REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
December
19,
2006, by and between Host
America Corp., a Colorado corporation (the “Company”), Shelter Island
Opportunity Fund, LLC (the “Purchaser”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of
the
date hereof, by and between the Purchaser and the Company (as amended, modified
or supplemented from time to time, the “Securities Purchase Agreement”), and
pursuant to the Notes and the Warrants referred to therein.
The
Company and the Purchaser hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Securities Purchase Agreement shall have the meanings given such terms in the
Securities Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
“Commission”
means the Securities and Exchange Commission.
“Common
Stock”
means shares of the Company’s common stock, $0.001 par value.
“Effectiveness
Date”
means (i) with respect to the initial Registration Statement required to be
filed hereunder, a date no later than ninety (90) days following the applicable
Filing Date, and (ii) with respect to each additional Registration Statement
required to be filed hereunder, a date no later than thirty (30) days following
the applicable Filing Date.
“Effectiveness
Period”
shall have the meaning set forth in Section 2(a).
“Exchange
Act”
means the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing
Date”
means, (i) with respect to the initial Registration Statement required to be
filed hereunder, a date no later than sixty (60) days following the date hereof,
and (ii) with respect to shares of Common Stock issuable to the Holder as a
result of the Warrants
or otherwise, sixty (60) days after the occurrence of such event.
“Holder”
or
“Holders”
means the Purchaser or any Purchaser’s affiliates or transferees to the extent
any of them hold Registrable Securities.
“Indemnified
Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall have the meaning set forth in Section 5(c).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means the prospectus included in 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.
“Registrable
Securities”
means the shares of Common Stock issuable upon exercise of the
Warrants.
“Registration
Statement”
means each registration statement required to be filed hereunder, including
the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act,
as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act,
as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means the Securities Act of 1933, as amended, and any successor
statute.
“Securities
Purchase Agreement”
shall have the meaning provided above.
“Trading
Market”
means any of the Pink Sheets, the OTCBB, NASDAQ SmallCap Market, the Nasdaq
National Market, the American Stock Exchange or the New York Stock
Exchange.
“Warrants”
means the purchase warrants issued pursuant to the Securities Purchase
Agreement.
2. Registration.
(a) On
or prior to the applicable Filing Date the Company shall prepare and file with
the Commission a Registration Statement covering the Registrable Securities
for
an offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement shall be on Form S-1 (except if the Company is not then
eligible to register for resale the Registrable Securities on Form S-1, in
which
case such registration shall be on another appropriate form in accordance
herewith). The Company shall cause the Registration Statement to become
effective and remain effective as provided herein. The Company shall use its
reasonable commercial efforts to cause the Registration Statement
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to
be declared effective under the Securities Act as promptly as possible after
the
filing thereof, but in any event no later than the Effectiveness Date. The
Company shall use its reasonable commercial efforts to keep the Registration
Statement continuously effective under the Securities Act until the date which
is the earlier date of when (i) all Registrable Securities have been sold or
(ii) all Registrable Securities may be sold immediately without registration
under the Securities Act and without volume restrictions pursuant to Rule
144(k), as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Company’s
transfer agent and the affected Holders (the “Effectiveness
Period”).
(b) If:
(i) the Registration Statement is not filed on or prior to the Filing Date;
(ii)
the Registration Statement is not declared effective by the Commission by the
Effectiveness Date; (iii) after the Registration Statement is filed with and
declared effective by the Commission, the Registration Statement ceases to
be
effective (by suspension or otherwise) as to all Registrable Securities to
which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an additional
registration statement filed and declared effective) for a period of time which
shall exceed 90
days in the aggregate per year (defined as a period of 365 days commencing
on
the date the Registration Statement is declared effective) or more than 20
consecutive calendar days; or (iv) the Common Stock is not listed or quoted,
or
is suspended from trading on any Trading Market for a period of five (5)
consecutive Trading Days (provided the Company shall not have been able to
cure
such trading suspension within 90 days of the notice thereof or list the Common
Stock on another Trading Market); (any such failure or breach being referred
to
as an “Event,” and for purposes of clause (i) or (ii) the date on which such
Event occurs, or for purposes of clause (iii) the date on which such 90 day
or
20 consecutive day period (as the case may be) is exceeded, or for purposes
of
clause (iv) the date on which such ten (10) Trading Day
period is exceeded, being referred to as an “Event Date”), then until the
applicable Event is cured, the Company shall pay to each
Holder an amount in cash, as liquidated damages and not as a penalty, equal
to
(a) 1% for each thirty (30) day period (prorated for partial periods) and (b)
1.5% for each additional thirty (30) day period (prorated for partial periods),
in each case, on a daily basis of the original principal amount of the Term
Note
(as defined in the Securities Purchase Agreement) held by such Holder.
