REGISTRATION RIGHTS AGREEMENT
Exhibit
10.6
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated
as of February 6, 2007, is by and between DIGITAL ANGEL CORPORATION, a Delaware
corporation (the “Company”),
and
each of the entities whose names appear on the signature pages hereof. Such
entities are each referred to herein as an “Investor”
and,
collectively, as the “Investors”.
The
Company has agreed, on the terms and subject to the conditions set forth in
the
Securities Purchase Agreement, dated as of the date hereof (the “Securities
Purchase Agreement”),
to
issue and sell to each Investor named therein (A) one or more 10.25% Senior
Secured Debentures in the form attached to the Securities Purchase Agreement
(each, a “Debenture”
and,
collectively, the “Debentures”)
and
(B) a Warrant in the form attached to the Securities Purchase Agreement (each,
a
“Warrant”
and,
collectively, the “Warrants”).
Upon
the
satisfaction or waiver of certain conditions, the Company is permitted to pay
the principal and interest on the Debentures in shares (the “Stock
Option Shares”)
of its
common stock, par value $0.005 per share (the “Common
Stock”).
The
Warrants are exercisable into shares of Common Stock (the “Warrant
Shares”)
in
accordance with their terms.
In
order
to induce each Investor to enter into the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the “Securities
Act”),
and
under applicable state securities laws.
In
consideration of each Investor entering into the Securities Purchase Agreement,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1.
DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the meanings
specified:
“Effective
Date”
means
the date on which the Registration Statement is declared effective by the
Commission.
“Filing
Deadline”
means
the forty-fifth (45th) calendar day following the Closing Date.
“Holder”
means
any person owning or having the right to acquire, under the Debentures or
through exercise of the Warrants or otherwise, Registrable Securities, including
initially each Investor and thereafter any permitted assignee
thereof.
“Registrable
Securities”
means
the Stock Option Shares, the Warrant Shares and any other shares of Common
Stock
(or other securities) issued or issuable pursuant to the terms of the Debentures
or the Warrants, and any shares of capital stock issued or issuable from time
to
time (with any adjustments) in replacement of, in exchange for or otherwise
in
respect of the Stock Option Shares and the Warrant Shares.
“Registration
Deadline”
means
the ninetieth (90th)
calendar day following the Closing Date; provided,
however,
that if
the Commission reviews and has written comments to the filed Registration
Statement that would require the filing of a pre-effective amendment thereto
with the Commission, the Registration Deadline shall mean the one hundred thirty
fifth (135th)
calendar day following the Closing Date.
“Registration
Period”
has
the
meaning set forth in Section
2(b)
of this
Agreement.
“Registration
Statement”
means
a
registration statement or statements prepared in compliance with the Securities
Act and pursuant to Rule 415 under the Securities Act (“Rule
415”)
or any
successor rule providing for the offering of securities on a continuous or
delayed basis.
Capitalized
terms used herein and not otherwise defined shall have the respective meanings
specified in the Securities Purchase Agreement.
All
definitions contained in this Agreement are equally applicable to the singular
and plural forms of the terms defined. The words “hereof”, “herein” and
“hereunder” and words of similar import contained in this Agreement refer to
this Agreement as a whole and not to any particular provision of this
Agreement.
2.
REGISTRATION.
(a) Filing
of Registration Statement.
On or
before the Filing Deadline, the Company shall prepare and file with the
Commission a Registration Statement on Form S-3 as a “shelf” registration
statement under Rule 415 covering the resale of a number of shares of
Registrable Securities equal to two hundred percent (200%) of the sum of (i)
the
number of Stock Option Shares that would be issuable if the Debentures were
then
repaid in full in Stock Option Shares (and not in cash) plus
(ii)
the
number of Warrant Shares that would be issuable if the Warrants were then
exercised in full; in each such case, without regard to any limitation or
restriction on (x) the issuance of such Registrable Securities or (y) the
exercise of any Warrants. Such Registration Statement shall state, to the extent
permitted by Rule 416 under the Securities Act, that it also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon the repayment of the Debentures and exercise of the Warrants in order
to
prevent dilution resulting from stock splits, stock dividends or similar
events.
