REGISTRATION RIGHTS AGREEMENT
Exhibit
10.2
THIS
REGISTRATION RIGHTS AGREEMENT (this
“Agreement”)
is
made as of this 18th
day of
September, 2007, by and among Wentworth VII, Inc., a Delaware corporation (the
“Company”),
and
Xxxxx X. Xxxxxxx and Xxxxxxx Asia, Inc. (each a “Holder”
and
collectively, the “Holders”).
A. The
Company has issued a total of four million five hundred thousand (4,500,000)
shares (the “Shares”)
of
common stock, par value $.0001 per share (the “Common
Stock”)
to the
Holders. The respective ownership of each Holder is set forth on Schedule
A
to this
Agreement. The Holders aggregately own 100% of the issued and outstanding shares
of Common Stock of the Company.
B. As
partial consideration for the Holders’ purchases of the Shares, the Company
agreed to grant to the Holders the registration rights set forth herein. Unless
otherwise provided in this Agreement, capitalized terms used herein shall have
the respective meanings set forth in Section 12 hereof.
NOW,
THEREFORE,
in
consideration of the above premises and the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Holders hereby agree as
follows:
1. Registration.
(a) Demand
Registration Rights.
Commencing
on the date that is thirty (30) days after the date the
Company completes a business combination with a private company in a reverse
merger or reverse take-over transaction or other transaction after which the
Company would cease to be a shell company (as defined in Rule 12b-2 under the
Securities Exchange Act (a “Reverse
Merger”),
the
Holders shall
each have a separate one-time right, by written notice to the Company, signed
by
the Holder ("Demand
Notice"),
to
request the Company to register for resale all of the Registrable Securities
included by the Holder in the Demand Notice (“Demand
Registration Right”)
under
and in accordance with the provisions of the Securities Act for an offering
to
be made on a continuous basis pursuant to Rule 415 by filing with the Commission
a Registration Statement covering the resale of such Registrable Securities
("Demand
Registration Statement").
The Demand Registration Statement required hereunder shall be filed on
Form S-3 (except if the Company is not then eligible to register for resale
the
Registrable Securities on Form S-3, then such Registration Statement will be
on
Form S-1, Form SB-2, or such other appropriate form) by the applicable Filing
Date. The Demand Registration Statement required hereunder shall contain the
Plan of Distribution, attached hereto as Exhibit
A
(which
may be modified to respond to comments, if any, received by the Commission).
The Company shall cause the Demand Registration Statement to be declared
effective under the Securities Act as promptly as possible after the filing
thereof and shall keep the Demand Registration Statement continuously effective
under the Securities Act until the earlier of (i) two years after its Effective
Date, (ii) such time as all of the Registrable Securities covered by such
Registration Statement have been publicly sold by the Holder, or (iii) such
time
as all of the Registrable Securities covered by such Registration Statement
may
be sold by the Holder pursuant to Rule 144(k) (“Effectiveness
Period”).
By
5:00 p.m. (New York City time) on the business day immediately following the
Effective Date of such Registration Statement, the Company shall file with
the
Commission in accordance with Rule 424 under the Securities Act the final
Prospectus to be used in connection with sales pursuant to such Registration
Statement (whether or not such filing is technically required under such Rule).
(b) Restrictions
on Demand Registration.
The
Company may postpone for up to thirty (30) days the filing or the effectiveness
of a Demand Registration Statement if the Company reasonably determines that
such Demand Registration Statement would have a material adverse effect on
any
proposal or plan by the Company or any of its subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, reorganization or similar transaction;
provided, however, that in such event, the Holders shall be entitled to withdraw
their requests and, if any such requests are withdrawn, those requests for
demand registration shall not count as a request for demand registration under
Section 1(a) above and the Company shall pay all Registration Expenses in
connection with such registration. The Company may delay the filing or
effectiveness of a Demand Registration Statement hereunder only once in any
twelve-month period.
(c) Continuing
Demand Registration Rights.
If all
of the Registrable Securities to be included in the Demand Registration
Statement filed pursuant to Section 1(a) cannot be so included due to Commission
Comments, and there is not an effective Registration Statement otherwise
covering the Registrable Securities, then the Company shall prepare and file
by
the applicable Filing Date for such Registration Statement(s), such number
of
additional Registration Statements as may be necessary in order to ensure that
all Registrable Securities are covered by an existing and effective Registration
Statement. Accordingly, for example, if shares included in an initial
Registration Statement filed under Section 1(a) are removed from such
Registration Statement filed under Section 1(a) due to Commission Comments
and
Commission Comments again require shares to be removed for such newly filed
Registration Statement under this Section 1(c), then the Company will prepare
and file additional Registration Statements until such time as all such required
shares are covered by effective Registration Statements. Any Registration
Statements to be filed under this Section shall be for an offering to be made
on
a continuous basis pursuant to Rule 415, on Form S-3 (except if the Company
is
not then eligible to register for resale the Registrable Securities on Form
S-3,
then such Registration Statement will be on Form S-1, Form SB-2, or such other
appropriate form). Such Registration Statements shall contain (except if
otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the "Plan of Distribution"
attached hereto as Exhibit
A.