While such Event continues, such liquidated damages shall be paid not less
often
than each thirty (30) days. Any unpaid liquidated damages as of the date when
an
Event has been cured by the Company shall be paid within three (3) days
following the date on which such Event has been cured by the
Company.
(c) Within
three business days of the Effectiveness Date, the Company shall cause its
counsel to issue a blanket opinion in the form attached hereto as Exhibit A,
to
the transfer agent stating that the shares are subject to an effective
registration statement and can be reissued free of restrictive legend
upon
notice of a sale by a Purchaser and confirmation by such Purchaser that it
has
complied with the prospectus delivery requirements, provided that the Company
has not advised the transfer agent orally or in writing that the opinion has
been withdrawn. Copies of the blanket opinion required by this Section 2(c)
shall be delivered to the Purchaser within the time frame set forth
above.
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(d) If
any requested registration made pursuant to this Section 2 involves an
underwritten offering and the Manager of such offering shall advise the Company
that, in its view, the number of securities requested to be included in
such
registration by the Holders of Registrable Securities, the Company or any other
Persons exercising Piggyback Rights exceeds the largest number that can be
sold
in an orderly manner in such registration within a price range acceptable to
the
majority participating holders, then the
securities requested to be registered shall be adjusted or cut-back as deemed
necessary and appropriate by said Manager.
3. Registration
Procedures.
If and whenever the Company is required by the provisions hereof to effect
the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) prepare
and file with the Commission the Registration Statement with respect to such
Registrable Securities, respond as promptly as possible to any comments received
from the Commission, and use its best efforts to cause the Registration
Statement to become and remain effective for the Effectiveness Period with
respect thereto, and promptly provide to the
Purchaser copies of all filings and Commission letters of comment relating
thereto;
(b) prepare
and file with the Commission such amendments and supplements to the Registration
Statement and the Prospectus used in connection therewith as may be necessary
to
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by the Registration Statement and to
keep
such Registration Statement effective until the expiration of the Effectiveness
Period;
(c) furnish
to the Purchaser such number of copies of the Registration Statement and the
Prospectus included therein (including each preliminary Prospectus) as the
Purchaser reasonably may request to facilitate the public sale or disposition
of
the Registrable Securities covered by the Registration Statement;
(d) use
its commercially reasonable efforts to register or qualify the
Purchaser’ Registrable Securities covered by the Registration Statement under
the securities or “blue sky” laws of such jurisdictions within the United States
as the Purchaser may reasonably request, provided, however, that the Company
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such
jurisdiction;
(e) list
the Registrable Securities covered by the Registration Statement with any
securities exchange on which the Common Stock of the Company is then listed;
(f) immediately
notify the Purchaser at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event of
which
the Company has knowledge as a result of which the Prospectus contained in
such
Registration Statement, as then in effect, includes an untrue statement of
a
material
4
fact
or omits to state a material fact required to be stated therein or necessary
to
make the statements therein not misleading in light of the circumstances then
existing; and
(g) make
available for inspection by the Purchaser and any attorney, accountant or other
agent retained by any Purchaser, all publicly available, non-confidential
financial and other records, pertinent corporate documents and properties of
the
Company, and cause the Company’s officers, directors and employees to supply all
publicly available, non-confidential information reasonably requested by the
attorney, accountant or agent of such
Purchaser.
4. Registration
Expenses.
All expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or “blue sky” laws, fees of the
NASD, transfer taxes, fees of transfer agents and registrars, reasonable fees
of, and disbursements incurred by, one counsel for the Holders, are called
“Registration Expenses”. All selling commissions applicable to the sale of
Registrable Securities, including any fees and disbursements of any special
counsel to the Holders beyond those included in Registration Expenses, are
called “Selling Expenses.” The Company shall only be responsible for all
Registration Expenses.
