of the Deferral Period that caused the number of Deferral Periods to exceed the number permitted |
Commencing on (and including) any date that a Registration Default has begun and ending on (but
excluding) the next date on which there are no Registration Defaults that have occurred and are
continuing (a “Damages Accrual Period”), the Company shall pay, as liquidated damages and not as a
penalty, to Record Holders of Registrable Securities an amount (the “Liquidated Damages”) accruing,
for each day in the Damages Accrual Period, (i) in respect of any share of Preferred Stock, at a
rate equal to 0.25% per annum of the $93.75 liquidation amount of the Preferred Stock for the first
60-day period following a Registration Default, and thereafter equal to 0.50% per annum of the
$93.75 liquidation amount of the Preferred Stock, in each case to but excluding the date on which
all Registration Defaults have been cured, and (ii) if the Preferred Stock has been converted into
shares of Common Stock, in respect of any share of Common Stock issued in the conversion, at a rate
per annum equal to the applicable above-referenced calculated rate or rates for the applicable
above referenced period or periods divided by a number equal to the number of shares of Common
Stock into which each share of Preferred Stock was converted pursuant to the conversion. In
calculating the Liquidated Damages on any date on which no Preferred Stock is outstanding, the
Liquidation Preference and the Liquidated Damages shall be calculated as if the Preferred Stock
were still outstanding. Notwithstanding the foregoing, no Liquidated Damages shall cumulate as to
any Registrable Security from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate of accumulation of
the Liquidated Damages with respect to any period shall not exceed the rate provided for in this
paragraph notwithstanding the occurrence of multiple concurrent Registration Defaults.
Notwithstanding the foregoing, no Liquidated Damages shall be payable to any Holder that does not
fulfill its obligations under Section 4 hereof.
The Liquidated Damages shall cumulate from the first day of the applicable Damages Accrual Period,
and shall be payable in cash on each Damages Payment Date during the Damages Accrual Period to the
Record Holder of the Registrable Securities on the Record Date immediately preceding the applicable
Damages Payment Date (and on the Damages Payment Date next succeeding the end of the Damages
Accrual Period if the Damages Accrual Period
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does not end on a Damages Payment Date) to the Record Holders of the Registrable Securities as of
the date that such Damages Accrual Period ends; provided, that, in the case of a Registration
Default of the type described in clause (iii) or (iv) of the first paragraph of this Section 2(e),
such Liquidated Damages shall be paid only to the Holders entitled thereto pursuant to such first
paragraph by check mailed to the address set forth in the Notice and Questionnaire delivered by
such Holder. Notwithstanding the foregoing, the parties agree that the sole damages payable for a
violation of the terms of this Agreement with respect to which Liquidated Damages are expressly
provided shall be such Liquidated Damages.
All of the Company’s obligations set forth in this Section 2(e) that are outstanding with respect
to any Registrable Security at the time such security ceases to be a Registrable Security shall
survive until such time as all such obligations with respect to such security have been satisfied
in full (notwithstanding termination of this Agreement pursuant to Section 9(j)).
The parties hereto agree that the Liquidated Damages provided for in this Section 2(e) constitute a
reasonable estimate of the damages that may be incurred by Holders of Registrable Securities by
reason of the failure of the Registration Statement to be filed or declared effective or available
for effecting resale’s of Registrable Securities in accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with the registration obligations of the
Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the SEC a Registration Statement on any appropriate form under the
1933 Act available for the sale of the Registrable Securities by the Holders thereof in accordance
with the intended method or methods of distribution thereof, and use its commercially reasonable
efforts to cause such Registration Statement to become effective and remain effective as provided
herein; provided that before filing any Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Placement Agents and the Special Counsel of such
offering, if any, copies of all such documents proposed to be filed and use its commercially
reasonable efforts to reflect in each such document when so filed with the SEC such comments as the
Placement Agents or the Special Counsel, if any, reasonably shall propose within five (5) Business
Days of the delivery of such copies to the Placement Agents and the Special Counsel.