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(b) Effectiveness.
The
Company shall use its best efforts to cause the Registration Statement to become
effective as soon as practicable following the filing thereof, but in no event
later than the Registration Deadline. The Company shall respond promptly to
any
and all comments made by the staff of the Commission with respect to a
Registration Statement, and shall submit to the Commission, within two (2)
Business Days after the Company learns that no review of such Registration
Statement will be made by the staff of the Commission or that the staff of
the
Commission has no further comments on such Registration Statement, as the case
may be, a request for acceleration of the effectiveness of such Registration
Statement to a time and date not later than two (2) Business Days after the
submission of such request. The Company will maintain the effectiveness of
each
Registration Statement filed pursuant to this Agreement until the earlier to
occur of (i) the date on which all of the Registrable Securities eligible for
resale thereunder have been publicly sold pursuant to the Registration Statement
or Rule 144, and (ii) the date on which all of the Registrable Securities
remaining to be sold under such Registration Statement (in the reasonable
opinion of counsel to the Company) may be immediately sold to the public under
Rule 144(k) under the Securities Act (“Rule
144(k)”)
or any
successor provision (the period beginning on the Registration Deadline and
ending on the earliest to occur of clause
(i)
or
(ii)
above
being referred to herein as the “Registration
Period”)
or
until such later date as the Company shall determine.
(c) Registration
Default.
If (i)
the Registration Statement is not filed on or before the Filing Deadline or
declared effective by the Commission on or before the Registration Deadline,
(ii) after a Registration Statement has been declared effective by the
Commission, sales of Registrable Securities (other than such Registrable
Securities as are then freely saleable pursuant to Rule 144(k)) cannot be made
by a Holder under a Registration Statement for any reason not within the
exclusive control of such Holder or (iii) an amendment or supplement to a
Registration Statement, or a new registration statement, required to be filed
pursuant to the terms of Section
3(j),
is not
filed on or before the date required thereby (each of the foregoing clauses
(i),
(ii)
and
(iii)
being
referred to herein as a “Registration
Default”),
the
Company shall, no later than two (2) Business Days after the date on which
such
Registration Default occurs, make a cash payment to each Holder equal to such
Holder’s pro
rata
share
(based on the number of Registrable Securities then held by or issuable to
such
Holder as compared to the number of Registrable Securities then held by or
issuable to all Holders; in each case, without regard to any limitation or
restriction on (x) the issuance of such Registrable Securities or (y) the
exercise of any Warrants) of one percent (1%) of the aggregate Purchase Price
paid by all Holders (such amount, the “Registration
Default Payment Amount”).
In
addition to the foregoing payment, the Company shall, for each calendar month
in
which a Registration Default occurred and/or existed, make an additional cash
payment to each Holder equal to such Holder’s pro
rata
share of
the Registration Default Payment Amount (pro
rated
for
partial months), and the payment for each such calendar month shall be due
on
the last day of such calendar month; provided,
however,
that if
the applicable Registration Default is cured prior to the end of a calendar
month, then the cash payment for such month shall be made no later than two
(2)
Business Days after the date on which such Registration Default was cured.
Notwithstanding the foregoing, the total amount of liquidated damages payable
by
the Company pursuant to this Section
2(c) shall
be
capped at an aggregate amount of nine percent (9%) of the aggregate Purchase
Price paid by all Holders. Any such payment shall be in addition to any other
remedies available to each Holder at law or in equity, whether pursuant to
the
terms hereof, under any of the other Transaction Documents or otherwise.
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(d) Allocation
of Registered Shares.
The
initial number of Stock Option Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro
rata
among
the Holders based on the number of Registrable Securities then held by or
issuable to such Holder as compared to the number of Registrable Securities
then
held by or issuable to all Holders (in each case, without regard to any
limitation or restriction on (x) the issuance of such Registrable Securities
or
(y) the exercise of any Warrants). In the event that a Holder sells or otherwise
transfers any of such Holder’s Registrable Securities, each transferee shall be
allocated the portion of the then remaining number of Registrable Securities
included in such Registration Statement and allocable to such
Holder.