5. Indemnification.
(a) In
the event of a registration of any Registrable Securities under the Securities
Act pursuant to this Agreement, the Company will indemnify and hold harmless
the
Purchaser, and their respective officers, directors and each other person,
if
any, who controls such Purchaser within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser, or such persons may become subject under the Securities Act
or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Securities were registered under the Securities
Act
pursuant to this Agreement, any preliminary Prospectus or final Prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or
are based upon the omission or alleged omission to state therein a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Purchaser, and each such person for any
reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case if
and
to the extent that any such loss, claim, damage or liability arises out of
or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished by or on
behalf of the Purchaser or any such person in writing specifically for use
in
any such document.
(b) In
the event of a registration of the Registrable Securities under the Securities
Act pursuant to this Agreement, each
Purchaser will indemnify and hold harmless the Company, and its officers,
directors and each other person, if any, who
5
controls
the Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
persons may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact which was furnished in writing by such
Purchaser to the Company expressly for use in (and such information is contained
in) the Registration Statement under which such Registrable Securities were
registered under the Securities Act pursuant to this Agreement, any preliminary
Prospectus or final Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, and will reimburse the Company and each
such person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that each
Purchaser will be liable in any such case if and only to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished in writing to the Company by or on behalf
of such Purchaser specifically for use in any such document. Notwithstanding
the
provisions of this paragraph, Purchasers shall not be
required to indemnify any person or entity in excess of the amount of the
aggregate net proceeds received by such Purchaser in respect of Registrable
Securities in connection with any such registration under the Securities
Act.
(c) Promptly
after receipt by a party entitled to claim indemnification hereunder (an
“Indemnified Party”) of notice of the commencement of any action, such
Indemnified Party shall, if a claim for indemnification in respect thereof
is to
be made against a party hereto obligated to indemnify such Indemnified Party
(an
“Indemnifying Party”), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from any
liability which it may have to such Indemnified Party other than under this
Section 5 and shall only relieve it from any liability which it may have to
such
Indemnified Party under this Section 5 if and to the extent the Indemnifying
Party is materially prejudiced by such omission. In
case any such action shall be brought against any Indemnified Party and it
shall
notify the Indemnifying Party of the commencement thereof, the Indemnifying
Party shall be entitled to participate in and, to the extent it shall wish,
to
assume and undertake the defense thereof with counsel satisfactory to such
Indemnified Party, and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume and undertake the defense
thereof, the Indemnifying Party shall not be liable to such Indemnified Party
under this Section 5 for any legal expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof; if the Indemnified
Party retains its own counsel, then the Indemnified Party shall pay all fees,
costs and expenses of such counsel, provided, however, that, if the defendants
in any such action include both the Indemnified Party and the Indemnifying
Party
and the Indemnified Party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional
to
those available to the Indemnifying Party or if the interests of the Indemnified
Party reasonably may be deemed to conflict with the interests of the
Indemnifying Party, the Indemnified Party shall have the right to select one
separate
6
counsel
and to assume such legal defenses and otherwise to participate in the defense
of
such action, with the reasonable expenses and fees of such separate counsel
and
other expenses related to such participation to be reimbursed by the
Indemnifying Party as incurred.
(d) In
order to provide for just and equitable contribution in the event of joint
liability under the Securities Act in any case in which either (i) the
Purchaser, or any officer, director or controlling person of a Purchaser, makes
a claim for indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on
the
part of the Purchaser or such officer, director or controlling person of
a
Purchaser in circumstances for which indemnification is provided under this
Section 5; then, and in each such case, the Company and such Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to which
they
may be subject (after contribution from others) in such proportion so that
such
Purchaser is responsible only for the portion represented by the percentage
that
the public offering price of its securities offered by the Registration
Statement bears to the public offering price of all securities offered by such
Registration Statement, provided, however, that, in any such case, (A)
Purchasers will not be required to contribute any amount in excess of the public
offering price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
6. Representations
and Warranties.
(a) Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf, has directly or indirectly made any offers or sales of any security
or
solicited any offers to buy any security under circumstances that would cause
the offering of the Securities pursuant to the Securities Purchase Agreement
to
be integrated with prior offerings by the Company for purposes of the Securities
Act which would prevent the Company from selling the Common Stock pursuant
to
Rule 506 under the Securities Act nor will the Company or any of its affiliates
or subsidiaries take any action or steps that would cause the offering of such
Securities to be integrated with other offerings.