(b) Prepare and file with the SEC such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the 1933 Act; and use its commercially
reasonable efforts to comply with the provisions of the 1933 Act applicable to it with respect to
the disposition of all securities covered by such Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders, the Placement Agents and the
Special Counsel, (i) when any Prospectus, prospectus supplement,
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Registration Statement or post-effective amendment to a Registration Statement has been filed
with the SEC and, with respect to a Registration Statement or any post-effective amendment, when
the same has been declared effective, (ii) of any request, following the effectiveness of the
Registration Statement under the 1933 Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, (v) of the occurrence of a Material Event, (vi)
of a pending proceeding against the Company under Section 8A of the 1933 Act in connection with the
offering of the Registrable Securities and (vii) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with the SEC, which notice may,
at the discretion of the Company (or as required pursuant to Section 3(i)), state that it
constitutes a Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of the Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either case at the earliest
possible moment, and provide immediate notice to each Notice Holder and the Placement Agents of the
withdrawal of any such order.
(e) If reasonably requested by the Placement Agents or any Notice Holder, as promptly as
practicable incorporate in a prospectus supplement or post-effective amendment to a Registration
Statement such information as the Placement Agents and the Special Counsel, or such Notice Holder
shall on the basis of an opinion of nationally-recognized counsel experienced in such matters,
determine to be required to be included therein by applicable law and make any required filings of
such prospectus supplement or post-effective amendment.
(f) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the
Placement Agents, without charge, at least one (1) conformed copy of the Registration Statement and
any amendment thereto, including exhibits and all documents incorporated or deemed to be
incorporated therein by reference.
(g) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if
any, and the Placement Agents, in connection with any sale of Registrable Securities pursuant to
the Registration Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not been revoked) to the
use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection
with any offering and sale of the Registrable Securities covered by such Prospectus or any
amendment or supplement thereto in the manner set forth therein.
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(h) Prior to any public offering of the Registrable Securities pursuant to the Registration
Statement, use its commercially reasonable efforts to register or qualify or cooperate with the
Notice Holders and the Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the United States as any
Notice Holder reasonably requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable Securities pursuant to the
Registration Statement, use its commercially reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period in connection with
such Notice Holder’s offer and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary
or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the Registration Statement and the related Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or
(ii) take any action that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the
Registration Statement or the initiation of proceedings with respect to the Registration Statement
under Section 8(d) or 8(e) of the 1933 Act, (B) the occurrence of any event or the existence of any
fact (a “Material Event”) as a result of which the Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending corporate development that,
in the reasonable discretion of the Company based on consultation with its United States securities
counsel, makes it appropriate to suspend the availability of the Registration Statement and the
related Prospectus for a period of time:
(i) in the case of clause (B) above, subject to clause (ii) below, as promptly as practicable
prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be incorporated by reference
into such Registration Statement and Prospectus so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and such Prospectus does
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to the
Registration Statement, subject to the next sentence, use its commercially reasonable efforts to
cause it to be declared effective as promptly as is practicable, and
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(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability
of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended
Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any additional or supplemental filings that
are incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus
may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case
of clause (B) above, as soon as, in the reasonable judgment of the Company, public disclosure of
such Material Event would not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the
case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension
is no longer appropriate. The Company shall be entitled to exercise its right under this Section
3(i) to suspend the availability of the Registration Statement or any Prospectus, without incurring
or accruing any obligation to pay Liquidated Damages pursuant to Section 2(e), no more than one (1)
time in any three month period or three (3) times in any twelve month period, and any such period
during which the availability of the Registration Statement and any Prospectus is suspended (the
“Deferral Period”) shall, without incurring any obligation to pay Liquidated Damages pursuant to
Section 2(e), not to exceed sixty (60) days in any three hundred sixty (360) day period.
(j) If requested in writing in connection with a disposition of Registrable Securities
pursuant to the Registration Statement, make reasonably available for inspection during normal
business hours by a representative for the Notice Holders of a majority in principal amount of such
Registrable Securities, any broker-dealers, attorneys and accountants retained by such Notice
Holders, and any attorneys or other agents retained by a broker-dealer engaged by such Notice
Holders, all relevant financial and other records and pertinent corporate documents and properties
of the Company and its subsidiaries, and cause the appropriate officers, directors and employees of
the Company and its subsidiaries to make reasonably available for inspection during normal business
hours on reasonable notice all relevant information reasonably requested by such representative for
the Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “Due Diligence” examinations; provided that
such persons shall first agree in writing with the Company that any information that is reasonably
and in good faith designated by the Company in writing as confidential at the time of delivery of
such information shall be kept confidential by such persons and shall be used solely for the
purposes of exercising rights under this Agreement, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing of the Registration
Statement or the use of any prospectus referred to in this Agreement) or (iii) such information
becomes generally available to the public other than as a result of a disclosure or failure to
safeguard by any such person, and provided further that the foregoing inspection and information
gathering
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shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and
the other parties entitled thereto by Special Counsel.
