REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
July 27, 2007, by and between Xxxxxx Equipment, Inc., a Delaware corporation
(the “Company”), and Laurus Master Fund, Ltd. (“Laurus”).
This
Agreement is made in connection with the transactions contemplated by a Secured
Term Note, dated as of the date hereof, in the original principal amount of
$20,800,000, made by the Company and Xxxxxx Ventures, Inc., a Delaware
corporation in favor of Laurus.
The
Company and Laurus hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Note shall have the meanings given such terms in the Note. As used in this
Agreement, the following terms shall have the following meanings:
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
shares of the Company’s common stock, par value $0.01 per share.
“Effectiveness
Date”
means,
(i) with respect to the Registration Statement required to be filed in
connection with the shares of Common Stock issuable upon exercise of the
Warrants issued on the date hereof, June 30, 2008 and (ii) with respect to
each
additional Registration Statement required to be filed hereunder (if any),
a
date no later than thirty (30) days following the applicable Filing
Date.
“Effectiveness
Period”
has the
meaning set forth in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing
Date”
means,
with respect to (1) the Registration Statement required to be filed in
connection with the shares of Common Stock issuable to the Holder upon exercise
of a Warrant, March 31, 2008, and (2) the Registration Statement required to
be
filed in connection with the shares of Common Stock issuable to the Holder
as a
result of adjustments to the Exercise Price made pursuant to Section 4 of the
Warrant or otherwise, thirty (30) days after the occurrence of such event or
the
date of the adjustment of the Exercise Price.
“Holder”
or
“Holders”
means
Laurus or any of its affiliates or transferees to the extent any of them hold
Registrable Securities, other then those purchasing Registrable Securities
in a
market transaction.
“Indemnified
Party”
has the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has the
meaning set forth in Section 5(c).
“Proceeding”
means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the shares of Common Stock issuable upon exercise of the Warrants.
“Registration
Statement”
means
each registration statement required to be filed hereunder, including the
Prospectus therein, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Trading
Market”
means
any of the NASD Over The Counter Bulletin Board, NASDAQ Capital Market, the
NASDAQ National Markets System, the American Stock Exchange or the New York
Stock Exchange
“Warrants”
means
the Common Stock purchase warrants issued in connection with the Note, whether
on the date thereof or thereafter.
2. Registration.
(a) On
or prior to each Filing Date, the Company shall prepare and file with the
Commission a Registration Statement covering the Registrable Securities for
a
selling stockholder resale offering to be made on a continuous basis pursuant
to
Rule 415. Each Registration Statement shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form S-3, in which case such registration shall be on another appropriate
form in accordance herewith). The Company shall cause each Registration
Statement to become effective and remain effective as provided herein. The
Company shall use its best efforts to cause each Registration Statement to
be
declared effective under the Securities Act as promptly as possible after the
filing thereof, but in any event no later than the Effectiveness Date. The
Company shall use its reasonable commercial efforts to keep each Registration
Statement continuously effective under the Securities Act until the date which
is the earlier date of when (i) all Registrable Securities covered by such
Registration Statement have been sold or (ii) all Registrable Securities covered
by such Registration Statement may be sold immediately without registration
under the Securities Act and without volume restrictions pursuant to Rule
144(k), as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company’s
transfer agent and the affected Holders (each, an “Effectiveness
Period”).