The
Company shall cause such Registration Statements to be declared effective under
the Securities Act as promptly as possible after the filing thereof and shall
keep such Registration Statements continuously effective under the Securities
Act during the Effectiveness Period. By 5:00 p.m. (New York City time) on the
business day immediately following the Effective Date of such Registration
Statement, the Company shall file with the Commission in accordance with Rule
424 under the Securities Act the final Prospectus to be used in connection
with
sales pursuant to such Registration Statement (whether or not such filing is
technically required under such Rule).
(d) Piggyback
Registrations Rights.
At any
time there is not an effective Registration Statement covering the Registrable
Securities, 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 the Holders a written notice
of
such determination at least twenty (20) days prior to the filing of any such
Registration Statement and shall automatically include in such Registration
Statement all Registrable Securities for resale and offer on a continuous basis
pursuant to Rule 415; provided, however, that (i) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
registration, the Company determines for any reason not to proceed with such
registration, the Company will be relieved of its obligation to register any
Registrable Securities in connection with such registration, (ii) in case of
a
determination by the Company to delay registration of its securities, the
Company will be permitted to delay the registration of Registrable Securities
for the same period as the delay in registering such other securities, (iii)
each Holder is subject to confidentiality obligations with respect to any
information gained in this process or any other material non-public information
he, she or it obtains, (iv) each Holder is subject to all applicable laws
relating to xxxxxxx xxxxxxx or similar restrictions; and (v) if all of the
Registrable Securities of the Holders cannot be so included due to Commission
Comments, then the Company may reduce the number of each Holders’ Registrable
Securities covered by such Registration Statement to the maximum number which
would enable the Company to conduct such offering in accordance with the
provisions of Rule 415.
The
Holders shall be entitled to include all Registrable Securities for resale
in
the Registration Statement filed by the Company in connection with a public
offering of equity securities by the Company after the date of this Agreement
(the “Initial
Registration Statement”),
pursuant to Rule 415, so long as (1) such shares shall not be included as part
of the underwritten offering of primary shares by the Company, unless the
Company and underwriter agree to allow the inclusion of such Registrable Shares
as part of the underwritten offering and, in such event, the Holders elect
to
include the Registrable Securities in the underwriting subject to an allocation
among all holders of registration rights in the manner set forth in Section
1(e)
hereof, (2) the underwriter approves the inclusion of such Registrable
Securities in such Initial Registration Statement, subject to customary
underwriter cutbacks applicable to all holders of registration rights, (3)
the
Holders shall enter into the underwriters’ form of lockup agreement as and to
the extent requested by the underwriters, which may require that all of the
Registrable Securities held by the Holders not be sold or otherwise transferred
without the consent of the underwriters for a period not to exceed 180 days
from
the closing of the offering contemplated by the Initial Registration Statement,
and (4) if all of the Registrable Securities of the Holders cannot be so
included due to Commission Comments, then the Company may reduce the number
of
each Holders’ Registrable Securities covered by such Registration Statement to
the maximum number which would enable the Company to conduct such offering
in
accordance with the provisions of Rule 415. The Company shall cause any
Registration Statement filed under this Section 1(d) to be declared effective
under the Securities Act as promptly as possible after the filing thereof and
shall keep such Registration Statement continuously effective under the
Securities Act during the Effectiveness Period. By 5:00 p.m. (New York City
time) on the business day immediately following the Effective Date of such
Registration Statement, the Company shall file with the Commission in accordance
with Rule 424 under the Securities Act the final Prospectus to be used in
connection with sales pursuant to such Registration Statement (whether or not
such filing is technically required under such Rule).
(e) Cutback
Provisions.
In the
event all of the Registrable Securities of the Holders cannot be included in
a
Registration Statement under Sections 1(a), 1(c) or 1(d) hereof due to
Commission Comments or underwriter cutbacks, then the Company, unless otherwise
prohibited by the Commission, shall cause the Registrable Securities of the
Holders to be included in such Registration Statement to be reduced pro rata
based on the number of registrable securities held by all holders of
registration rights.
(f) Termination
of Registration Rights.
The
registration rights afforded to the Holders under this Section 1 shall terminate
on the earliest date when all Registrable Securities of the Holders either:
(i)
have been publicly sold
by the
Holders pursuant to a Registration Statement, (ii) have
been
covered by an effective Registration Statement which has been effective for
an
aggregate period of twelve (12) months (whether or not consecutive), or (iii)
may
be
sold by the Holders pursuant to Rule 144(k).
2. Failure
to Register.
