REGISTRATION RIGHTS AGREEMENT
Exhibit 99.2
THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”),
dated as of February 8, 2017 (the “Effective
Date”), is by and among Smart Server, Inc., a Nevada corporation
(the “Company”), NextGen
Dealer Solutions, LLC, a Delaware limited liability company (the
“Stockholder”), and Xxxxxx
Xxxxxxxx, as the representative of the Stockholder (the
“Representative”).
Capitalized terms used and not otherwise defined herein shall have
the respective meanings set forth in the Asset Purchase Agreement,
dated as of January 8, 2017, by and among the parties hereto,
Halcyon Consulting, LLC and Xxxxxxxx Xxxxxxxx (the
“Purchase
Agreement”).
WHEREAS, the Company has
agreed to provide Stockholder certain registration rights with
respect to shares of common stock of the Company, par value $0.001
per share (the “Purchaser Shares”), under
the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute
(collectively, the “Securities
Act”), and applicable state securities
laws.
NOW, THEREFORE, in
consideration of the promises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1.
DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
(a) “FINRA” means the
Financial Industry Regulatory Authority, Inc.
(b) “NextGen
Seller” means the Stockholder and any transferee or
assignee to whom the Stockholder assigns its rights under this
Agreement in accordance with Section 8 and who agrees to
become bound by the provisions of this Agreement, and any
transferee or assignee thereof to whom a transferee or assignee
assigns its rights under this Agreement in accordance with
Section 9 and who
agrees to become bound by the provisions of this
Agreement.
(c) “Person”
means any individual or entity including but not limited to any
corporation, limited liability company, association, partnership,
organization, business, individual, governmental or political
subdivision thereof or governmental agency.
(d) “Registrable
Securities” means (i) any Purchaser Shares owned by
any NextGen Seller at any time and (ii) any other securities
issued or issuable with respect to any Purchaser Shares by way of a
stock dividend or stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other
reorganization (it being understood that for purposes of this
Agreement, a Person will be deemed to be a holder of Registrable
Securities whenever such Person has the right to then acquire or
obtain from the Company any Registrable Securities, whether or not
such acquisition has actually been effected). As to any particular Registrable Securities, once
issued, such Registrable Securities shall cease to be Registrable
Securities when (x) they have been registered under the Securities
Act, the registration statement in connection therewith has been
declared effective, and they have been disposed of pursuant to such
effective registration statement, (y) they are eligible to be sold
or distributed pursuant to Rule 144 by such NextGen Seller without
limitation, or (z) they shall have ceased to be
outstanding.
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(e) “Rule 415”
means Rule 415 under the Securities Act or any successor rule
providing for offering securities on a continuous or delayed
basis.
(f) “SEC” means the United
States Securities and Exchange Commission.
2.
REGISTRATION.
(a) Mandatory
Registration. The Company shall, no later than June 30,
2017, file with the SEC a registration statement on an appropriate
form covering the NextGen
Sellers’ Registrable Securities so as to permit the resale of
such Registrable Securities by the NextGen Sellers under Rule 415 under the
Securities Act at then prevailing market prices (and not fixed
prices) (the
“Shelf Registration
Statement”). The Shelf Registration Statement shall
register only the Registrable Securities. The Representative (on
behalf of the NextGen Sellers)
and one counsel to the NextGen
Sellers shall have a reasonable opportunity to review and comment
upon the Shelf Registration Statement and any amendment or
supplement to such Shelf Registration Statement and any related
prospectus prior to its filing with the SEC, and the Company shall
incorporate all such reasonable comments from the Representative
and the NextGen Sellers’
counsel. The Company shall use commercially reasonable efforts to
have the Shelf Registration Statement and any amendment declared
effective by the SEC at the earliest possible date. The Company
shall use commercially reasonable efforts to maintain the Shelf
Registration Statement effective pursuant to Rule 415 promulgated
under the Securities Act and available for the resale by the
NextGen Sellers of all of the
Registrable Securities covered thereby at all times until the date
on which the NextGen Sellers
shall have sold all the Registrable Securities covered thereby (the
“Registration
Period”) or when such securities are no longer
Registrable Securities.
(b) Rule 424
Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC,
pursuant to Rule 424 promulgated under the Securities Act, the
prospectus and prospectus supplements, if any, to be used in
connection with sales of the Registrable Securities under the Shelf
Registration Statement. The Representative and its counsel shall
have a reasonable opportunity to review and comment upon such
prospectus and prospectus supplements prior to any filing thereof
with the SEC, and the Company shall incorporate all such reasonable
comments from the Representative and NextGen Sellers'
counsel.