(k) Comply with all applicable rules and regulations of the SEC and make generally available
to its security holders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder (or any similar rule promulgated under the
0000 Xxx) for a 12-month period commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of the Registration Statement, which statements shall
be made available no later than forty-five (45) days after the end of the twelve-month period or
seventy-five (75) days if the twelve month period coincides with a fiscal year of the Company.
(l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold or to be sold pursuant to a Registration
Statement, which certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such denominations as are permitted by the Statement of Designations and
registered in such names as such Notice Holder may request in writing at least one (1) Business Day
prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by the Registration
Statement not later than the effective date of such Registration Statement and provide the Transfer
Agent and the transfer agent for the Common Stock with printed certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust Company.
(n) Upon (i) the filing of the Registration Statement and (ii) the effectiveness of the
Registration Statement, announce the same, in each case by release to Reuters Economic Services or
Bloomberg Business News or other reasonable means of distribution.
(o) Make such representations and warranties to the Holders of Registrable Securities and the
underwriters in form, substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters, including, but not limited to, those set forth
in the Subscription Agreement.
(p) Obtain opinions of counsel to the Company and its subsidiaries and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any) addressed to each selling Holder and the underwriters, if any,
covering such matters as are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and underwriters.
(q) Obtain “comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the Registration Statement),
addressed to each selling Holder of Registrable Securities registered under the Registration
Statement and the underwriters, if any, in customary form and covering
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matters of the type customarily covered in “comfort” letters in connection with primary
underwritten offerings.
(r) Deliver such documents and certificates as may be reasonably requested by the Holders or
the managing underwriters, if any, including those to evidence compliance with Section 3(l) hereof
and with any customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
(s) Use its reasonable commercial efforts to quote the Underlying Common Stock on the NASDAQ
National Market.
(t) File electronically on XXXXX the Registration Statement and any amendments or supplements
thereto.
Notwithstanding the foregoing, the actions set forth in Sections 3(o), (p), (q) and (r) shall only
be performed in connection with an underwritten offering and only if requested by the underwriters
thereof.
Section 4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to
the Registration Statement or to receive a Prospectus relating thereto, or to receive Liquidated
Damages, if any, of the type described in clauses (iii) or (iv) of the second paragraph of Section
2(e) in respect of the Registrable Securities unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including the information
required to be included in such Notice and Questionnaire and under Item 507 of Regulation S-K under
the 1993 Act). Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed under Item 507 of Regulation S-K under the 1933 Act and any other material
information regarding such Notice Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. Any sale of any Registrable Securities by any
Holder shall constitute a representation and warranty by such Holder that the information relating
to such Holder and its plan of distribution is as set forth in the Prospectus delivered by such
Holder in connection with such disposition, that such Prospectus does not as of the time of such
sale contain any untrue statement of a material fact provided by such Holder and that such
Prospectus does not as of the time of such sale omit to state any material fact relating to or
provided by such Holder necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
Section 5. Registration Expenses. The Company shall bear all fees and expenses incurred
directly or indirectly in connection with the performance by the Company of its obligations under
this Agreement (the “Registration Expenses”) whether or not the Registration Statement is declared
effective. Such fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses) with the SEC and otherwise relating
to compliance with federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of the Special Counsel in connection with Blue Sky qualifications
of the Registrable Securities under the laws of such jurisdictions as Notice Holders of a majority
of the Registrable Securities being sold pursuant to the Registration Statement may designate),
(ii) printing expenses (including, without limitation,
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expenses of printing any Registration Statement, Prospectus and any supplement or amendment
thereto and certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) duplication expenses relating to copies of any Registration
Statement or Prospectus or any supplement or amendment thereto delivered to any Holders hereunder,
(iv) fees and disbursements of counsel for the Company and the Special Counsel in connection with
the Registration Statement (provided that the Company shall not be liable for the fees and expenses
of more than one separate firm for all Holders participating in any transaction hereunder), (v)
reasonable fees and disbursements of the Transfer Agent and of the registrar and transfer agent for
the Common Stock, (vi) 1933 Act liability insurance obtained by the Company in its sole discretion
and (vii) fees and disbursements of all independent certified public accountants (including the
expenses of any annual audit and “cold comfort” letters required by or incident to such
performance). In addition, the Company shall pay the internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses incurred in connection
with the listing by the Company of the Registrable Securities on any securities exchange on which
similar securities of the Company are then listed and the fees and expenses of any person,
including special experts, retained by the Company.