(e) Registration
of Other Securities.
During
the period beginning on the date hereof and ending on the Effective Date, the
Company shall refrain from filing any registration statement (other than (i)
a
Registration Statement filed hereunder or that otherwise includes the
Registrable Securities or (ii) a registration statement on Form S-8 with respect
to stock option plans and agreements and stock plans currently in effect and
disclosed in the Securities Purchase Agreement or the schedules thereto). In
no
event shall the Company include any securities other than Registrable Securities
on any Registration Statement filed by the Company on behalf of the Holders
pursuant to the terms hereof.
3. OBLIGATIONS
OF THE COMPANY.
In
addition to performing its obligations hereunder, including, without limitation,
those pursuant to Section
2
above,
the Company shall, with respect to each Registration Statement:
(a) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the
Securities Act or to maintain the effectiveness of such Registration Statement
during the Registration Period, or as may be reasonably requested by a Holder
in
order to incorporate information concerning such Holder or such Holder’s
intended method of distribution;
(b) as
soon
as practicable following the Closing, take all steps necessary and otherwise
use
its best efforts to secure the listing on the Principal Market of all
Registrable Securities issuable under the Debentures and upon exercise of the
Warrants, and at any Holder’s request, provide such Holder with reasonable
evidence thereof;
(c) so
long
as a Registration Statement is effective covering the resale of the applicable
Registrable Securities owned by a Holder, furnish to each Holder such number
of
copies of the prospectus included in such Registration Statement, including
a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Holder may reasonably request in order
to
facilitate the disposition of such Holder’s Registrable Securities;
(d) use
commercially reasonable efforts to register or qualify the Registrable
Securities under the securities or “blue sky” laws of such jurisdictions within
the United States as shall be reasonably requested from time to time by a
Holder, and do any and all other acts or things which may reasonably be
necessary or advisable to enable such Holder to consummate the public sale
or
other disposition of the Registrable Securities in such jurisdictions;
provided
that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such jurisdiction;
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(e) notify
each Holder immediately after becoming aware of the occurrence of any event
(but
shall not, without the prior written consent of such Holder, disclose to such
Holder any facts or circumstances constituting material non-public information)
as a result of which the prospectus included in such Registration Statement,
as
then in effect, contains an untrue statement of 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 as promptly as practicable prepare and file with the
Commission and furnish to each Holder a reasonable number of copies of a
supplement or an amendment to such prospectus as may be necessary so that such
prospectus does not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(f) use
commercially reasonable efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of such Registration Statement and,
if
such an order is issued, to use commercially reasonable efforts to obtain the
withdrawal thereof at the earliest possible time and to notify each Holder
in
writing of the issuance of such order and the resolution thereof;
(g) furnish
to each Holder, on the date that such Registration Statement, or any successor
registration statement, becomes effective, a letter, dated such date, signed
by
outside counsel to the Company and addressed to such Holder, confirming such
effectiveness and, to the knowledge of such counsel, the absence of any stop
order;
(h) [Reserved]
(i) permit
counsel for each Holder to review such Registration Statement and all amendments
and supplements thereto, and any comments made by the staff of the Commission
and the Company’s responses thereto, within three Business Days prior to the
filing thereof with the Commission (or, in the case of comments made by the
staff of the Commission, within a reasonable period of time following the
receipt thereof by the Company); and
(j) in
the
event that, at any time, the number of shares available under the Registration
Statement is insufficient to cover one hundred and twenty-five percent (125%)
of
the Registrable Securities issued or issuable to the Holders under the
Debentures and the Warrants (such number to be determined (x) using 92% of
the
VWAP or the Exercise Price, as applicable, in effect at such time and (y)
without regard to any limitation or restriction on (1) the issuance of such
Registrable Securities or (2) the exercise of any Warrants) the Company shall
promptly amend such Registration Statement or file a new registration statement,
in any event as soon as practicable, but not later than the tenth
(10th)
day
following notice from a Holder of the occurrence of such event, so that such
Registration Statement or such new registration statement, or both, covers
no
less than two hundred percent (200%) of the Registrable Securities issued or
issuable to the Holders under the Debentures and the Warrants (such number
to be
determined (x) using 92% of the VWAP or the Exercise Price, as applicable,
in
effect at such time and (y) without regard to any limitation or restriction
on
(1) the issuance of such Registrable Securities or (2) the exercise of any
Warrants). The Company shall use its best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as practicable following
the filing thereof. Any Registration Statement filed pursuant to this
Section
3(j)
shall
state that, to the extent permitted by Rule 416 under the Securities Act, such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable under the Debentures and the
Warrants in order to prevent dilution resulting from stock splits, stock
dividends or similar events. Unless and until such amendment or new Registration
Statement becomes effective, each Holder shall have the rights described in
Section
2(c)
of this
Agreement.