(c) Sufficient Number of
Shares Registered. In the event that at any time, the number
of shares registered pursuant to the Shelf Registration Statement
is insufficient to cover all of the Registrable Securities, the
Company shall amend the Shelf Registration Statement or file a new
Shelf Registration Statement (any such new registration statement,
a “New Registration
Statement”, and together with the initial Shelf
Registration Statement, the “Registration
Statements”), so as to cover all of such Registrable
Securities as soon as practicable, but in any event not later than
thirty (30) Business Days after the necessity therefor arises. The
Company shall use commercially reasonable efforts to cause such
amendment to the Shelf Registration Statement or New Registration
Statement, as applicable, to become effective as soon as
practicable following the filing thereof. The Registration
Statements (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading.
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3.
REGISTRATION
PROCEDURES AND OBLIGATIONS.
With
respect to the Registrable Securities registered pursuant to any
Registration Statement, the Company shall use commercially
reasonable efforts to effect the registration of such Registrable
Securities in accordance with the intended method of disposition
thereof and, pursuant thereto, the Company shall have the following
obligations:
(a) The Company shall
prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to any Registration
Statement and the prospectus used in connection with such
Registration Statement as may be necessary to keep such
Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by any Registration Statement
until such time as all of such Registrable Securities shall have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such
Registration Statement.
(b) With respect to
each registration statement filed pursuant to this Agreement and
any and all amendments and supplements thereto, the Company shall
permit the Representative to review and comment thereupon at least
five (5) Business Days prior to its filing with the SEC, and the
Company shall not file any registration statement, amendment or
supplement thereto, or prospectus or prospectus supplement in a
form to which the Representative reasonably objects. The Company
shall furnish to Representative, without charge, any correspondence
from the SEC to the Company or its representatives relating to any
registration statement filed hereunder, and any and all amendments
and supplements to such registration statements.
(c) Upon request of the
Representative, the Company shall furnish to the Representative,
(i) promptly after the same is prepared and filed with the SEC, at
least one copy of each registration statement and any amendment(s)
thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits, (ii)
upon the effectiveness of any registration statement, a copy of the
prospectus included in such registration statement and all
amendments and supplements thereto (or such other number of copies
as the Representative may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus,
as the Representative may reasonably request from time to time in
order to facilitate the disposition of the Registrable
Securities.
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(d) Without limitation
of any of the foregoing obligations of the Company, the Company
shall use commercially reasonable efforts to (i) register and
qualify the Registrable Securities covered by a registration
statement under such other securities or “blue sky”
laws of such jurisdictions in the United States as the
Representative reasonably requests, (ii) prepare and file in those
jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness
thereof during the Registration Period, (iii) cause the Registrable
Securities covered by any registration statement to be registered
with or approved by such other governmental agencies or authorities
as may be necessary to consummate the disposition of such
Registrable Securities and (iv) take such other actions as may be
necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and take all
other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that the Company
shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
Section
3(d), (y) subject itself to general taxation in any such
jurisdiction or (z) file a general consent to service of process in
any such jurisdiction. The Company shall promptly notify the
Representative of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification
of any of the Registrable Securities for sale under the securities
or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
(e) As promptly as
practicable after becoming aware of such event or facts, the
Company shall notify the Representative in writing of the happening
of any event or existence of such facts as a result of which the
prospectus included in any 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, in light of the circumstances under
which they were made, not misleading, and promptly prepare a
supplement or amendment to such registration statement to correct
such untrue statement or omission, and deliver a copy of such
supplement or amendment to the Representative (or such other number
of copies as the Representative may reasonably request). The
Company shall also promptly notify the Representative in writing
(i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a registration
statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to the
Representative by email or facsimile on the same day of such
effectiveness and by overnight mail), (ii) of any request by the
SEC for amendments or supplements to any registration statement or
related prospectus or related information, and (iii) of the
Company’s reasonable determination that a post-effective
amendment to a registration statement would be
appropriate.
(f) The Company shall
use commercially reasonable efforts to prevent the issuance of any
stop order or other suspension of effectiveness of any registration
statement, or the suspension of the qualification of any
Registrable Securities for sale in any jurisdiction and, if such an
order or suspension is issued, to obtain the withdrawal of such
order or suspension at the earliest possible moment and to notify
the Representative of the issuance of such order and the resolution
thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
(g) The Company shall
cause all the Registrable Securities to be listed on each
securities exchange on which securities of the same class or series
issued by the Company are then listed. The Company shall pay all
fees and expenses in connection with satisfying such
obligations.