(b) The
Warrants and the shares of Common Stock which the Purchaser may acquire pursuant
to the Warrants are all restricted securities under the Securities Act as of
the
date of this Agreement. The Company will not issue any stop transfer order
or
other order impeding the sale and delivery of any of the Registrable Securities
at such time as such Registrable Securities are registered for public sale
or an
exemption from registration is available, except as required by federal or
state
securities laws.
(c) The
Company understands the nature of the Registrable Securities issuable upon
exercise of the Warrants
and recognizes that the issuance of such Registrable
7
Securities
may have a potential dilutive effect. The Company specifically acknowledges
that
its obligation to issue the Registrable Securities is binding upon the Company
and enforceable regardless of the dilution such issuance may have on the
ownership interests of other shareholders of the Company.
(d) The
Company will at all times have authorized and reserved a sufficient number
of
shares of Common Stock for the full exercise of the Warrants.
7. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder, of any of their
respective obligations under this Agreement, each Holder or the Company, as
the
case may be, in addition to being entitled to exercise all rights granted by
law
and under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement.
(b) No
Piggyback on Registrations.
Except as and to the extent specified in Schedule
7(b) hereto
or in the Company’s charter documents, neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant hereto)
may
include securities of the Company in any Registration Statement other than
the
Registrable Securities, and the Company shall not after the date hereof enter
into any agreement providing any such right for inclusion of shares in the
Registration Statement to any of its security holders. Except
as and to the extent specified in Schedule 7(b) hereto, the Company has not
previously entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not been fully
satisfied.
(c) Compliance.
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration
Statement.
(d) Discontinued
Disposition.
Each Holder agrees by its acquisition of such Registrable Securities that,
upon
receipt of a notice from the Company of the occurrence of a Discontinuation
Event (as defined below), such Holder will forthwith discontinue disposition
of
such Registrable Securities under the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement or until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus may be resumed, and,
in
either case, has received copies of any additional or supplemental filings
that
are incorporated or deemed to be incorporated by reference in such Prospectus
or
Registration Statement. The
Company may provide appropriate stop orders to enforce the provisions of this
paragraph. For purposes of this Section 7(d), a “Discontinuation Event” shall
mean (i) when the Commission notifies the Company whether there will be a
“review” of such Registration Statement and whenever the Commission comments in
writing on such Registration Statement (the Company shall provide true and
complete copies thereof and all written responses thereto to each of the
Holders); (ii) any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to
8
such
Registration Statement or Prospectus or for additional information; (iii) the
issuance by the Commission of any stop order suspending the effectiveness of
such Registration Statement covering any or all of the Registrable Securities
or
the initiation of any Proceedings for that purpose; (iv) the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale
in
any jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and/or (v) the occurrence of any event or passage of time that makes
the financial statements included in such Registration Statement ineligible
for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
such
Registration Statement, Prospectus or other documents so that, in the case
of
such Registration Statement or Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(e) Piggy-Back
Registrations.
If at any time during the Effectiveness Period there is not an effective
Registration Statement covering all of 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 each Holder written notice of such determination and, if within
fifteen days after receipt of such notice, any such Holder shall so request
in
writing, the Company shall include in such registration statement all or any
part of such Registrable Securities such Holder requests to be registered to
the
extent the Company may do so without violating registration rights of others
which exist as of the date of this Agreement, subject to customary underwriter
cutbacks applicable to all holders of registration rights and subject to
obtaining any required consent of any selling stockholder(s) to such inclusion
under such registration statement.
(f) Amendments
and Waivers.
The provisions of this Agreement, including the provisions of this sentence,
may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holders of the then outstanding Registrable
Securities. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the
rights of certain Holders and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended, modified,
or
supplemented except in accordance with the provisions of the immediately
proceeding sentence.
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(g) Notices.