(a) If:
(i) a
Registration Statement is not filed on or prior to its Filing Date or (ii)
the
Company fails to file with the Commission a request for acceleration of a
Registration Statement in accordance with Rule 461 promulgated by the Commission
pursuant to the Securities Act, within five business days of the date that
the
Company is notified (orally or in writing, whichever is earlier) by the
Commission that such Registration Statement will not be “reviewed” or will not
be subject to further review, or (iii) prior to the effective date of a
Registration Statement, the Company fails to file a pre-effective amendment
and
otherwise respond in writing to comments made by the Commission in respect
of
such Registration Statement within 10 business days after the receipt of
comments by or notice from the Commission that such amendment is required in
order for such Registration Statement to be declared effective, or (iv) a Demand
Registration Statement registering for resale the Registrable Securities is
not
declared effective by the Commission by the Effectiveness Date of the
Registration Statement, or (v) all of the Registrable Securities are not
registered for resale pursuant to one or more effective Registration Statements
on or before the one year anniversary of the closing of a Reverse Merger or
(vi)
after the effective date of a Registration Statement, such Registration
Statement ceases for any reason to remain continuously effective as to all
Registrable Securities included in such Registration Statement, or the Holders
are otherwise not permitted to utilize the Prospectus therein to resell such
Registrable Securities, for more than 10 consecutive calendar days or more
than
an aggregate of 15 calendar days (which need not be consecutive calendar days)
during any 12-month period (any such failure or breach being referred to as
an
“Event”,
and
for purposes of clause (i), (iv) and (v) the date on which such Event occurs,
and for purpose of clause (ii) the date on which such five business day period
is exceeded, and for purpose of clause (iii) the date which such 10 calendar
day
period is exceeded, and for purpose of clause (vi) the date on which such 10
or
15 calendar day period, as applicable, is exceeded being referred to as
“Event
Date”),
then,
in addition to any other rights the Holders may have hereunder or under
applicable law, on each such Event Date and on each monthly anniversary of
each
such Event Date (if the applicable Event shall not have been cured by such
date)
until the applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as partial liquidated damages and not as a penalty, equal to
1.5% of the value of such unregistered Registrable Securities as of the date
of
the Reverse Merger, as determined by the Board of Directors based on the
offering price of securities sold by the Company in a securities offering
consummated simultaneously with the Reverse Merger or, if no securities offering
shall occur, in good faith by the Board of Directors (the “Value”) for any
unregistered Registrable Securities then held by such Holder. The parties agree
that the maximum aggregate liquidated damages payable to any Holder under this
Agreement shall be 15% of the Value. If the Company fails to pay any partial
liquidated damages pursuant to this Section in full within seven days after
the
date payable, the Company will pay interest thereon at a rate of 18% per annum
(or such lesser maximum amount that is permitted to be paid by applicable law)
to the Holder, accruing daily from the date such partial liquidated damages
are
due until such amounts, plus all such interest thereon, are paid in full. The
partial liquidated damages pursuant to the terms hereof shall apply on a daily
pro rata basis for any portion of a month prior to the cure of an
Event.
(b) If,
within 12 months after closing of a Reverse Merger, Registration Statements
covering all of the Registrable Securities are not effective, the Holders will
each have the option (the “Repurchase
Option”),
at
any time thereafter, to require the Company to repurchase all of the Holder’s
Registrable Securities for the Repurchase Price (defined hereafter) or
some
lesser portion of the Holder’s Registrable Securities for a pro-rata portion of
the Repurchase Price. To exercise the Repurchase Option, a Holder shall (i)
provide written notice to the Company at any time after the 12-month anniversary
of the closing of a Reverse Merger, where such notice shall include (a) the
number of Registrable Securities the Holder desires to be repurchased by the
Company, (b) the Repurchase Price of such Registrable Securities and (c)
instructions as to how the Company shall render payment of the Repurchase Price
(the “Repurchase
Notice”)
and
(ii) surrender the original certificates representing the number of Registrable
Securities to be repurchased, duly endorsed for transfer. Upon receipt of the
Repurchase Notice and original Registrable Securities from the Holder, the
Company shall, within 7 business days, deliver the Repurchase Price, as per
the
instructions in the Repurchase Notice, to the Holder and cancel the original
certificates representing the Registrable Securities on the books and records
of
the Company. The “Repurchase
Price”
shall
be equal to the Value. No such repurchase shall be applicable if the Holders
are
able to publicly sell their Registrable Securities under an applicable exemption
from registration, without volume or manner of sale limitations.
3. Registration
Procedures.
Whenever any Registrable Securities are to be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration
and
sale 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 Commission a Registration Statement
with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become effective.
(b) The
Company shall prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
Prospectus used in connection with such Registration Statement, which Prospectus
is to be filed pursuant to Rule 424 promulgated under the Securities Act, as
may
be necessary to keep such Registration Statement effective at all times during
the Effectiveness Period, and, during such period, comply with the provisions
of
the Securities Act with respect to the disposition of all Registrable Securities
of the Company covered by such 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. In the case of amendments and supplements to a
Registration Statement which are required to be filed pursuant to this Agreement
by reason of the Company filing a report on Form 10-QSB, Form 10-KSB, Form
10-Q,
Form 10-K or any analogous report under the Securities Exchange Act, the Company
shall have incorporated such report by reference into such Registration
Statement, if applicable, or shall file such amendments or supplements with
the
Commission on the same day on which the Securities Exchange Act report is filed
which created the requirement for the Company to amend or supplement such
Registration Statement.
(c) The
Company shall furnish to each seller of Registrable Securities in any
Registration Statement, without charge, (i) promptly after the same is prepared
and filed with the Commission at least one copy of such Registration Statement
and any amendment(s) thereto, including financial statements and schedules,
all
documents incorporated therein by reference, if requested by such seller, all
exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any
Registration Statement, ten (10) copies of the Prospectus included in such
Registration Statement and all amendments and supplements thereto (or such
other
number of copies as such seller may reasonably request) and (iii) such other
documents, including copies of any preliminary or final Prospectus, as such
seller may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by such seller.
(d) The
Company shall use its best efforts to (i) register and qualify, unless an
exemption from registration and qualification applies, the resale by any seller
of the Registrable Securities covered by a Registration Statement under such
other securities or "blue sky" laws of all applicable jurisdictions in the
United States, (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 Effectiveness Period, (iii) take such other actions as may be necessary
to
maintain such registrations and qualifications in effect at all times during
the
Effectiveness Period, and (iv) 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.