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(h) The Company shall
cooperate with the Representative to facilitate the timely
preparation and delivery of certificates representing the
Registrable Securities to be offered pursuant to any registration
statement and enable such certificates to be in such denominations
or amounts as the Representative may reasonably request and
registered in such names as the NextGen Sellers may request, and upon sale,
to not bear any restrictive legend.
(i) The Company shall
at all times provide a transfer agent and registrar with respect to
the Registrable Securities.
(j) If reasonably
requested by the Representative, the Company shall (i) as soon as
reasonably practicable, incorporate in a prospectus supplement or
post-effective amendment such information as the Representative
believes should be included therein relating to the sale and
distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable
Securities being sold, the purchase price being paid therefor and
any other terms of the offering of the Registrable Securities; and
(ii) make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable upon notification
of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
(k) Within one (1)
Business Day after any registration statement which includes the
Registrable Securities is declared effective by the SEC, the
Company shall deliver, and shall cause legal counsel for the
Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Representative) confirmation that
such registration statement has been declared effective by the SEC.
Thereafter, if requested by the Representative at any time, the
Company shall require its counsel to deliver to the Representative
a written confirmation whether or not the effectiveness of such
registration statement has lapsed at any time for any reason
(including, without limitation, the issuance of a stop order) and
whether or not the registration statement is current and available
to the Representative and each of the NextGen Sellers for sale of all of the
Registrable Securities.
(l) The Company shall
take all other reasonable actions necessary to expedite and
facilitate disposition by each NextGen Seller of Registrable Securities
pursuant to any registration statement.
4.
OBLIGATIONS OF THE
REPRESENTATIVE AND THE NEXTGEN SELLERS.
(a) The Company shall
notify the Representative in writing of the information the Company
reasonably requires from each of the NextGen Sellers in connection with any
registration statement hereunder. The Representative shall furnish
to the Company such information regarding each NextGen Seller, the Registrable Securities
held by each NextGen Seller and
the intended method of disposition of the Registrable Securities
held by each NextGen Seller as
shall be reasonably required to effect the registration of such
Registrable Securities and each NextGen Seller shall execute such documents
in connection with such registration as the Company may reasonably
request.
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(b) Each NextGen Seller agrees to cooperate with the
Company as reasonably requested by the Company in connection with
the preparation and filing of any registration statement
hereunder.
(c) Each NextGen Seller agrees that, upon receipt of
any notice from the Company of the happening of any event or
existence of facts of the kind described in the first sentence of
Section
3(e), such NextGen
Seller will immediately discontinue disposition of Registrable
Securities pursuant to any registration statement(s) covering such
Registrable Securities until such NextGen Seller’s receipt of the
copies of the supplemented or amended prospectus contemplated by
the first sentence of Section 3(e).
Notwithstanding anything to the contrary, the Company shall cause
its transfer agent to promptly deliver shares of common stock of
the Company in connection with any sale of Registrable Securities
with respect to which any NextGen Seller has entered into a contract
for sale prior to the NextGen
Seller’s receipt of a notice from the Company of the
happening of any event of the kind described in the first sentence
of Section
3(e) and for which such NextGen Seller has not yet
settled.
5.
EXPENSES OF
REGISTRATION.
The
Company shall pay and be responsible for any and all fees, costs,
disbursements and expenses incidental to the Company’s
performance of or compliance with the terms of this Agreement,
including, without limitation, the following: (i) all registration
and filing fees, and any other fees and expenses associated with
filings required to be made with the SEC or FINRA, (ii) all
fees and expenses relating to compliance with state securities or
“blue sky” laws, (iii) all printing, duplicating,
word processing, messenger, telephone, facsimile and delivery
expenses, (iv) all fees and disbursements of the Company’s
counsel and accountants, and (v) all fees and expenses
incurred in connection with the listing of the Registrable
Securities on any securities exchange; provided,
however, that all underwriting
discounts, selling commissions, selling or placement agent or
broker fees and commissions, and transfer taxes, if any, applicable
to the Registrable Securities shall be borne by the NextGen
Sellers, in proportion to the number of Registrable Securities sold
by each such NextGen Seller.
6.
INDEMNIFICATION.