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(b) If:
(i) the Registration Statement is not filed on or prior to the Filing Date;
(ii)
the Registration Statement is not declared effective by the Commission by the
Effectiveness Date; (iii) after the Registration Statement is filed with and
declared effective by the Commission, the Registration Statement ceases to
be
effective (by suspension or otherwise) as to all Registrable Securities to
which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an additional
registration statement filed and declared effective) for a period of time which
shall exceed 30 days in the aggregate per year or more than 20 consecutive
calendar days (defined as a period of 365 days commencing on the date the
Registration Statement is declared effective); or (iv) the Common Stock is
not
listed or quoted, or is suspended from trading on any Trading Market for a
period of three (3) consecutive Trading Days (provided the Company shall not
have been able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on another Trading Market); (any such failure
or breach being referred to as an “Event,” and for purposes of clause (i) or
(ii) the date on which such Event occurs, or for purposes of clause (iii) the
date which such 30 day or 20 consecutive day period (as the case may be) is
exceeded, or for purposes of clause (iv) the date on which such three (3)
Trading Day period is exceeded, being referred to as “Event Date”), then until
the applicable Event is cured, the Company shall pay to each Holder an amount
in
cash, as liquidated damages and not as a penalty, equal to 1.0% for each thirty
(30) day period (prorated for partial periods) on a daily basis of the original
principal amount of the Note; provided that, the maximum aggregate amount of
liquidated damages that may be charged to the Company pursuant to this Section
2(b) shall not exceed 10% of the initial Principal Amount of the Note. While
such Event continues, such liquidated damages shall be paid not less often
than
each thirty (30) days. Any unpaid liquidated damages as of the date when an
Event has been cured by the Company shall be paid within three (3) days
following the date on which such Event has been cured by the
Company.
(c) Within
three business days of the Effectiveness Date, the Company shall cause its
counsel to issue a blanket opinion in the form attached hereto as Exhibit A,
to
the transfer agent stating that the shares are subject to an effective
registration statement and can be reissued free of restrictive legend upon
notice of a sale by Laurus and confirmation by Laurus that it has complied
with
the prospectus delivery requirements, provided that the Company has not advised
the transfer agent orally or in writing that the opinion has been withdrawn.
Copies of the blanket opinion required by this Section 2(c) shall be delivered
to Laurus within the time frame set forth above.
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3. Registration
Procedures.
If and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare
and file with the Commission a Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received
from the Commission, and use its best efforts to cause such Registration
Statement to become and remain effective for the Effectiveness Period with
respect thereto, and promptly provide to Laurus copies of all filings and
Commission letters of comment relating thereto;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as may
be
necessary to comply with the provisions of the Securities Act with respect
to
the disposition of all Registrable Securities covered by such Registration
Statement and to keep such Registration Statement effective until the expiration
of the Effectiveness Period applicable to such Registration
Statement;
(c) furnish
to Laurus such number of copies of the Registration Statement and the Prospectus
included therein (including each preliminary Prospectus) as Laurus reasonably
may request to facilitate the public sale or disposition of the Registrable
Securities covered by such Registration Statement;
(d) use
its best efforts to register or qualify Laurus’s Registrable Securities covered
by such Registration Statement under the securities or “blue sky” laws of such
jurisdictions within the United States as Laurus may reasonably request,
provided, however, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service
of
process in any such jurisdiction;
(e) list
the Registrable Securities covered by such Registration Statement with any
securities exchange on which the Common Stock of the Company is then
listed;
(f) immediately
notify Laurus at any time when a Prospectus relating thereto is required to
be
delivered under the Securities Act, of the happening of any event of which
the
Company has knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement of
a
material fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and
(g) make
available for inspection by Laurus and any attorney, accountant or other agent
retained by Laurus, all publicly available, non-confidential financial and
other
records, pertinent corporate documents and properties of the Company, and cause
the Company’s officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the attorney,
accountant or agent of Laurus.
4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including reasonable counsel fees) incurred
in connection with complying with state securities or “blue sky” laws, fees of
the NASD, transfer taxes, fees of transfer agents and registrars, fees of,
and
disbursements incurred by, one counsel for the Holders are called “Registration
Expenses”. All selling commissions applicable to the sale of Registrable
Securities, including any fees and disbursements of any special counsel to
the
Holders beyond those included in Registration Expenses, are called “Selling
Expenses.” The Company shall only be responsible for all Registration
Expenses.
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5. Indemnification.
(a) In
the event of a registration of any Registrable Securities under the Securities
Act pursuant to this Agreement, the Company will indemnify and hold harmless
each Holder, and its officers, directors and each other person, if any, who
controls such Holder within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such Holder,
or such persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement under
which such Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final Prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or
are based upon the omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse such Holder, and each such person for any
reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by or on behalf of Laurus or any such
person in writing specifically for use in any such document.