(e) The
Company shall use its best efforts to prevent the issuance of any stop order
or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of 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 Holder of any Registrable Securities being sold 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.
(f) The
Company shall notify the Holders in writing of the happening of any event,
as
promptly as practicable after becoming aware of such event, as a result of
which
the Prospectus included in a Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission to state a material fact
required to be stated therein or necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading
(provided that in no event shall such notice contain any material, nonpublic
information), and, subject to Section 3(r), promptly prepare a supplement or
amendment to such Registration Statement to correct such untrue statement or
omission, and deliver ten (10) copies of such supplement or amendment to each
Holder (or such other number of copies as any Holder may reasonably request).
(g) The
Company shall promptly notify the Holders 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 Holders by
facsimile on the same day of such effectiveness and by overnight mail), (ii)
of
any request by the Commission for amendments or supplements to a 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.
(h) If
the
Holders are required under applicable securities laws to be described in a
Registration Statement as an underwriter, at the reasonable request of any
Holder, the Company shall furnish to such Holder, on the date of the
effectiveness of such Registration Statement and thereafter from time to time
on
such dates as the Holder may reasonably request (i) a letter, dated such date,
from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to
underwriters in an underwritten public offering, addressed to the Holder, and
(ii) an opinion, dated as of such date, of counsel representing the Company
for
purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the
Holder.
(i) If
the
Holders are required under applicable securities laws to be described in a
Registration Statement as an underwriter, then at the request of any Holder
in
connection with such Holder's due diligence requirements, the Company shall
make
available for inspection by (i) the Holder, (ii) the Holder’s legal counsel, and
(iii) one firm of accountants or other agents retained by the Holder
(collectively, the "Inspectors"),
all
pertinent financial and other records, and pertinent corporate documents and
properties of the Company (collectively, the "Records"),
as
shall be reasonably deemed necessary by each Inspector, and cause the Company's
officers, directors and employees to supply all information which any Inspector
may reasonably request; provided, however, that each Inspector shall agree
to
hold in strict confidence and shall not make any disclosure (except to the
Holder) or use of any Record or other information which the Company determines
in good faith to be confidential, and of which determination the Inspectors
are
so notified, unless (a) the disclosure of such Records is necessary to avoid
or
correct a misstatement or omission in any Registration Statement or is otherwise
required under the Securities Act, (b) the release of such Records is ordered
pursuant to a final, non-appealable subpoena or order from a court or government
body of competent jurisdiction, or (c) the information in such Records has
been
made generally available to the public other than by disclosure in violation
of
this or any other agreement of which the Inspector has knowledge. Each Holder
agrees that it shall, upon learning that disclosure of such Records is sought
in
or by a court or governmental body of competent jurisdiction or through other
means, give prompt notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential. Nothing herein (or in
any
other confidentiality agreement between the Company and the Holder) shall be
deemed to limit the Holder's ability to sell Registrable Securities in a manner
which is otherwise consistent with applicable laws and regulations.
(j)
The
Company shall hold in confidence and not make any disclosure of information
concerning the Holders provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to
the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure
of
such information concerning the Holders is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to the Holders and allow the Holders, at the Holders’ expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(k)
The
Company shall use its best efforts either to (i) cause all of the Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange on which securities of the same class or series issued by the Company
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange, or (ii) secure designation and
quotation of all of the Registrable Securities covered by a Registration
Statement on The NASDAQ Global Market, The NASDAQ Capital Market or the American
Stock Exchange, or (iii) if, despite the Company's best efforts to satisfy,
the
preceding clauses (i) and (ii) the Company is unsuccessful in satisfying the
preceding clauses (i) and (ii), to secure the inclusion for quotation on the
Over-the-Counter Bulletin Board for such Registrable Securities and, without
limiting the generality of the foregoing, to use its best efforts to arrange
for
at least two market makers to register with the National Association of
Securities Dealers, Inc. ("NASD")
as
such with respect to such Registrable Securities. The Company shall pay all
fees
and expenses in connection with satisfying its obligation under this Section
3(k).
(l)
The
Company shall cooperate with the Holders who hold Registrable Securities being
offered and, to the extent applicable, facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legend) representing
the
Registrable Securities to be offered pursuant to a Registration Statement and
enable such certificates to be in such denominations or amounts, as the case
may
be, as any Holder may reasonably request and registered in such names as the
Holder may request.
(m)
If
requested by any Holder, the Company shall (i) as soon as practicable
incorporate in a Prospectus supplement or post-effective amendment such
information as the Holder reasonably requests to 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 offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such offering;
(ii) as soon as practicable make all required filings of such Prospectus
supplement or post-effective amendment after being notified of the matters
to be
incorporated in such Prospectus supplement or post-effective amendment; and
(iii) as soon as practicable, supplement or make amendments to any Registration
Statement if reasonably requested by the Holder holding any Registrable
Securities.
(n)
The
Company shall use its best efforts to cause the Registrable Securities covered
by a 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.
(o)
The
Company shall make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the period
covered thereby, an earnings statement (in form complying with, and in the
manner provided by, the provisions of Rule 158 under the Securities Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the effective date of a Registration
Statement.
(p)
The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the Commission in connection with any registration
hereunder.