Section 6. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each
Holder of Registrable Securities or transferee of such Holder covered by the Registration
Statement, the directors, officers, employees, Affiliates and agents of each such Holder or
transferee of such Holder and each person who controls any such Holder, transferee of such Holder
within the meaning of either the 1933 Act or the 1934 Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
1933 Act, the 1934 Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, in each case at the time such
became effective under the 1933 Act, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of any preliminary Prospectus or the Prospectus, in the light of
the circumstances under which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein (in the case of any Holder of Registrable
Securities, such written information shall be limited to the information relating to such Holder
and the number of securities of such Holder provided by such Holder for use in the Registration
Statement and Prospectus). This indemnity agreement shall be in addition to any liability that the
Company may otherwise have.
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The Company also agrees to indemnify as provided in this Section 6(a) or contribute as
provided in Section 6(d) hereof to Losses of each underwriter, if any, of Registrable Securities
registered under the Registration Statement, its directors, officers, employees, Affiliates or
agents and each person who controls such underwriter on substantially the same basis as that of the
indemnification of the selling Holders or transferees of such Holders provided in this paragraph
(a) and shall, if requested by any Holder or transferee of such Holder, enter into an underwriting
agreement reflecting such agreement.
(b) Indemnification by Holders or transferees. Each Holder of securities covered by the
Registration Statement or transferee of such Holders (including the Placement Agents that is a
Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement and each
person who controls the Company within the meaning of either the 1933 Act or the 1934 Act, to the
same extent as the foregoing indemnity (in the case of any Holder of Registrable Securities, such
written information shall be limited to the information relating to such Holder and the number of
securities of such Holder provided by such Holder for use in the Registration Statement and
Prospectus) from the Company to each such Holder or transferee, but only with reference to written
information relating to such Holder or transferee furnished to the Company by or on behalf of such
Holder or transferee of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement shall be acknowledged by each Notice Holder that is
not the Placement Agents in such Notice Holder’s Notice and Questionnaire and shall be in addition
to any liability that any such Notice Holder may otherwise have. Any indemnity or contribution by
a Holder of Registrable Securities shall be limited to the net proceeds received by such Holder
from the sale of Registrable Securities.
(c) Conduct of Indemnification Proceedings. Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 6, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 6(a) or 6(b) shall be available to any party who shall fail
to give notice as provided in this Section 6(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related but the omission to so notify
such indemnifying party of any such action, suit or proceeding shall only relieve it from liability
to the extent that it was prejudiced by the failure to give such notice and shall not relieve it
from any liability that it may have to any indemnified party for contribution or otherwise than
under this Section 6. In case any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof and the approval
by the indemnified party of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such indemnified party in connection
with the defense thereof. The indemnified party shall have the right to employ separate counsel in
any such action, but the fees and expenses of such counsel shall be at the
15
expense of such indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized in writing by the indemnifying parties, (ii) the indemnified party shall
have been advised by counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party (in which case the
indemnifying parties shall not have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the commencement thereof, in each
of which cases the fees and expenses of one separate counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any settlement of any action,
suit and proceeding or claim effected without its written consent, which consent shall not be
unreasonably withheld or delayed.
(d) Contribution. In the event that the indemnity provided in paragraph (a) or (b) of this
Section 6 is unavailable to or insufficient to hold harmless an indemnified party for any reason,
then each applicable indemnifying party shall have a joint and several obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending loss, claim, liability, damage or action)
(collectively “Losses”) to which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, provided, however, that in no case shall any
underwriter be responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the initial placement and sale of (before deducting expenses) as set
forth in the Memorandum. Benefits received by any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information provided by the indemnifying party, on the one hand, or by the indemnified party, on
the other hand, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties agree that it
would not be just and equitable if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other method of allocation which does
not take account of the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the 1933 Act or the 1934 Act and each director, officer,
employee and agent of such Holder shall have the same rights to contribution as such Holder, and
each person who controls the Company within the meaning of either the 1933 Act or
16
the 1934 Act, each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) Continuing Effect. The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or the Company or any of
the indemnified persons referred to in this Section 6, and shall survive the sale by a Holder of
Registrable Securities covered by the Registration Statement.
