Exhibit 4b
MASTER REGISTRATION RIGHTS AGREEMENT
MASTER REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of
August 6, 1997 by and among DYNAGEN, INC., a Delaware corporation, with
headquarters located at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"COMPANY"), and the undersigned parties who execute a counterpart signature of
this Agreement (together with affiliates, the "INITIAL INVESTORS").
WHEREAS:
A. In connection with the Securities Purchase Agreement of even date
herewith by and between the Company and the Initial Investors (the "SECURITIES
PURCHASE AGREEMENT"), the Company has agreed, upon the terms and subject to the
conditions contained therein, to issue and sell to the Initial Investors shares
of the Company's Series A Preferred Stock (the "PREFERRED SHARES") that are
convertible into shares (collectively, the "CONVERSION SHARES") of the Company's
common stock (the "COMMON STOCK") and Warrants (the "WARRANTS") that are
exercisable for shares of Common Stock (the "WARRANT SHARES"), all upon the
terms and subject to the limitations and conditions set forth in the Certificate
of Designation with respect to the Series A Preferred Stock or the Warrants, as
applicable; and
B. To induce the Initial Investors to execute and deliver the
Securities Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"1933 ACT");
NOW, THEREFORE, in consideration of the 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
Initial Investors hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have
the following meanings:
(i) "CLOSING DATE," with respect to each Investor,
means the date of the consummation of the financing in which such Investor
purchased debt or equity securities of the Company pursuant to which the Company
has granted registration rights.
(ii) "INVESTORS" means the Initial Investors, any
transferees or assignees who agree to become bound by the provisions of this
Agreement in accordance with Section 9 hereof and any party that becomes a party
to this Agreement in accordance with Section 10(b) hereof.
(iii) "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a Registration
Statement or Statements in compliance with the
1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule
providing for offering securities on a continuous basis ("RULE 415"), and the
declaration or ordering of effectiveness of such Registration Statement by the
United States Securities and Exchange Commission (the "SEC").
(iv) "POTENTIAL MATERIAL EVENT" means any of the
following: (a) the possession by the Company of material information not ripe
for disclosure in a registration statement, which shall be evidenced by
determinations in good faith by the Board of Directors of the Company that
disclosure of such information in the registration statement would be
detrimental to the business and affairs of the Company; or (b) any material
engagement or activity by the Company which would, in the good faith
determination of the Board of Directors of the Company, be adversely affected by
disclosure in a registration statement at such time, which determination shall
be accompanied by a good faith determination by the Board of Directors of the
Company that the registration statement would be materially misleading absent
the inclusion of such information.
(v) "REGISTRABLE SECURITIES" means (i) the Conversion
Shares and the Warrant Shares issued or issuable, (ii) shares of Common Stock
issued on a Closing Date or issuable pursuant to securities of the Company
issued on a Closing Date to an Investor that has signed a counterpart signature
page to this Agreement pursuant to Section 10(b) hereof and (iii) any shares of
capital stock issued or issuable as a dividend on or in exchange for or
otherwise with respect to any of the foregoing.
(vi) "REGISTRATION STATEMENT" means a registration
statement of the Company under the 1933 Act or an amendment to an existing
registration statement to add Registrable Securities.
(b) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Securities Purchase
Agreement.