(q)
Within
two (2) business days after a Registration Statement which covers Registrable
Securities is ordered effective by the Commission, 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 Holder whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the Commission in the
form
attached hereto as Exhibit
B
and the
Irrevocable Transfer Agent Instructions in the form attached hereto as
Exhibit
C.
(r)
Notwithstanding
anything to the contrary herein, at any time after the Effective Date of a
Registration Statement, the Company may delay the disclosure of material,
non-public information concerning the Company the disclosure of which at the
time is not, in the good faith opinion of the Board of Directors of the Company
and its counsel, in the best interest of the Company and, in the opinion of
counsel to the Company, otherwise required (a "Grace
Period");
provided, that the Company shall promptly (i) notify the Holder in writing
of
the existence of material, non-public information giving rise to a Grace Period
(provided that in each notice the Company will not disclose the content of
such
material, non-public information to the Holder) and the date on which the Grace
Period will begin, and (ii) notify the Holder in writing of the date on which
the Grace Period ends; and, provided further, that no Grace Period shall exceed
five (5) consecutive days and during any three hundred sixty five (365) day
period such Grace Periods shall not exceed an aggregate of twenty (20) days
and
the first day of any Grace Period must be at least five (5) trading days after
the last day of any prior Grace Period (each, an "Allowable
Grace Period").
For
purposes of determining the length of a Grace Period above, the Grace Period
shall begin on and include the date the Holder receives the notice referred
to
in clause (i) and shall end on and include the later of the date the Holder
receives the notice referred to in clause (ii) and the date referred to in
such
notice. The provisions of Section 3(e) hereof shall not be applicable during
the
period of any Allowable Grace Period. Upon expiration of the Grace Period,
the
Company shall again be bound by Section 3(f) with respect to the information
giving rise thereto unless such material, non-public information is no longer
applicable. Notwithstanding anything to the contrary, the Company shall cause
its transfer agent to deliver unlegended shares of Common Stock to a transferee
of the Holder in connection with any sale of Registrable Securities with respect
to which the Holder has entered into a contract for sale, and delivered a copy
of the Prospectus included as part of the applicable Registration Statement
(unless an exemption from such Prospectus delivery requirements exists), prior
to the Holder’s receipt of the notice of a Grace Period and for which the Holder
has not yet settled.
4. Obligations
of the Holders.
(a) At
least
five (5) business days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify the Holders in writing of
the
information the Company requires from each Holders if the Holder’s Registrable
Securities are to be included in such Registration Statement. It shall be a
condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of the Holder that the Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as
shall
be reasonably required to effect the effectiveness of the registration of such
Registrable Securities and shall execute such documents in connection with
such
registration as the Company may reasonably request.
(b) The
Holders, by the Holders’ acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder, unless
any Holder has notified the Company in writing of the Holder’s election to
exclude all of the Holder’s Registrable Securities from such Registration
Statement.
(c) The
Holders agree that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Sections 3(e) or 3(f), the Holders will
immediately discontinue disposition of Registrable Securities pursuant to any
Registration Statement(s) covering such Registrable Securities until the
Holders’ receipt of the copies of the supplemented or amended Prospectus
contemplated by Sections 3(e) or 3(f) or receipt of notice that no supplement
or
amendment is required. Notwithstanding anything to the contrary, the Company
shall cause its transfer agent to deliver unlegended shares of Common Stock
to a
transferee of the Holders in connection with any sale of Registrable Securities
with respect to which the Holders have entered into a contract for sale prior
to
the Holders’ receipt of a notice from the Company of the happening of any event
of the kind described in Sections 3(e) or 3(f) and for which the Holders have
not yet settled.
(d) The
Holders covenant and agree that they will comply with the Prospectus delivery
requirements of the Securities Act as applicable to it or an exemption therefrom
in connection with sales of Registrable
Securities pursuant to a Registration Statement.
5. Registration
Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, fees and disbursements of custodians, and
fees
and disbursements of counsel for the Company and one counsel for all Holders
and
all independent certified public accountants, underwriters (excluding discounts,
commissions and placement agent fees) and other Persons retained by the Company
(all such expenses being herein called “Registration
Expenses”),
shall
be borne by the Company. Further, the Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then
listed.
6. Indemnification.
In
the
event any Registrable Securities are included in a Registration Statement under
this Agreement:
(a)
To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Holder, the directors, officers, members,
partners, employees, agents, representatives of, and each Person, if any, who
controls the Holder within the meaning of the Securities Act or the Securities
Exchange Act (each, an "Indemnified
Person"),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable 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 Commission, 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 (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon: (i) any untrue statement or alleged untrue statement of
a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction
in
which Registrable Securities are offered ("Blue
Sky Filing"),
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, (ii) any
untrue statement or alleged untrue statement of a material fact contained in
any
preliminary Prospectus if used prior to the effective date of such Registration
Statement, or contained in the final Prospectus (as amended or supplemented,
if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission or alleged omission to state therein any material
fact necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not misleading,
(iii) any violation or alleged violation by the Company of the Securities Act
or
the Securities Exchange Act, any other law, including, without limitation,
any
state securities law, or any rule or regulation thereunder relating to the
offer
or sale of the Registrable Securities pursuant to a Registration Statement
or
(iv) any violation of this Agreement (the matters in the foregoing clauses
(i)
through (iv) being, collectively, "Violations").