(a) To the fullest
extent permitted by law, the Company will indemnify, hold harmless
and defend each NextGen Seller,
the members, directors, officers, partners, employees, agents,
representatives of each NextGen
Seller and each Person, if any, who controls any NextGen Seller within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”) (each, an “Indemnified
Person”), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs,
attorneys’ fees, amounts paid in settlement or expenses,
joint or several (collectively, “Claims”),
incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken
from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or the SEC, whether
pending or threatened, whether or not an indemnified party is or
may be a party thereto (“Indemnified
Damages”), to which any of them may become subject
insofar as such Claims arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact in any
registration statement, prospectus, or any amendment or supplement
thereto or the omission or alleged omission to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall reimburse each
Indemnified Person promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this
Section
6(a) shall not apply to a Claim by an Indemnified Person to
the extent such Claim is based on an untrue statement, alleged
untrue statement, omission or alleged omission that is contained in
any information furnished in writing to the Company by any
NextGen Seller expressly for
use in connection with the preparation of the applicable
registration statement, prospectus or any amendments or supplements
thereto.
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(b) To the fullest
extent permitted by law, each NextGen Seller agrees to severally
indemnify, hold harmless and defend, in the same manner as is set
forth in Section 6(a),
the Company, each of its directors, each of its officers who signs
a registration statement covering Registrable Securities, each
underwriter, broker or other Person acting on behalf of the holders
of Registrable Securities and each Person, if any, who controls any
of the foregoing Persons within the meaning of the Securities Act
or the Exchange Act (collectively and together with an Indemnified
Person, an “Indemnified
Party”), against any Claim or Indemnified Damages to
which any of them may become subject, under the Securities Act, the
Exchange Act or otherwise, insofar as such Claim or Indemnified
Damages arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact in any registration
statement, prospectus, or any amendment or supplement thereto or
the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, occurring based on
written information furnished to the Company by such NextGen Seller or the Representative
expressly for use in connection therewith; provided, however, that no NextGen Seller shall be liable under this
Section
6(b) for the amount of any Claim or Indemnified Damages that
exceeds the net proceeds to such NextGen Seller as a result of the sale of
Registrable Securities pursuant to such registration
statement.
(c) Promptly after
receipt by an Indemnified Person or Indemnified Party under this
Section
6 of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving a
Claim, such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying
party under this Section 6,
deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be;
provided,
however, that if any Indemnified Party
shall have reasonably concluded that
there may be one or more legal or equitable defenses available to
such Indemnified Party which
are additional to or conflict with those available to the
indemnifying party, or that such claim or litigation involves or
could have an effect upon matters beyond the scope of the indemnity
agreement provided hereunder, the indemnifying party shall not have
the right to assume the defense of such action on behalf of
such Indemnified Party (but
shall have the right to participate therein with counsel of its
choice) and such indemnifying party shall reimburse such
Indemnified Party for that portion of
the fees and expenses of any counsel retained by the
Indemnified Party which is reasonably
related to the matters covered by the indemnity agreement provided
hereunder. The Indemnified Party or the Indemnified Person,
as the case may be, shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such
action or claim by the Indemnifying Party or Indemnified Person, as
the case may be, and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or claim. The
indemnifying party shall keep the Indemnified Party or Indemnified
Person, as applicable, fully apprised at all times as to the status
of the defense or any settlement negotiations with respect thereto.
No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its written consent,
provided, however, that the
indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the
consent of the Indemnified Party or Indemnified Person, as
applicable, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party or Indemnified Person, as applicable, of
a release from all liability in respect to such claim or
litigation. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of
any such action shall not relieve such indemnifying party of any
liability to the Indemnified Party or Indemnified Person, as
applicable, under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend
such action.
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(d) The indemnification
required by this Section
6 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when
bills are received or Indemnified Damages are
incurred.
(e) The indemnity
agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to
the law.
7. CONTRIBUTION.
If the indemnification provided for hereunder is
held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any Claim or Indemnified Damages,
then the indemnifying party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amounts paid
or payable by such Indemnified Party as a result of such Claim or
Indemnified Damages in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of
the Indemnified Party on the other in connection with the
statements or omissions which resulted in such Claim or Indemnified
Damages, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the Indemnified
Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the
Indemnified Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties agree that it would
not be just and equitable if contribution pursuant hereto were
determined by pro rata allocation or by any other method or allocation
which does not take account of the equitable considerations
referred to herein. No Person guilty or liable of fraudulent
misrepresentation shall be entitled to contribution from any
Person.
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8.
ASSIGNMENT OF
REGISTRATION RIGHTS.