2. REGISTRATION.
(a) Mandatory Registration. The Company shall, as soon as
practicable after each Closing Date but in no event more than 45 days following
such Closing Date, file with the SEC a Registration Statement on Form S-3 (or,
if Form S-3 is not then available, on such form of Registration Statement as is
then available to effect a registration of the Registrable Securities, subject
to the consent of the Investors (as determined pursuant to Section 10(a)
hereof), which consent will not be unreasonably withheld conditioned or delayed)
covering the resale of the Registrable Securities issued or issuable to such
Investors pursuant to securities of the Company issued on each such Closing
Date. The Registration Statement, to the extent allowable under the 1933 Act and
the Rules promulgated thereunder (including Rule 416), shall state that such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of the Preferred
Shares and/or exercise of the Warrants to prevent dilution resulting from stock
splits, stock dividends or similar transactions. The Company shall use its best
efforts to cause such registration to become and remain effective
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(including the taking of such steps as are necessary to obtain the removal of
any stop orders); provided, that the Investors shall furnish the Company, within
five (5) business days of the Company's written request, with such appropriate
information in connection therewith (whether requested prior to or after the
filing of the Registration Statement with the SEC) as the Company shall
reasonably request in writing. The Registration Statement (and each amendment or
supplement thereto, and each request for acceleration of effectiveness thereof)
shall be provided to (and subject to the approval of) the Investors and their
counsel prior to its filing or other submission. The number of shares of Common
Stock initially included in such Registration Statement shall be no less than
one hundred fifty percent (150%) of the shares of Common Stock issued to the
Investors on such Closing Date or issuable pursuant to the securities of the
Company issued to the Investors on such Closing Date (assuming the Conversion
Price set forth in Section 5(b)(ii)(A) of the Certificate of Designation). The
Company further undertakes to take all steps necessary to ensure that a
Registration Statement is, or Registration Statements are, effective at all
times during the Registration Period (as defined below) with respect to all
Registrable Securities and the resale thereof.
(b) Eligibility for Form S-3. The Company represents and
warrants that, as of the date hereof, it meets the requirements for the use of
Form S-3 for registration of the sale by the Investors of the Registrable
Securities and the Company shall file all reports required to be filed by the
Company with the SEC in a timely manner, and take any and all such other actions
as may be reasonably necessary or appropriate so as to maintain such eligibility
for the use of Form S-3.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
(a) The Company shall, as soon as practicable after each
Closing Date but in no event more than 45 days following such Closing Date,
prepare and file promptly with the SEC a Registration Statement and thereafter
use its Best Efforts (as hereinafter defined) to cause such Registration
Statement relating to Registrable Securities to promptly become effective, but
in no event to become effective more than 90 days following such Closing Date,
and to keep the Registration Statement effective pursuant to Rule 415 at all
times until such date as is the earlier of (i) the date on which all of the
Registrable Securities registered under such Registration Statement have been
sold and no Preferred Shares, Warrants or other securities of the Company issued
on such Closing Date are outstanding or (ii) the date on which all of such
Registrable Securities (in the opinion of counsel to the Investors) may be
immediately publicly sold without registration and (iii) two years from such
Closing Date (the "REGISTRATION PERIOD"), which Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein and all documents incorporated by reference therein) shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein, or necessary to make the statements therein not
misleading. The Company shall furnish to the Investors copies of reasonably
complete drafts of all such documents proposed to be filed (including exhibits,
if any), and any such Investor shall have the opportunity to object, within
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three (3) business days, to any information pertaining solely to such Investor
that is contained therein and the Company will make the corrections reasonably
requested by such Investor with respect to such information prior to filing any
such Registration Statement or amendment. Any period of review and revision
resulting from such review that extends beyond five (5) business days shall be
added to the time in which the Registration Statement is to be filed and no
penalty shall be assessed with respect to such period. If the Company fails to
cause such Registration Statement to become effective within 90 days following
the Closing Date due to a Corporation Failure, as defined in the Certificate of
Designation, the Conversion Price, as defined in the Certificate of Designation,
shall be adjusted as set forth in paragraph 5(b) of the Certificate of
Designation. As used in Section 3(a), (b), (d), (f), (i) and (m) hereof, "Best
Efforts" shall include the taking of any and all actions necessary or
appropriate with respect thereto, including timely response to all comments and
correspondence received (including from the SEC), the filing or providing of any
further drafts and other documents as may be required, and the like.
(b) The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration Statement
effective at all times during the Registration Period. Without limiting any of
the Company's obligations under this Agreement, in the event the number of
shares available under a Registration Statement filed pursuant to this Agreement
is insufficient to cover all of the Registrable Securities issued or issuable
upon conversion of the Preferred Shares and/or exercise of the Warrants, the
Company shall amend the Registration Statement, or file a new Registration
Statement (on the short form available therefore, if applicable), or both, so as
to cover all of the Registrable Securities, in each case, as soon as
practicable, but in any event within twenty (20) days after the necessity
therefor arises (based on the market price of the Common Stock and other
relevant factors on which the Company reasonably elects to rely). The Company
shall use its Best Efforts to cause such amendment and/or new Registration
Statement to become effective as soon as possible following the filing thereof.