Subject to Section 6(c), the Company shall reimburse the Indemnified Persons,
promptly as such expenses are incurred and are due and payable, for any 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): (i) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Indemnified Person
for such Indemnified Person expressly for use in connection with the preparation
of the Registration Statement or any such amendment thereof or supplement
thereto, if such Prospectus was timely made available by the Company pursuant
to
Section 3(c) and (ii) shall not be available to the extent such Claim is based
on a failure of the Holder to deliver or to cause to be delivered the Prospectus
made available by the Company, including a corrected Prospectus, if such
Prospectus or corrected Prospectus was timely made available by the Company
pursuant to Section 3(c); and (iv) shall not apply to amounts paid in settlement
of any Claim if such settlement is effected without the prior written consent
of
the Company, which consent shall not be unreasonably withheld or delayed. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the transfer
of
the Registrable Securities by the Holder pursuant to Section 10.
(b)
In
connection with any Registration Statement in which the Holder is participating,
the Holder agrees to indemnify, hold harmless and defend, to the same extent
and
in the same manner as is set forth in Section 6(a), the Company, each of its
directors, each of its officers who signs the Registration Statement and each
Person, if any, who controls the Company within the meaning of the Securities
Act or the Securities Exchange Act (each, an "Indemnified
Party"),
against any Claim or Indemnified Damages to which any of them may become
subject, under the Securities Act or the Securities Exchange Act or otherwise,
insofar as such Claim or Indemnified Damages arise out of or are based upon
any
Violation, in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by the Holder expressly for use in connection with
such
Registration Statement; and, subject to Section 6(c), the Holder will reimburse
any legal or other expenses reasonably incurred by an Indemnified Party in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior
written consent of the Holder, which consent shall not be unreasonably withheld
or delayed; provided, further, however, that the Holder shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages as
does
not exceed the net proceeds to the Holder as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of
such Indemnified Party and shall survive the transfer of the Registrable
Securities by the Holder pursuant to Section 10.
(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 an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses of
not
more than one counsel for such Indemnified Person or Indemnified Party to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. The Indemnified Party or Indemnified Person shall
cooperate fully with the indemnifying party in connection with any negotiation
or defense of any such action or Claim by the indemnifying party 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
reasonably 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 prior written consent, provided, however, that the indemnifying party shall
not unreasonably withhold, delay or condition its consent. No indemnifying
party
shall, without the prior written consent of the Indemnified Party or Indemnified
Person, 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 of
a
release from all liability in respect to such Claim or litigation, and such
settlement shall not include any admission as to fault on the part of the
Indemnified Party. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Indemnified Party
or
Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. 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 Person or Indemnified Party under this Section
6,
except to the extent that the indemnifying party is prejudiced in its ability
to
defend such action.
(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.
To the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no Person involved
in the sale of Registrable Securities which Person is guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Securities Act)
in
connection with such sale shall be entitled to contribution from any Person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities pursuant to such Registration
Statement
8. Participation
in Underwritten Registrations.
No
Person may participate in any registration hereunder which is underwritten
or
sold through a placement agent unless such Person (i) agrees to sell such
Person’s securities on the basis provided in any underwriting or placement
agency arrangements approved by the Company, and (ii) completes and executes
all
questionnaires, powers of attorney, indemnities, underwriting or placement
agency agreements and other documents required under the terms of such
underwriting or placement agency arrangements.
9. Reports
under Securities Exchange Act.
With a
view to making available to the Holder the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the
Commission that may at any time permit the Holder to sell securities of the
Company to the public without registration ("Rule
144"),
commencing not later than the completion of the Reverse Merger the Company
agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Securities Act and the Securities Exchange Act so long
as
the Company remains subject to such requirements and the filing of such reports
and other documents is required for the applicable provisions of Rule 144;
and
(c) furnish
to the Holders so long as the Holders own Registrable Securities, promptly
upon
request, (i) a written statement by the Company, if true, that it has complied
with the reporting requirements of Rule 144, the Securities Act and the
Securities Exchange Act, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested to
permit the Holders to sell such securities pursuant to Rule 144 without
registration.
10. Assignment
of Registration Rights.
The
rights under this Agreement shall be automatically assignable by the Holder
to
any transferee of all or any portion of the Holder’s Registrable Securities if:
(i) the Holder agrees in writing with the transferee or assignee to assign
such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a)
the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act and applicable state securities laws; and (iv) at or before
the
time the Company receives the written notice contemplated by clause (ii) of
this
sentence the transferee or assignee agrees in writing with the Company to be
bound by all of the provisions contained herein.
11. Amendment
of Registration Rights.
Provisions of this Agreement may be amended and the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and the Holders.
12. Definitions.
(a) “Commission”
means
the Securities and Exchange Commission.
(b) “Commission
Comments”
means
written comments pertaining solely to Rule 415 which are received by the Company
from the Commission, and a copy of which shall have been provided by the Company
to the Holder, to a filed Registration Statement which limit the amount of
shares which may be included therein to a number of shares which is less than
such amount sought to be included thereon as filed with the
Commission.
(c) “Effective
Date”
means,
as to a Registration Statement, the date on which such Registration Statement
is
first declared effective by the Commission.