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4.
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OBLIGATIONS
OF EACH HOLDER.
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In
connection with the registration of Registrable Securities pursuant to a
Registration Statement, each Holder shall:
(a) within
three
(3) Business Days after receipt of written request from the Company, furnish
to
the Company in writing such information regarding itself and the intended method
of disposition of such Registrable Securities as the Company shall reasonably
request in order to effect the registration thereof;
(b) 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)
of
this
Agreement, immediately discontinue any sale or other disposition of such
Registrable Securities pursuant to such Registration Statement until the filing
of an amendment or supplement as described in such Section
3(e) or
withdrawal of the stop order referred to in such Section
3(f),
and use
commercially reasonable efforts to maintain the confidentiality of such notice
and its contents;
(c) to
the extent
required by applicable law, deliver a prospectus to the purchaser of such
Registrable Securities;
(d) promptly
notify the Company when it has sold all of the Registrable Securities
beneficially owned by it; and
(e) notify
the
Company in the event that any information supplied by such Holder in writing
for
inclusion in such Registration Statement or related prospectus contains an
untrue statement of material fact or omits to state a material fact required
to
be stated therein or necessary to make such information not misleading in light
of the circumstances then existing; and immediately discontinue any sale or
other disposition of such Registrable Securities pursuant to such Registration
Statement until the filing of an amendment or supplement to such prospectus
as
may be necessary so that such prospectus does not contain an untrue statement
of
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
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5.
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INDEMNIFICATION.
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In
the
event that any Registrable Securities are included in a Registration Statement
under this Agreement:
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(a) the
Company shall indemnify and hold harmless each Holder, the officers, directors,
employees, agents and representatives of such Holder, and each person, if any,
who controls such Holder within the meaning of the Securities Act or the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
against any losses, claims, damages, liabilities or reasonable out-of-pocket
expenses (whether joint or several) (collectively, including reasonable legal
expenses or other expenses reasonably incurred in connection with investigating
or defending same, “Losses”),
insofar as any such Losses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement under which such Registrable Securities were registered,
including any preliminary prospectus or final prospectus contained therein
or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein 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. Subject to the provisions of Section
5(c)
of this
Agreement, the Company will reimburse such Holder, and each such officer,
director, employee, agent, representative or controlling person, for any
reasonable legal expenses or other out-of-pocket expenses (promptly as such
expenses are incurred) by any such entity or person in connection with
investigating or defending any Loss; provided,
however,
that
the foregoing indemnity shall not apply to amounts paid in settlement of any
Loss if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be obligated
to indemnify any person for any Loss to the extent that such Loss arises out
of
or is based upon (i) any omission to state a material fact required to be stated
therein or necessary to make statements therein not misleading that conforms
in
all material respects to written information furnished by such person expressly
for use in such Registration Statement or (ii) a failure of such person to
deliver or cause to be delivered the final prospectus contained in the
Registration Statement and made available by the Company, if such delivery
is
required by applicable law.