(c) The Company shall furnish to each Investor whose
Registrable Securities are included in the Registration Statement and its legal
counsel (i) promptly after the same is prepared and publicly distributed, filed
with the SEC or received by the Company, one copy of the Registration Statement
and any amendment thereto, each preliminary prospectus and prospectus and each
amendment or supplement thereto, and, in the case of the Registration Statement
referred to in Section 2(a), each letter written by or on behalf of the Company
to the SEC or the staff of the SEC, and each material item of correspondence
from the SEC or the staff of the SEC, in each case relating to such Registration
Statement (other than any portion thereof that contains information for which
the Company has sought confidential treatment), and (ii) such number of copies
of a prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Investor.
(d) The Company shall use its Best Efforts to (i) register and
qualify the Registrable Securities covered by the Registration Statement under
such other securities or "blue sky" laws of such jurisdictions in the United
States as the Investors who hold a majority in interest
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of the Registrable Securities being offered reasonably request, (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as may be necessary, appropriate or available to
maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions 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 (a) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), (b)
subject itself to general taxation in any such jurisdiction, (c) file a general
consent to service of process in any such jurisdiction, (d) provide any
undertakings that cause the Company undue expense or burden, or (e) make any
change in its charter or bylaws, which in each case the Board of Directors of
the Company determines to be contrary to the best interests of the Company and
its stockholders. The Company shall promptly notify each Investor who holds
Registrable Securities of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any of the
Registrable Securities for sale under the securities or "blue sky" laws of any
jurisdiction in the United States or its receipt of actual notice of the
initiation or threatening of any proceeding for such purpose.
(e) Notwithstanding the foregoing, if at any time or from time
to time after the date of effectiveness of the Registration Statement, the
Company notifies the Investors in writing of the existence of a Potential
Material Event, the Investors shall not offer or sell any Registrable Shares, or
engage in any other transaction involving or relating to the Registrable Shares,
from the time of the giving of notice with respect to a Potential Material Event
until the earlier of (i) twenty (20) days from the receipt of notice of such
Potential Material Event, or (ii) such Investor receives written notice from the
Company that such Potential Material Event either has been disclosed to the
public or no longer constitutes a Potential Material Event; provided, however,
that the Company shall use its best efforts to minimize any such suspension and
under all circumstances the Company may not so suspend the right to such holders
of Registrable Shares for more than two periods of twenty (20) days each in the
aggregate during any 12-month period during the period the Registration
Statement is required to be in effect; and provided, further, that there shall
be an interval of no less than 45 days between such two twenty (20) day periods.
(f) The Company shall use its Best Efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, and, if such an order is issued, to obtain the
withdrawal of such order at the earliest possible moment and to notify each
Investor who holds Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance of such order
and the resolution thereof.
(g) For a period of five (5) business days prior to filing
with the SEC, the Company shall permit a single firm of counsel designated by
the Investors representing a majority of the Registrable Securities held by the
Investors (on an as converted and as exercised basis) to review the Registration
Statement and all amendments and supplements thereto. Any period of review and
revision resulting from any such review that extends beyond five (5) business
days
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shall be added to the time in which registration is required to be filed and
effective, as appropriate, and no penalty shall be assessed with respect to such
period.
(h) The Company shall make available for inspection by (i) any
Investor, (ii) any underwriter participating in any disposition pursuant to the
Registration Statement, (iii) one firm of attorneys and one firm of accountants
or other agents retained by the Investors, and (iv) one firm of attorneys
retained by all such underwriters (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 to enable each Inspector to exercise its due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information which any Inspector may reasonably request
for purposes of such due diligence; provided, however, that each Inspector shall
hold in confidence and shall not make any disclosure 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 determined to be necessary by the Investors and the Company
to avoid or correct a misstatement or omission in any Registration Statement,
(b) the release of such Records is ordered pursuant to a subpoena or other 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. The
Company shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and substance satisfactory to the Company)
with the Company with respect thereto, containing terms substantially similar to
those contained in this Section 3(i). Each Investor 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 shall be deemed to limit
the Investor's ability to sell Registrable Securities in a manner which is
otherwise consistent with applicable laws and regulations.