(b) In
the event of a registration of the Registrable Securities under the Securities
Act pursuant to this Agreement, Laurus will indemnify and hold harmless the
Company, and its officers, directors and each other person, if any, who controls
the Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact which was furnished in writing by Laurus to the Company
expressly for use in (and such information is contained in) the Registration
Statement under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and each such person
for
any reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided,
however,
that
Laurus will be liable in any such case if and only to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished in writing to the Company by or on behalf
of Laurus specifically for use in any such document. Notwithstanding the
provisions of this paragraph, Laurus shall not be required to indemnify any
person or entity in excess of the amount of the aggregate net proceeds received
by Laurus in respect of Registrable Securities in connection with any such
registration under the Securities Act.
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(c) Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified Party”) of notice of the commencement of any action, such
Indemnified Party shall, if a claim for indemnification in respect thereof
is to
be made against a party hereto obligated to indemnify such Indemnified Party
(an
“Indemnifying Party”), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from any
liability which it may have to such Indemnified Party other than under this
Section 5(c) and shall only relieve it from any liability which it may have
to
such Indemnified Party under this Section 5(c) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any such action
shall
be brought against any Indemnified Party and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel satisfactory to such Indemnified Party, and, after
notice from the Indemnifying Party to such Indemnified Party of its election
so
to assume and undertake the defense thereof, the Indemnifying Party shall not
be
liable to such Indemnified Party under this Section 5(c) for any legal expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof; if the Indemnified Party retains its own counsel, then the Indemnified
Party shall pay all fees, costs and expenses of such counsel, provided,
however,
that,
if the defendants in any such action include both the Indemnified Party and
the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the Indemnifying Party or if the interests
of the Indemnified Party reasonably may be deemed to conflict with the interests
of the Indemnifying Party, the Indemnified Party shall have the right to select
one separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the reasonable expenses and
fees
of such separate counsel and other expenses related to such participation to
be
reimbursed by the Indemnifying Party as incurred.
(d) In
order to provide for just and equitable contribution in the event of joint
liability under the Securities Act in any case in which either (i) Laurus,
or
any officer, director or controlling person of Laurus, makes a claim for
indemnification pursuant to this Section 5 but it is judicially determined
(by
the entry of a final judgment or decree by a court of competent jurisdiction
and
the expiration of time to appeal or the denial of the last right of appeal)
that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of Laurus
or
such officer, director or controlling person of Laurus in circumstances for
which indemnification is provided under this Section 5; then, and in each such
case, the Company and Laurus will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that Laurus is responsible only for the portion
represented by the percentage that the public offering price of its securities
offered by the Registration Statement bears to the public offering price of
all
securities offered by such Registration Statement, provided,
however,
that,
in any such case, (A) Laurus will not be required to contribute any amount
in
excess of the public offering price of all such securities offered by it
pursuant to such Registration Statement; and (B) no person or entity guilty
of
fraudulent misrepresentation (within the meaning of Section 10(f) of the Act)
will be entitled to contribution from any person or entity who was not guilty
of
such fraudulent misrepresentation.
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6. Representations,
Warranties and Covenants.
(a) The
Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act and, except with respect to certain matters which the Company has disclosed
to Laurus on Schedule
6(a)
hereto,
the Company has timely filed all proxy statements, reports, schedules, forms,
statements and other documents required to be filed by it under the Exchange
Act. The Company has filed (i) its Annual Report on Form 10-K for its fiscal
year ended June 30, 2005 and (ii) its Quarterly Report on Form 10-Q for the
fiscal quarters ended September 30, 2005, December 31, 2005 and March 31, 2006
(collectively, the “SEC Reports”). Each SEC Report was, at the time of its
filing or at the time of the filing of any amendment thereto, in substantial
compliance with the requirements of its respective form and none of the SEC
Reports, nor the financial statements (and the notes thereto) included in the
SEC Reports, as of their respective filing dates or as of the respective filing
dates of any amendments thereto, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements of the Company
included in the SEC Reports comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations
of
the Commission or other applicable rules and regulations with respect thereto.
Such financial statements have been prepared in accordance with generally
accepted accounting principles (“GAAP”) applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed)
and fairly present in all material respects the financial condition, the results
of operations and the cash flows of the Company and its subsidiaries, on a
consolidated basis, as of, and for, the periods presented in each such SEC
Report.