(d) “Filing
Date”
means
(a) with respect to the Registration Statement required to be filed under
Section 1(a), the 30th day following the receipt by the Company of the Demand
Notice, and (b) with respect to any Registration Statements required to be
filed
under Section 1(c), each such Registration Statement shall be filed by the
six-month anniversary of the Effective Date of the Registration Statement
required to be filed under Section 1(a) and for all subsequent Registration
Statements, the six-month anniversary of the Effective Date of the immediately
preceding Registration Statement required to be filed under Section 1(c), as
applicable.
(e) “Person”
means
an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
(f) "Prospectus"
means
the prospectus included in the 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 the 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
(g) “Registrable
Securities”
means
(i) the Shares issued to the Holder and held by the Holder or its assignees,
(ii) any shares of Common Stock issued to the Holder (whether issued before
or
after the date hereof) and held by the Holder or its assignees, (iii) any Common
Stock issuable upon conversion of any securities convertible into shares of
Common Stock (including the Preferred Shares) or upon exercise of any warrants,
options or similar instruments (whether such convertible securities, warrants,
options or similar instruments are issued before or after the date hereof),
and
(iv) any other shares of Common Stock or any other securities issued or issuable
with respect to the securities referred to in clause (i), (ii) or (iii) by
way
of a stock dividend or stock split or in connection with an exchange or
combination of shares, recapitalization, merger, consolidation or other
reorganization.
(h) "Registration
Statement"
means
any registration statement required to be filed hereunder (which, at the
Company’s option, may be an existing registration statement of the Company
previously filed with the Commission, but not declared effective), including
(in
each case) the Prospectus, amendments and supplements to the 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 the Registration Statement
(i) "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.
(j) “Rule
424"
means
Rule 424 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.
(k) “Securities
Act”
means
the Securities Act of 1933, as amended from time to time.
(l) “Securities
Exchange Act”
means
the Securities Exchange Act of 1934, as amended from time to time.
13. 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 such record owner of such
Registrable Securities.
(b) Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one business day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall
be:
If
to the
Company:
Wentworth
VII, Inc.
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx
Xxxxx, Xxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
Attention:
Xxxxx Xxxxxxx, Director
and
If
to the
Holders, to the addresses set forth on Schedule
A:
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by a
courier or overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight
delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof.
(d) All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or other jurisdictions)
that
would cause the application of the laws of any jurisdictions other than the
State of Delaware. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the State of Colorado,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to
such
party at the address for such notices to it under this Agreement and agrees
that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
If
any
action or proceeding relating to this Agreement or the enforcement of any
provision of this Agreement is brought against any party hereto, the prevailing
party shall be entitled to recover reasonable attorneys’ fees, costs and
disbursements in addition to any other relief to which the prevailing party
may
be entitled.
(e) This
Agreement and the instruments referenced herein and therein constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This
Agreement and the instruments referenced herein and therein supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
(f) Subject
to the requirements of Section 10, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
(g) The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(h) This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement. This Agreement may also
be
executed by electronic signature of such Person.
(i) Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
(j) All
consents and other determinations required to be made by the Holder pursuant
to
this Agreement shall be made, unless otherwise specified in this Agreement,
by
the Holder.
(k) The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
(l) This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
(m) The
obligations of the Holder hereunder are several and not joint with the
obligations of any other Holder, and no provision of this Agreement is intended
to confer any obligations on a Holder vis-à-vis any other Holder. Nothing
contained herein, and no action taken by any Holder pursuant hereto, shall
be
deemed to constitute the Holder as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holder
are
in any way acting in concert or as a group with respect to such obligations
or
the transactions contemplated herein.
(n) Currency.
As used
herein, "Dollar", "US Dollar" and "$" each mean the lawful money of the United
States.
*
* * * *
*
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement as of the date first
written above.
|
HOLDERS:
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Xxxxx X. Xxxxxxx |
||
|
XXXXXXX
ASIA, INC.
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
|
Name:
Xxxx Xxxxxxx
Title:
Director
|
||
|
COMPANY:
|
||
|
WENTWORTH
VII, INC.
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
Title:
President
|
||
Schedule
A
|
Name
and Address of Holder
|
Shares
of Common Stock
|
|
|
Xxxxx
X. Xxxxxxx
000X
Xxxxxxxxx Xxxxxxxxx, Xxxxx 00
Xxxx
Xxxxx, XX 00000
|
125,000
|
|
|
Xxxxxxx
Asia, Inc.
Xxxxx
00 / Xxxxx 0000
Xxxxx
Xxxxxxx, Xxxxx 2
0
Xxxxxxxx Xxxx
Xxxxxxxx
000000, Xxxxx
|
4,375,000
|
Exhibit
A
Plan
of Distribution
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be
at
fixed or negotiated prices. The Selling Stockholders may use any one or more
of
the following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits Investors;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion
of the block as principal to facilitate the
transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
|
·
|
to
cover short sales made after the date that this Registration Statement
is
declared effective by the Commission;
|
|
·
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated
price per share;
|
| · |
a
combination of any such methods of sale; and
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of Common Stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
Upon
the
Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Common
Stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to
this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and
of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such the shares of Common Stock were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference
in
this prospectus, and (vi) other facts material to the transaction. In addition,
upon the Company being notified in writing by a Selling Stockholder that a
donee
or pledgee intends to sell more than 500 shares of Common Stock, a supplement
to
this prospectus will be filed if then required in accordance with applicable
securities law.