The
Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Representative, except as permitted by the terms of the Purchaser
Shareholders Agreement and the Purchase Agreement. Each NextGen Seller may assign its rights
hereunder to any purchaser or transferee of Registrable Securities,
subject to the terms of the Purchaser Stockholders Agreement and
the Purchase Agreement; provided,
however, no NextGen Seller
shall assign any of its rights hereunder to a Person not already a
party to this Agreement as a NextGen Seller unless and until such
Person executes and delivers to the Company a joinder to this
Agreement, pursuant to which such Person will thereupon become a
party to, and be bound by and obligated to comply with the terms
and provisions of this Agreement as a NextGen Seller
hereunder.
9.
MISCELLANEOUS.
(a) A Person is deemed
to be a holder of Registrable Securities whenever such Person owns
or is deemed to own of record such Registrable Securities. If the
Company receives conflicting instructions, notices or elections
from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such
Registrable Securities.
(b) All notices and
other communications under this Agreement shall be in writing and
shall be given by personal delivery, nationally recognized
overnight courier or certified mail at the following addresses (or
to such other address as a Party may have specified by notice given
to the other Party pursuant to this provision):
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If to
the Company:
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Smart
Server, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxx
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With a
copy to (which shall not constitute notice or service of
process):
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Akerman
LLP
000
Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxx
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If to
the Representative or any NextGen Seller:
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NextGen
Dealer Solutions, LLC
000 X.
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000Xxxxxx, XX 00000
Attn:
Xxxxxx Xxxxxxxx
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With a
copy to (which shall not constitute notice or service of
process):
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Offit
Xxxxxx, P.A.
0000
Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxx, XX 00000
Attn:
Xxxxx X. Xxxxxxx, Esquire
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Any
such notice or communication shall be deemed to have been received
(i) when delivered, if personally delivered, (ii) on the next
Business Day after dispatch, if sent postage pre-paid by nationally
recognized, overnight courier guaranteeing next Business Day
delivery, and (iii) on the 5th Business Day following the date on
which the piece of mail containing such communication is posted, if
sent by certified mail, postage prepaid, return receipt
requested.
(c) If any provision of
this Agreement is invalid, illegal or unenforceable, the balance of
this Agreement shall remain in effect. Upon such determination that
any term or other provision is invalid, illegal or unenforceable,
the parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
(d) This Agreement may
be executed in one or more counterparts, each of which shall be
deemed an original but all of which together will constitute one
and the same instrument. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile, .pdf or other
electronic means shall be effective as delivery of a manually
executed counterpart to the Agreement.
(e) This Agreement
shall be governed by and construed in accordance with the internal
laws of the State of Nevada (without giving effect to any choice or
conflict of law provision or rule (whether of the State of Nevada
or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Nevada). Each of
the parties submits to the exclusive jurisdiction of any state or
federal court within [_______] County, Nevada in any action or
proceeding arising out of or relating to this Agreement and agrees
that all claims in respect of the action or proceeding shall be
exclusively heard and determined in any such court. The parties
hereby irrevocably waive, to the fullest extent permitted by
applicable Law, any objection which they may now or hereafter have
to the laying of venue of any such dispute brought in such court.
Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought. The court shall
award to the prevailing party in any dispute under this Agreement
all of its costs and expenses, including reasonable attorneys'
fees, incurred in connection with the proceeding. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10
This
Agreement and the Purchase Agreement represent the entire
understanding and agreement among the parties with respect to the
subject matter hereof and can only be amended, supplemented or
changed by written instrument making specific reference to this
Agreement signed by the Company or the Representative on behalf of
the NextGen Sellers. Any provision hereof can be waived by written
instrument signed by the Company, in the case of an amendment,
supplement, modification or waiver sought to be enforced against
the Company, or by written instrument signed by the applicable
NextGen Seller or the Representative on behalf of such NextGen
Sellers, in the case of an amendment, supplement, modification or
waiver sought to be enforced against any NextGen Seller. The waiver
by any party of a breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of
such breach or as a waiver of any other or subsequent breach. No
failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive
of any other remedies provided by law.
* * * * *
11
IN WITNESS WHEREOF, the
parties have caused this Registration Rights Agreement to be duly
executed as of day and year first above written.
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THE
COMPANY:
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SMART
SERVER, INC.
/s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title:
Chief Executive Officer
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REPRESENTATIVE:
/s/ Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx
STOCKHOLDER:
NEXTGEN
DEALER SOLUTIONS, LLC
By:/s/
Xxxxxx Xxxxxxxx
Name:
Xxxxxx Xxxxxxxx
Title:
Manager
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[Signature
Page to Registration Rights Agreement]