(b) The
Common Stock is quoted for trading on the Pink Sheet and satisfies all
requirements for the continuation of such quotation and the Company shall do
all
things necessary for the continuation of such quotation. The Company has not
received any notice that its Common Stock will no longer be quoted on the Pink
Sheets (except for prior notices which have been fully remedied) or that the
Common Stock does not meet all requirements for the continuation of such listing
or quotation, as applicable.
(c) Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances that would cause
the offering of the Securities pursuant to the Note to be integrated with prior
offerings by the Company for purposes of the Securities Act which would prevent
the Company from selling the Common Stock pursuant to Rule 506 under the
Securities Act, or any applicable exchange-related stockholder approval
provisions, nor will the Company or any of its affiliates or subsidiaries take
any action or steps that would cause the offering of the Common Stock to be
integrated with other offerings (other than such concurrent offering to
Laurus).
7
(d) The
Warrants and the shares of Common Stock that Laurus may acquire pursuant to
the
Warrants are all restricted securities under the Securities Act as of the date
of this Agreement. The Company will not issue any stop transfer order or other
order impeding the sale and delivery of any of the Registrable Securities at
such time as such Registrable Securities are registered for public sale or
an
exemption from registration is available, except as required by federal or
state
securities laws.
(e) The
Company understands the nature of the Registrable Securities issuable upon
the
exercise of each Warrant and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company specifically
acknowledges that its obligation to issue the Registrable Securities is binding
upon the Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the
Company.
(f) Except
for agreements made in the ordinary course of business, there is no agreement
that has not been filed with the Commission as an exhibit to a registration
statement or to a form required to be filed by the Company under the Exchange
Act, the breach of which could reasonably be expected to have a material and
adverse effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and perform
any of its obligations under this Agreement in any material
respect.
(g) The
Company is increasing its authorized Common Stock so that it will have
authorized and reserved a sufficient number of shares of Common Stock for the
full exercise of the Warrants.
(h) The
Company shall provide written notice to each Holder of (i) the occurrence of
each Discontinuation Event (as defined below) and (ii) the declaration of
effectiveness by the SEC of each Registration Statement required to be filed
hereunder, in each case within one (1) business day of the date of each such
occurrence and/or declaration.
(i) The
Company hereby agrees that:
(i) No
later than March 31, 2008, the Company shall deliver to Laurus evidence of
the
filing of a Proxy Statement with respect to an increase in the Company’s
authorized common stock to an aggregate amount of not less than
5,000,000,000.
(ii) No
later than March 31, 2008, the Company shall deliver to Laurus evidence that
the
Company's Certificate of Incorporation has been amended to (a) increase the
authorized Common Stock to an aggregate amount of not less than 5,000,000,000
(the “Stock Increase”) and (b) immediately following the Stock Increase, cause a
twenty-five (25) to one (1) reverse stock split to be effected pursuant to
which
the holders of shares of Common Stock will receive one (1) share of Common
Stock
for every twenty-five (25) shares of Common Stock then held.
(iii) Any
breach by the Company of this Section 6(i) shall constitute an automatic Event
of Default (as defined in the Note) and no cure or grace period shall be
applicable thereto notwithstanding any other provision of the Note to the
contrary.
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7. Miscellaneous.
(a) Remedies.
In the
event of a breach by the Company or by a Holder, of any of their respective
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) No
Piggyback on Registrations.
Except
as and to the extent set forth on Schedule 7(b) hereto, neither the Company
nor
any of its security holders (other than the Holders in such capacity pursuant
hereto) may include securities of the Company in any Registration Statement
other than the Registrable Securities, and the Company shall not after the
date
hereof enter into any agreement providing any such right for inclusion of shares
in the Registration Statement to any of its security holders. Except as and
to
the extent specified in Schedule
7(b)
hereto,
the Company has not previously entered into any agreement granting any
registration rights with respect to any of its securities to any Person that
have not been fully satisfied.
(c) Compliance.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to any Registration Statement.