The
Selling Stockholders also may transfer the shares of Common Stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this
prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of the
securities will be paid by the Selling Stockholder and/or the purchasers. Each
Selling Stockholder has represented and warranted to the Company that it
acquired the securities subject to this registration statement in the ordinary
course of such Selling Stockholder's business and, at the time of its purchase
of such securities such Selling Stockholder had no agreements or understandings,
directly or indirectly, with any person to distribute any such
securities.
The
Company has advised each Selling Stockholder that it may not use shares
registered on this Registration Statement to cover short sales of Common Stock
made prior to the date on which this Registration Statement shall have been
declared effective by the Commission. If a Selling Stockholder uses this
prospectus for any sale of the Common Stock, it will be subject to the
prospectus delivery requirements of the Securities Act. The Selling Stockholders
will be responsible to comply with the applicable provisions of the Securities
Act and Securities Exchange Act, and the rules and regulations thereunder
promulgated, including, without limitation, Regulation M, as applicable to
such
Selling Stockholders in connection with resales of their respective shares
under
this Registration Statement.
The
Company is required to pay all fees and expenses incident to the registration
of
the shares, but the Company will not receive any proceeds from the sale of
the
Common Stock. The Company has agreed to indemnify the Selling Stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
EXHIBIT
B
FORM
OF NOTICE OF EFFECTIVENESS
OF
REGISTRATION STATEMENT
[Transfer
Agent]
[Address]
Attention:
Re: Wentworth
VII, Inc. (“Company”)
Ladies
and Gentlemen:
[We
are][I am] counsel to _________, a _________ corporation (the "Company"), and
have represented the Company in connection with that certain Registration Rights
Agreement with _____________ (the “Holder”) (the "Registration Rights
Agreement") pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Registration Rights
Agreement), under the Securities Act of 1933, as amended (the "1933 Act").
In
connection with the Company's obligations under the Registration Rights
Agreement, on ____________ ___, 200_, the Company filed a Registration Statement
on Form SB-2 (File No. 333-_____________) (the "Registration Statement") with
the Securities and Exchange Commission (the "SEC") relating to the Registrable
Securities which names the Holder as a selling stockholder
thereunder.
In
connection with the foregoing, [we][I] advise you that a member of the SEC's
staff has advised [us][me] by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER
TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and [we][I] have no
knowledge, after telephonic inquiry of a member of the SEC's staff, that any
stop order suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or threatened by, the SEC and the
Registrable Securities are available for resale under the 1933 Act pursuant
to
the Registration Statement.
This
letter shall serve as our standing instruction to you that the shares of Common
Stock are freely transferable by the Holder pursuant to the Registration
Statement. You need not require further letters from us to effect any future
legend-free issuance or reissuance of shares of Common Stock to the Holders
as
contemplated by the Company's Irrevocable Transfer Agent Instructions dated
___________, 200_.
Very
truly yours,
EXHIBIT
B
IRREVOCABLE
TRANSFER AGENT INSTRUCTIONS
_______________,
2007
[Addressed
to Transfer Agent]
_______________________
_______________________
Attention: [________________________]
Ladies
and Gentlemen:
Reference
is made to that certain Registration Rights Agreement, dated as of September
__,
2007 (the "Agreement"),
by
and among Wentworth VII, Inc., a Delaware corporation (the "Company"),
and
_________________________ (the "Holder"),
pursuant to which the Company is obligated to register the Holders shares (the
"Common
Shares")
of
Common Stock of the Company, par value $.0001 per share (the "Common
Stock").
This
letter shall serve as our irrevocable authorization and direction to you
(provided that you are the transfer agent of the Company at such time) to issue
shares of Common Stock upon transfer or resale of the Common Shares.
You
acknowledge and agree that so long as you have previously received (a) written
confirmation from the Company's legal
counsel that either (i) a registration statement covering resales of the Common
Shares has been declared effective by the Securities and Exchange Commission
(the "SEC")
under
the Securities Act of 1933, as amended (the "1933
Act"),
or
(ii) sales of the Common Shares may be made in conformity with Rule 144 under
the 1933 Act (“Rule
144”),
(b) if
applicable, a copy of such registration statement,
and
(c)
notice from legal counsel to the Company or any Holder that a transfer of Common
Shares has been effected either pursuant to the registration statement (and
a
prospectus delivered to the transferee) or pursuant to Rule 144,
then
as
promptly as practicable,
you
shall
issue the certificates representing the Common Shares registered
in the names of such transferees,
and
such certificates shall not bear any legend restricting transfer of the Common
Shares thereby and should not be subject to any stop-transfer
restriction; provided,
however, that if such Common Shares and are not registered for resale under
the
1933 Act or able to be sold under Rule 144, then the certificates for such
Common Shares shall bear the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN
THE
ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A GENERALLY
ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS
SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE
SECURITIES.
A
form of
written confirmation from the Company's outside legal counsel that a
registration statement covering resales of the Common Shares has been declared
effective by the SEC under the 1933 Act is attached hereto.
Please
execute this letter in the space indicated to acknowledge your agreement to
act
in accordance with these instructions. Should you have any questions concerning
this matter, please contact me at ____________.
|
Very
truly yours,
|
||
|
Wentworth
VII, Inc. (“Company”)
|
||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
THE
FOREGOING INSTRUCTIONS ARE
ACKNOWLEDGED
AND AGREED TO
this
___
day of ________________, 2007
[TRANSFER
AGENT]
By:
_________________________
Name:
_______________
Title:
________________
Enclosures
Copy:
Holder