(b) each
Holder who is named in such Registration Statement as a selling shareholder,
acting severally and not jointly, shall indemnify and hold harmless the Company,
the officers, directors, employees, agents and representatives of the Company,
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any Losses to the extent (and only
to the extent) that any such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact stated therein or
any
omission to state a material fact required to be stated therein or necessary
to
make statements therein not misleading that conforms in all material respects
to
written information furnished by such person expressly for use in such
Registration Statement. Subject to the provisions of Section
5(c)
of this
Agreement, such Holder will reimburse any reasonable legal or other expenses
(promptly as such expenses are incurred) by the Company and any such officer,
director, employee, agent, representative, or controlling person, in connection
with investigating or defending any such Loss; provided,
however,
that
the foregoing indemnity shall not apply to amounts paid in settlement of any
such Loss if such settlement is effected without the consent of such Holder
(which consent shall not be unreasonably withheld); and provided,
further,
that,
in no event shall any indemnity under this Section
5(b)
exceed
the amount of the net proceeds resulting from the sale of Registrable Securities
by such Holder under such Registration Statement.
7
(c) Promptly
after receipt by an indemnified party under this Section
5
of
notice of the commencement of any action or proceeding (including any
governmental action or proceeding), such indemnified party will, if a claim
in
respect thereof is to be made against any indemnifying party under this
Section 5,
promptly 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
assume the defense thereof with counsel selected by the indemnifying party
and
reasonably acceptable to the indemnified party; provided,
however,
that an
indemnified party shall have the right to retain its own counsel, with the
reasonably incurred fees and expenses of such counsel to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate under applicable
standards of professional conduct due to actual or potential conflicting
interests between such indemnified party and any other party represented by
such
counsel in such action or proceeding. The failure by an indemnified party to
notify the indemnifying party within a reasonable time following the
commencement of any action or proceeding of which the indemnified party is
aware, to the extent materially prejudicial to such indemnifying party’s ability
to defend such action, shall relieve such indemnifying party of any liability
to
the indemnified party under this Section
5
with
respect to such action or proceeding, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that
it
may have to any indemnified party otherwise than under this Section
5
or with
respect to any other action or proceeding.
(d) In
the
event that the indemnity provided in Sections
5(a) or
5(b)
is
unavailable or insufficient to hold harmless an indemnified party for any
reason, the Company and each Holder agree, severally and not jointly, to
contribute to the aggregate Losses to which the Company or such Holder (or
its
respective officers, directors, employees, agents, representatives or
controlling persons), may be subject in such proportion as is appropriate to
reflect the relative fault of the Company and such Holder in connection with
the
statements or omissions which resulted in such Losses; provided,
however,
that in
no case shall such Holder be responsible for any amount in excess of the net
proceeds resulting from the sale of Registrable Securities under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro
rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this Section
5(d),
no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who is not guilty of such fraudulent misrepresentation. For purposes of this
Section
5,
each
person who controls a Holder within the meaning of either the Securities Act
or
the Exchange Act and each officer, director, employee, agent or representative
of such Holder shall have the same rights to contribution as such Holder, and
each person who controls the Company within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of the Company shall have the same rights to contribution as
the
Company, subject in each case to the applicable terms and conditions of this
Section
5(d).
(e) The
obligations of the Company and each Holder under this Section 5
shall
survive the repayment of the Debentures and exercise of the Warrants in full,
the completion of any offering or sale of Registrable Securities pursuant to
a
Registration Statement under this Agreement, or otherwise.
8
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6.
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REPORTS.
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With
a
view to making available to each Holder the benefits of Rule 144 and any other
similar rule or regulation of the Commission that may at any time permit such
Holder to sell securities of the Company to the public without registration,
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 Exchange Act; and
(c) furnish
to such Holder, so long as such Holder owns any Registrable Securities, promptly
upon written request (i) a written statement by the Company, if true, that
it
has complied with the reporting requirements of Rule 144 and the Exchange Act,
(ii) to the extent not publicly available through the Commission’s XXXXX
database, a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company with the
Commission, and (iii) such other information as may be reasonably requested
by
such Holder in connection with such Holder’s compliance with any rule or
regulation of the Commission which permits the selling of any such securities
without registration.