(i) The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state
securities laws, or other applicable law, (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 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 or any
other agreement. The Company agrees that it shall, upon learning that disclosure
of such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
notice to such Investor prior to making such disclosure, and allow the Investor,
at its expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, such information.
(j) The Company shall use its Best Efforts to secure the
designation and quotation of all the Registrable Securities covered by the
Registration Statement on the NASDAQ
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SmallCap Market, if the listing of such Registrable Securities is then permitted
under the rules and regulations of such market.
(k) The Company shall provide a transfer agent and registrar,
which may be a single entity, for the Registrable Securities not later than
sixty (60) days from the Closing Date.
(l) The Company shall promptly facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold pursuant to the Registration
Statement and enable such certificates to be in such denominations or amounts,
as the case may be, as the managing underwriter or underwriters, if any, or the
Investors may reasonably request and registered in such names as the managing
underwriter or underwriters, if any, or the Investors may request.
(m) The Company shall use its Best Efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable each holder thereof to consummate disposition of Registrable
Securities.
4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
(a) 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 a particular Investor that such Investor shall
furnish to the Company, within five (5) business days of the Company's written
request, 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 registration of such
Registrable Securities and shall execute within five (5) business days of
receipt by such Investor such documents in connection with such registration as
the Company may reasonably request.
(b) Each Investor, by such Investor's 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 the
Registration Statement hereunder, unless such Investor has notified the Company
in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from the Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from
the Company of the happening of a Potential Material Event as set forth in
Section 3(e), such Investor will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities in accordance with Section 3(e).
(d) Without limiting an Investor's rights under Section 2(a),
no Investor may participate in any underwritten distribution hereunder unless
such Investor (i) agrees to sell such
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Investor's Registrable Securities on the basis provided in any underwriting
arrangements in usual and customary form entered into by the Company, (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements, and (iii) agrees to pay its pro rata share of
all underwriting discounts and commissions and any expenses in excess of those
payable by the Company pursuant to Section 5 below.
(e) Each Investor whose Registrable Securities are included in
a Registration Statement understands that the 1933 Act may require delivery of a
prospectus relating thereto in connection with any sale thereof pursuant to such
Registration Statement and each such Investor shall use its reasonable best
efforts to comply with the applicable prospectus delivery requirements of the
1933 Act in connection with any such sale.
(f) Each Investor agrees to notify the Company promptly, but
in any event within seventy-two (72) hours after the date on which all
Registrable Securities owned by such Investor have been sold by such Investor,
so that the Company may comply with its obligation to terminate the Registration
Statement in accordance with Item 512 of Regulation S-K or Regulation S-B, as
the case may be.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including all registration, listing
and qualifications fees, printers and accounting fees and the fees and
disbursements of counsel for the Company, shall be borne by the Company. All
fees and disbursements of counsel to the holders of Registrable Securities, any
expenses incurred as a result of any investigation pursuant to Section 3(h), any
underwriting discounts and commissions and all other expenses of such holders
not contained in the previous sentence shall be borne by the holders of
Registrable Securities.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company will
indemnify, hold harmless and defend (i) each Investor who is a seller of
Registrable Securities under the Registration Statement, and (ii) the directors,
officers, partners, employees, agents and each person who controls any such
Investor within the meaning of the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 ACT"), if any, (each, an "INDEMNIFIED PERSON"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "CLAIMS") to which any of them may become subject under the 1933 Act,
the 1934 Act or otherwise, insofar as any such Claim arises out of or is based
upon: (i) any untrue statement or alleged untrue statement of a material fact in
a Registration Statement or
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the omission or alleged omission to state therein a material fact required to be
stated or necessary to make the statements therein not misleading or (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 SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading (the matters in the foregoing
clauses (i) and (ii) being, collectively, "VIOLATIONS"). Subject to the
restrictions set forth in Section 6(c) with respect to the number of legal
counsel, the Company shall reimburse the Investors and each such underwriter or
controlling person, promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable expenses incurred by
them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply to a Claim 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 any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement, preliminary prospectus or final prospectus, or any amendment thereof
or supplement thereto; (ii) 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; and (iii) with
respect to any preliminary prospectus, shall not inure to the benefit of any
Indemnified Person if the untrue statement or omission of material fact
contained in the preliminary prospectus was corrected on a timely basis in the
prospectus, as then amended or supplemented, if such corrected prospectus was
timely made available by the Company pursuant to Section 3(c) hereof. 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 Investors pursuant to Section 9.