Any notice or request hereunder may be given to the Company or the Purchaser
at
the respective addresses set forth below or as may hereafter be specified in
a
notice designated as a change of address under this Section 7(g). Any notice
or
request hereunder shall be given by registered or certified mail, return receipt
requested, hand delivery, overnight mail, Federal Express or other national
overnight next day carrier (collectively, “Courier”) or telecopy (confirmed by
mail). Notices and requests shall be, in the case of those by hand delivery,
deemed to have been given when delivered to any party to whom it is addressed,
in the case of those by mail or overnight mail, deemed to have been given three
(3) business days after the date when deposited in the mail or with the
overnight mail carrier, in the case of a Courier, the next business day
following timely delivery of the package with the Courier, and, in the case
of a
telecopy, when confirmed. The
address for such notices and communications shall be as follows:
|
If
to the Company, to:
|
with
a copy to:
Xxxxxx
X. Xxxxxx, Esq.
Xxxxx,
Nassau, Xxxxxx, Xxxxxxx & Xxxxxx, LLC
CityPlace
I, 22nd
Floor
000
Xxxxxx Xxxxxx
Xxxxxxxx,
XX 00000-0000
|
|
If
to Purchaser
|
Shelter
Island Opportunity Fund, LLC
c/o
RAM Capital Resources, LLC
Xxx
Xxxx 00xx Xxxxxx
Xxxxx
Xxxxx
Xxx
Xxxx, XX 00000
Facsimile: (000)
000-0000
attn:
Xxxxxxx X. Xxxxx
with
a copy to:
Torys
LLP
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxxxx
X. Xxxx, Esq.
Facsimile: (000)
000-0000
E-mail: xxxxx@xxxxx.xxx
|
|
If
to any other Person who is then the registered
Holder:
|
To
the address of such Holder as it appears in the stock transfer books
of
the Company
|
or
such other address as may be designated in writing hereafter in accordance
with
this Section 7(g) by such Person.
10
(h) Successors
and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of each of the parties and shall inure to the benefit
of
Holder. The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under
the Securities Purchase Agreement and Term Note.
(i) Execution
and Counterparts.
This Agreement may be executed in any number of counterparts, each of which
when
so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(j) Governing
Law.
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of
the State of New York, without regard to the principles of conflicts of law
thereof. Each
party agrees that all Proceedings concerning the interpretation, enforcement
and
defense of the transactions contemplated by this Agreement shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the City
of
New York, Borough of Manhattan 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
Proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court or that such Proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for 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. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and
all right to trial by jury in any legal proceeding arising out of or relating
to
this Agreement or the transactions contemplated hereby. If either party shall
commence a Proceeding to enforce any provisions of this Agreement, the
Securities Purchase Agreement, or any Related Agreement, then the prevailing
party in such Proceeding shall be reimbursed by the other party for its
reasonable attorneys fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k) Cumulative
Remedies.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
(l) Severability.
If any term, provision, covenant or restriction of this Agreement is held by
a
court of competent jurisdiction to be invalid, illegal, void or
11
unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may
be
hereafter declared invalid, illegal, void or unenforceable.
(m) Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise
affect the meaning hereof.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
SHELTER
ISLAND OPPORTUNITY
FUND,
LLC,
by Shelter Island GP, LLC
|
||
|
By:
Xxxxx Xxxxxx
|
By:
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxxx
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Chief Financial Officer
|
Title:
President
|
|
EXHIBIT
A
[Month
__, 200__]
[Transfer
Agent]
|
Re:
|
Host
America Corp. Registration Statement on Form
S-1
|
Ladies
and Gentlemen:
As
counsel to Host America Corp., a Colorado corporation (the “Company”), we have
been requested to render our opinion to you in connection with the resale by
the
individuals or entities listed on Schedule A attached hereto (the “Selling
Stockholders”), of an aggregate of [amount] shares (the “Shares”) of the
Company’s Common Stock.
A
Registration Statement on Form S-1 under the Securities Act of 1933, as amended
(the “Act”), with respect to the resale of the Shares was declared effective by
the Securities and Exchange Commission on [date]. Enclosed is the Prospectus
dated [date]. We understand that the Shares are to be offered and sold in the
manner described in the Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholders at any time while
such registration statement remains effective, it is our opinion that the Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholders
may be issued without restrictive legend. We will advise you if such
registration statement is not available or effective at any point in the
future.
Very
truly
yours,
[Company
counsel]
Schedule
A
|
Selling
Stockholder
|
Shares
Being
Offered
|
Schedule
7(b)