(d) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of a Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus may be resumed, and,
in
either case, has received copies of any additional or supplemental filings
that
are incorporated or deemed to be incorporated by reference in such Prospectus
or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this Agreement, a
“Discontinuation Event” shall mean (i) when the Commission notifies the Company
whether there will be a “review” of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement (the Company
shall
provide true and complete copies thereof and all written responses thereto
to
each of the Holders); (ii) any request by the Commission or any other Federal
or
state governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance by
the
Commission of any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or the initiation
of
any Proceedings for that purpose; (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and/or (v) the occurrence of any event or passage of time that makes
the financial statements included in such Registration Statement ineligible
for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
such
Registration Statement, Prospectus or other documents so that, in the case
of
such Registration Statement or Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
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(e) Piggy-Back
Registrations.
If at
any time during the applicable Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities required
to be
covered during such Effectiveness Period and the Company shall determine to
prepare and file with the Commission a registration statement relating to an
offering for its own account or the account of others under the Securities
Act
of any of its equity securities, other than on Form S-4 or Form S-8 (each
as promulgated under the Securities Act) or their then equivalents relating
to
equity securities to be issued solely in connection with any acquisition of
any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to each Holder
written notice of such determination and, if within fifteen (15) days after
receipt of such notice, any such Holder shall so request in writing, the Company
shall include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered, to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement, subject to customary underwriter cutbacks applicable to
all
holders of registration rights and subject to obtaining any required consent
of
any selling stockholder(s) to such inclusion under such registration
statement.
(f) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of certain Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however,
that
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(g) Notices.
Any
notice or request hereunder may be given to the Company or Laurus at the
respective addresses set forth below or as may hereafter be specified in a
notice designated as a change of address under this Section 7(g). Any notice
or
request hereunder shall be given by registered or certified mail, return receipt
requested, hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, “Courier”) or telecopy (confirmed by
mail). Notices and requests shall be, in the case of those by hand delivery,
deemed to have been given when delivered to any party to whom it is addressed,
in the case of those by mail or overnight mail, deemed to have been given three
(3) business days after the date when deposited in the mail or with the
overnight mail carrier, in the case of a Courier, the next business day
following timely delivery of the package with the Courier, and, in the case
of a
telecopy, when confirmed. The address for such notices and communications shall
be as follows:
|
If
to the Company:
|
Xxxxxx
Equipment, Inc.
0000
00xx Xxxxxx
Xxxxxxx,
Xxxxxx X0X 0X0, Xxxxxx
Attention: Xxxxx
XxXxxxx
Facsimile: (000)
000-0000
|
|
with
a copy to:
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
X. Xxxx, Esq.
Facsimile: (000)
000-0000
|
|
If
to a Purchaser:
|
To
the address set forth under such Purchaser name on the signature
pages
hereto
|
|
If
to any other Person who is
then
the registered Holder:
|
To
the address of such Holder as it appears in the stock transfer books
of
the Company
|
or
such
other address as may be designated in writing hereafter in accordance with
this
Section 7(g) by such Person.
10
(h) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder to any person or entity.
(i) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(j) Governing
Law, Jurisdiction and Waiver of Jury Trial.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH
STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. The Company hereby
consents and agrees that the state or federal courts located in the County
of
New York, State of New York shall have exclusion jurisdiction to hear and
determine any Proceeding between the Company, on the one hand, and Laurus,
on
the other hand, pertaining to this Agreement or to any matter arising out of
or
related to this Agreement; provided,
that
Laurus and the Company acknowledge that any appeals from those courts may have
to be heard by a court located outside of the County of New York, State of
New
York, and further provided,
that
nothing in this Agreement shall be deemed or operate to preclude Laurus from
bringing a Proceeding in any other jurisdiction to collect the obligations,
to
realize on the Collateral or any other security for the obligations, or to
enforce a judgment or other court order in favor of Laurus. The Company
expressly submits and consents in advance to such jurisdiction in any Proceeding
commenced in any such court, and the Company hereby waives any objection which
it may have based upon lack of personal jurisdiction, improper venue or
forum
non conveniens.