Notwithstanding anything to the contrary contained herein, any Investor that
does not fulfill its obligations under Sections 2(a), 3(a) or 4(a) hereof within
the period of time specified in such Sections shall not be an Indemnified Person
and shall not be entitled to indemnification pursuant to this Section 6.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees severally and not jointly
to indemnify, hold harmless and defend, to the same extent and in the same
manner set forth in Section 6(a), the Company, each of its directors, each of
its officers who signs the Registration Statement, each person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act, and any
other stockholder selling securities pursuant to the Registration Statement or
any of its directors or officers or any person who controls such stockholder
within the meaning of the 1933 Act or the 1934 Act (collectively, an
"INDEMNIFIED PARTY"), against any Claim to which any of them may become subject,
under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out
of or is 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 such Investor expressly for use
in connection with such Registration Statement, preliminary prospectus or final
prospectus, or any amendment or supplement thereto; and subject to Section 6(c)
such Investor will reimburse any legal or other expenses (promptly as such
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expenses are incurred and are due and payable) reasonably incurred by them in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided, further, however, that the Investor shall be
liable under this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the net proceeds to such Investor 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 Investors pursuant to Section 9.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), 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 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 indemnifying party shall pay for only one
separate legal counsel for the Indemnified Persons or the Indemnified Parties,
as applicable, and such legal counsel shall be selected by Investors holding a
majority-in-interest of the Registrable Securities included in the Registration
Statement to which the Claim relates, if the Investors are entitled to
indemnification hereunder, or the Company, if the Company is entitled to
indemnification hereunder, as applicable. 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 actually prejudiced in its ability to
defend such action. 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 such expense, loss, damage or liability is incurred
and is due and payable.
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
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which it would otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that (i) no contribution shall be made
under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6, (ii) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation, and (iii)
contribution (together with any indemnification or other obligations under this
Agreement) by any seller of Registrable Securities shall be limited in amount to
the amount of proceeds received by such seller from the sale of such Registrable
Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to the Investors the benefits of Rule
144 promulgated under the 1933 Act or any other similar rule or regulation of
the SEC that may at any time permit the Investors to sell securities of the
Company to the public without registration ("RULE 144"), 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 SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act so long as
the filing of such reports and other documents is required for the sale of the
Registrable Securities pursuant to Rule 144; and
(c) furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
1933 Act and the 1934 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 Investors to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights of an Investor hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
automatically assignable by each Investor to any transferee of at least 30% of
the Preferred Shares and/or Warrants, or Registrable Securities of such Investor
if (i) the Investor 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) following such transfer or assignment, the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act and
applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of
-11-
this sentence, the transferee or assignee agrees in writing with the Company to
be bound by all of the provisions contained herein, (v) such transfer shall have
been made in accordance with the applicable requirements of the Securities
Purchase Agreement, and (vi) such transferee shall be an "accredited investor"
as that term defined in Rule 501 of Regulation D promulgated under the 1933 Act.
10. AMENDMENT OF REGISTRATION RIGHTS.
(a) 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 written consent of the
Company and Investors who hold at least 80% of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section 10 shall be binding
upon each Investor and the Company.