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7.
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MISCELLANEOUS.
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(a) Expenses
of Registration.
Except
as otherwise provided in the Securities Purchase Agreement, all reasonable
expenses, other than underwriting discounts and commissions and fees and
expenses of counsel and other advisors to each Holder, incurred in connection
with the registrations, filings or qualifications described herein, including
(without limitation) all registration, filing and qualification fees, printers’
and accounting fees, the fees and disbursements of counsel for the Company,
and
the fees and disbursements incurred in connection with the letter described
in
Section
3(g)
of this
Agreement, shall be borne by the Company.
(b) Amendment;
Waiver.
Except
as
expressly provided herein, neither this Agreement nor any term hereof may be
amended or waived except pursuant to a written instrument executed by the
Company and the Holders of at least two-thirds (2/3) of the Registrable
Securities then held by or issuable to all Holders (without regard to any
limitation or restriction on (i) the issuance of such Registrable Securities
or
(ii) the exercise of any Warrants).
Any
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
(c) Notices.
Any
notice, demand or request required or permitted to be given by the Company
or a
Holder pursuant to the terms of this Agreement shall be in writing and shall
be
deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a Business
Day,
in which case such delivery will be deemed to be made on the next succeeding
Business Day and (ii) on the next Business Day after timely delivery to a
reputable overnight courier, addressed as follows:
9
If
to
the Company:
Digital
Angel Corporation
Suite
201
1690
South Congress
Xxxxxx
Xxxxx, Xxxxxxx 00000
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Attn:
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Xxxxx
XxXxxxx
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Tel:
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(000)
000-0000
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Fax:
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(000)
000-0000
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with
a copy (which
shall not constitute notice) to:
Winthrop
& Weinstine, P.A.
Suite
3500
000
Xxxxx
0xx
Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
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Attn:
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Xxxxxx
X. Xxxxxx
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Tel:
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(000)
000-0000
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Fax:
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(000)
000-0000
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and
if to
a Holder, to such address for such party as shall appear on the signature page
of the Securities Purchase Agreement executed by such party, or as shall be
designated by such party in writing to the other parties hereto in accordance
this Section
7(c).
(d) Assignment.
Upon
the transfer of any Debenture, Warrant or Registrable Securities by a Holder,
the rights of such Holder hereunder with respect to such securities so
transferred shall be assigned automatically to the transferee thereof, and
such
transferee shall thereupon be deemed to be a “Holder” for purposes of this
Agreement, as long as: (i) the Company is, within a reasonable period of time
following such transfer, furnished with written notice of the name and address
of such transferee, (ii) the transferee agrees in writing with the Company
to be
bound by all of the provisions hereof, and (iii) such transfer is made in
accordance with the applicable law and the requirements of the Securities
Purchase Agreement, the Debentures or the Warrants, as applicable.
(e) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall be deemed one and the same instrument.
This Agreement, once executed by a party, may be delivered to any other party
hereto by facsimile transmission.
(f) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed entirely
within the State of New York.
(g) Holder
of Record.
A
person is deemed to be a Holder 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 record owner of such
Registrable Securities.
10
(h) Entire
Agreement.
This
Agreement and the other Transaction Documents constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof,
superseding all prior agreements and understandings, whether written or oral,
between or among the parties hereto.
(i)
Headings.
The
headings in this Agreement are for convenience only and are not to be considered
in construing or interpreting this Agreement.
(j) Third
Party Beneficiaries.
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.
[Signature
Page to Follow]
11
IN
WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.
|
DIGITAL
ANGEL CORPORATION
|
|||
|
By:
|
/s/
Xxxxx X. XxXxxxx
|
||
|
Name:
Xxxxx X. XxXxxxx
|
|||
|
Title:
President and Chief Executive Officer
|
|||
|
IMPERIUM
MASTER FUND, LTD.
|
|||
|
By:
|
Imperium
Advisers, LLC
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
Name:
Xxxxxxx Xxxxxxx
|
|||
|
Title:
Counsel
|
|||
12