The
Company hereby waives personal service of the summons, complaint and other
process issued in any such Proceeding and agrees that service of such summons,
complaint and other process may be made by registered or certified mail
addressed to the Company at the address set forth in Section 7(g) and that
service so made shall be deemed completed upon the earlier of the Company’s
actual receipt thereof or three (3) days after deposit in the U.S. mails, proper
postage prepaid. The parties hereto desire that their disputes be resolved
by a
judge applying such applicable laws. Therefore, to achieve the best combination
of the benefits of the judicial system and of arbitration, the parties hereto
waive all rights to trial by jury in any Proceeding brought to resolve any
dispute, whether arising in contract, tort, or otherwise between Laurus and/or
the Company arising out of, connected with, related or incidental to the
relationship established between then in connection with this Agreement. If
either party hereto shall commence a Proceeding to enforce any provisions of
this Agreement, then the prevailing party in such Proceeding shall be reimbursed
by the other party for its reasonable attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(k) Cumulative
Remedies.
The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(m) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
[Balance
of page intentionally left blank; signature page follows]
11
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
XXXXXX
EQUIPMENT, INC.
|
||
| |
|
|
| By: | /s/ XXXXXXX XXXXXX | |
|
Name:
Xxxxxxx Xxxxxx
|
||
|
Title:
CEO
|
||
|
LAURUS
MASTER FUND, LTD.
|
||
| |
|
|
| By: | /s/ XXXXX GRIN | |
|
Name:
Xxxxx Grin
|
||
|
Title:
Fund Manager
|
||
|
Address
for Notices:
Laurus
Master Fund, Ltd.
c/o
M&C Corporate Services Limited
X.X.
Xxx 000 XX
Xxxxxx
Xxxxx
Xxxxxx
Xxxx
South
Church Street
Grand
Cayman, Cayman Islands
Facsimile:
000-000-0000
with
copy to:
Laurus
Capital Management, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Portfolio Services
Facsimile:
000-000-0000
|
12
EXHIBIT
A
____________,
200___
[Continental
Stock Transfer
&
Trust Company
Two
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxxxxx]
Re: Xxxxxx
Equipment, Inc. Registration Statement on Form [S-3]
Ladies
and Gentlemen:
As
counsel to Xxxxxx Equipment, Inc., a Delaware corporation (the “Company”), we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on Schedule
A
attached
hereto (the “Selling Stockholders”), of an aggregate of __________ shares (the
“Shares”) of the Company’s Common Stock.
A
Registration Statement on Form [S-3] under the Securities Act of 1933, as
amended (the “Act”), with respect to the resale of the Shares was declared
effective by the Securities and Exchange Commission on [date]. Enclosed is
the
Prospectus dated [date]. We understand that the Shares are to be offered and
sold in the manner described in the Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholders at any time while
the registration statement remains effective, it is our opinion that the Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholders
may be issued without restrictive legend. We will advise you if the registration
statement is not available or effective at any point in the future.
|
Very
truly yours,
[Company
counsel]
|
Schedule
A to Exhibit A
|
Selling
Stockholder
|
R/N/O
|
Shares
Being
Offered
|
SCHEDULE
6(a)
None
SCHEDULE
7(b)
1. Common
Stock Purchase Warrant dated November 8, 2006 issued by the Company to Federal
Partners, L.P. exercisable into 52,500,000 shares of Common Stock at an exercise
price of $0.125.
2. Common
Stock Purchase Warrant dated November 8, 2006 issued by the Company to Federal
Partners, L.P. exercisable into 52,500,000 shares of Common Stock at an exercise
price of $0.01.
3. Common
Stock Purchase Warrant dated November 8, 2006 issued by the Company to Laurus
exercisable into 52,500,000 shares of Common Stock at an exercise price of
$0.125.
4. Common
Stock Purchase Warrant dated November 8, 2006 issued by the Company to Laurus
exercisable into 52,500,000 shares of Common Stock at an exercise price of
$0.01.
5. Common
Stock Purchase Warrant dated May 2, 2007 issued by the Company to Laurus
exercisable into 562,998,132 shares of Common Stock at an exercise price of
$0.01.
6. 4,854,426
shares of Common Stock held by certain former shareholders of Pneutech Inc.
7. 168,283,341
shares of Common Stock held by the preferred shareholders.
8. Warrants
held by the preferred shareholders exercisable into 11,500,000 shares of Common
Stock.
9. Warrants
held by the preferred shareholders exercisable into 8,063,658 shares of Common
Stock.
10. Warrants
held by the preferred shareholders exercisable into 60,416,657 shares of Common
Stock.