Section 7. Information Requirements. The Company covenants that, if at any time before the
end of the Effectiveness Period the Company is not subject to the reporting requirements of the
1934 Act, it will cooperate with any Holder and take such further reasonable action as any Holder
may reasonably request in writing (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration under the 1933 Act
within the limitation of the exemptions provided by Rule 144 and Rule 144A under the 1933 Act and
customarily taken in connection with sales pursuant to such exemptions. Upon the written request
of any Holder, the Company shall deliver to such Holder a written statement as to whether it has
complied with such filing requirements, unless such a statement has been included in the Company’s
most recent report filed pursuant to Section 13 or Section 15(d) of 1934 Act. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its
securities (other than the Registrable Securities) under any section of the 1934 Act.
Section 8. Underwritten Registrations
(a) The Registrable Securities may be sold in an underwritten offering only with the consent
of the Company, and, in such event, the managing underwriters shall be one or more of the
underwriters for the Company’s initial public offering selected by the Company.
(b) No person may participate in any underwritten offering pursuant to the Registration
Statement unless such person (i) agrees to sell such person’s Registrable Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of
such underwriting arrangements.
Section 9. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor
shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. The Company
represents and warrants that the rights granted to the Holders hereunder do not in any way conflict
with the rights granted to the holders of the Company’s securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
17
consents to departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority of the then outstanding Underlying Common
Stock constituting Registrable Securities (with Holders of Preferred Stock deemed to be the
Holders, for purposes of this Section, of the number of outstanding shares of Underlying Common
Stock into which such Preferred Stock is or would be convertible as of the date on which such
consent is requested). Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration Statement;
provided, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence. Each Holder of
Registrable Securities outstanding at the time of any such amendment, modification, supplement,
waiver or consent or thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 9(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, by telecopier, by courier guaranteeing overnight delivery or
by first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by
hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the date indicated on
the notice of receipt, if made by first-class mail, to the parties as follows:
(i) if to the Company, at its address set forth in the Subscription Agreement; and
(ii) if to the Placement Agents, at the address set forth in the Subscription Agreement.
(d) Successors and Assigns. Any person who purchases any Registrable Securities from the
Placement Agents shall be deemed, for purposes of this Agreement, to be an assignee of the
Placement Agents. This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be
original and all of which taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
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(g) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(h) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or restriction, it being
intended that all of the rights and privileges of the parties shall be enforceable to the fullest
extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and is 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 and the
registration rights granted by the Company with respect to the Registrable Securities. Except as
provided in the Subscription Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This Agreement
supersedes all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of distribution take the
form of an underwritten offering of the Registrable Securities without the prior agreement of the
Company.
(j) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under Section
4, 5 or 6 hereof and the obligations to make payments of and provide for Liquidated Damages under
Section 2(e) hereof to the extent such damages cumulate prior to the end of the Effectiveness
Period, each of which shall remain in effect in accordance with its terms.
(k) Submission to Jurisdiction. Each of the parties hereto irrevocably (i) agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby may be instituted in any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a “New York Court”), (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter have to the laying of
venue of any such proceeding and (iii) submits to the non-exclusive jurisdiction of such courts in
any such suit, action or proceeding. The Company has appointed Xxxxxx & Xxxxxxx LLP, New York, New
York, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions contemplated hereby which may
be instituted in any New York Court by the Placement Agents or by any person who controls the
Placement Agents, expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company represents and warrants that the
Authorized Agent has agreed to act as such agent for service of process and agrees to take any and
all action, including
19
the filing of any and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent
and written notice of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| XXXXXXXX MARITIME LIMITED | ||||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||||
| Title: Chief Executive Officer and President | ||||||
21
| Confirmed and accepted as of the date first above written: | ||||
| XXXXXXX XXXX & CO., LLC | ||||
By: |
/s/ Xxxxxx Xxxxxxx | |||
| Title: President | ||||
| FORTIS SECURITIES, LLC | ||||
By: |
/s/ Xxxx Xxxxx | |||
| Title: Treasurer | ||||
By: |
/s/ Xxxxxxx Xxxxxxxxx | |||
| Title: Executive Director | ||||
22