(b) Notwithstanding the foregoing, the Company may, without
the consent of the existing Investors, amend this Agreement at any time to
include additional parties so long as the Company and such additional parties
execute a counterpart signature page to this Agreement. When this Agreement is
so amended, such additional parties shall be "Investors" hereunder and shall be
entitled to all benefits and bound by all obligations hereunder.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
(b) Notices required or permitted to be given hereunder shall
be in writing and shall be deemed to be sufficiently given when personally
delivered (by hand, by courier, by telephone line facsimile transmission or
other means) or sent by facsimile or overnight courier,
If to the Company, to:
DynaGen, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Investors as set forth in the subscription agreements pursuant to
which the Investors purchased securities of the Company, or at such other
address as each such party furnishes by
-12-
notice given in accordance with this Section 11(b), and shall be effective, when
personally delivered, upon receipt and, when so sent by facsimile or overnight
courier.
(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) This Agreement shall be enforced, governed by and
construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof. Each of the parties consents to
the jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions.
(e) This Agreement and the subscription agreements pursuant to
which the Investors purchased securities of the Company (including all schedules
and exhibits thereto) 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 such subscription
agreements 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 9 hereof, this
Agreement shall inure to the benefit of and be binding upon the 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 two or more
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.
(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 the 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.
-13-
(j) All consents and other determinations to be made by the
Investors pursuant to this Agreement shall be made by the Investors holding a
majority of the Registrable Securities (determined as if all Preferred Shares
and Warrants then outstanding had been converted or exercised, respectively,
into Registrable Securities).
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK.]
-14-
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
DYNAGEN, INC.
By: /s/ Xxxx X. Xxxx
------------------------
Title: President
---------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Arab Commerce Bank, Ltd.
----------------------------------
(print exact name of Investor)
By: [illegible]
-------------------------------
Title: Co. Secretary
----------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Swedbank Luxembourg
-------------------------------
(print exact name of Investor)
By: [illegible]
----------------------------
Title: Senior Account Manager
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxx Xxxxxxx
-------------------------------
(print exact name of Investor)
By: /s/ Xxxx Xxxxxxx
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxx Xxxxxxx & Sons Inc.
------------------------------
(print exact name of Investor)
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Title: President
------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxxx X. Xxxxxx
-------------------------------
(print exact name of Investor)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxx Xxxxxx
-------------------------------
(print exact name of Investor)
By: /s/ Xxxxxx Xxxxxx
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxx Xxxxxx, Xx.
-------------------------------
(print exact name of Investor)
By: /s/ Xxxx Xxxxxx, Xx.
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxx X. Xxxxxxx
------------------------------
(print exact name of Investor)
By: /s/ Xxx X. Xxxxxxx
---------------------------
Title:
------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
C. Xxxxxx Xxxxxx
-------------------------------
(print exact name of Investor)
By: /s/ C. Xxxxxx Xxxxxx
-----------------------------
Title:
--------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxx X. Xxxxx
------------------------------
(print exact name of Investor)
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Title:
------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxxxxxxx Xxxxxx
-------------------------------
(print exact name of Investor)
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxxx and Xxxxx Tennis
-------------------------------
(print exact name of Investor)
By: /s/ Xxxxxxx Tennis
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Xxxxxx X. Xxxxxxx
--------------------------------
(print exact name of Investor)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Title:
--------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
A. Xxxxxx Xxxxxxxxxx
-----------------------------------
(print exact name of Investor)
By: /s/ A. Xxxxxx Xxxxxxxxxx
-------------------------------
Title:
-----------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
J. Xxxxxxx Xxxxx
-------------------------------
(print exact name of Investor)
By: /s/ J. Xxxxxxx Xxxxx
----------------------------
Title:
-------------------------
DYNAGEN, INC.
MASTER REGISTRATION RIGHTS AGREEMENT
Counterpart Signature Page
If you are in agreement with the foregoing, please sign the form of
acceptance on the enclosed counterpart of this Agreement and return the same to
the Company, whereupon, this Agreement shall become a binding Agreement among
us.
Very truly yours,
Guarantee & Trust Co. FBO X. Xxxxxx Chess
------------------------------------------
(print exact name of Investor)
By: /s/ X. Xxxxxx Chess
---------------------------------------
Title:
------------------------------------
