REGISTRATION RIGHTS
Exhibit
4.4
REGISTRATION
RIGHTS
The
Holder shall be entitled to any and all of the rights of the Purchasers pursuant
to a Registration Rights Agreement dated as of December 17, 2007 (the “RRA”)
among United Benefits & Pension Services, Inc. (the “Company”) and several
purchasers signatory thereto. For all purposes the “Registrable Securities” (as
defined below) shall be deemed Registrable Securities pursuant to that RRA
and
the Holder of this Warrant, any other Placement Agent Warrant (collectively,
the
“Warrants”) and/or any Warrant Shares shall be deemed a “Holder” pursuant to the
terms of the RRA.
As
provided in the Placement Agent Agreement, as amended by the Supplement to
Placement Agent Agreement dated December 17, 2007, in addition to Holders’
registration rights under the RRA, the Holder shall have the following
additional and supplementary registration rights:
1.1.
Request
for Registration - Demand Right.
(a) At
any
time commencing 95 days after the effective date of the registration statement
to be filed by the Company under the RRA with respect to the Holder's
Registrable Securities and all other "Registrable Securities" contemplated
in
the RRA, if the Company shall receive a written request from either Maxim Group
LLC or Holder(s) of Placement Agent Warrants (including this Warrant) or Warrant
Shares then outstanding (collectively the “Holders”) representing at least 40%
of the aggregate Warrant Shares issued or issuable upon exercise of the
Placement Agent Warrants that the Company effect the registration under the
Securities Act of 1933 (the “1933 Act”) of (i) any or all of the shares of UBPS
Common Stock issued or issuable pursuant to the terms of this Warrant or any
other Placement Agent Warrant issued in connection with the transactions
contemplated by the Memorandum (the “Warrant Shares”), (ii) any securities
issued or issuable in connection with any anti-dilution provisions of this
Warrant or any other Placement Agent Warrant or (iii) any securities issued
or
issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing (the “Registrable Securities”)
then the Company shall, within five (5) business days of the receipt thereof,
give written notice of such request to all Holders of Warrants or Warrant
Shares; and shall, subject to the limitations of this Section 1.1, use its
best efforts to effect such a registration as soon as practicable and in any
event to file within 45 days of the receipt of such request a registration
statement under the 1933 Act covering all the Registrable Securities which
the
Holders shall in writing request to be included in such registration and to
use
its best efforts to have such registration statement become effective.
(b) If
the
Holders intend to distribute the Registrable Securities covered by their request
by means of an underwriting, the right of any Holder to include its Registrable
Securities in such registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
parties proposing to distribute their securities through such underwriting
shall
(together with the Company as provided in Section 1.2(d)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company and reasonably acceptable to
a
majority in interest of the Holders. Notwithstanding any other provision of
this
Section 1.1, if, in the case of a registration requested pursuant to
Section 1.1(a), the underwriter advises the Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Holders shall so advise the Company, and all the
securities other than Registrable Securities sought to be included in the
underwriting shall first be excluded to the extent necessary. To the extent
that
further limitation is required, the number of Registrable Securities that may
be
included in the underwriting shall be allocated pro rata among all Holders
thereof desiring to participate in such underwriting (according to the number
of
Registrable Securities then held by each such Holder). No Registrable Securities
requested by any Holder to be included in a registration pursuant to
Section 1.1(a) shall be excluded from the underwriting unless all
securities other than Registrable Securities are first excluded.
(c) The
Company is obligated to effect only one registration pursuant to
Section 1.1(a); provided,
however,
that no
registration pursuant to Section 1.1(a) shall be deemed to be a
registration for any purpose of this sentence if (i) the number of
Registrable Securities included in the underwriting does not equal or exceed
50%
of the number of Registrable Securities proposed by the Holders to be
distributed through such underwriting or (ii) the Holders pay all expenses
of such registration, including those otherwise payable by the Company in
accordance with Section 1.5; and provided,
further,
that no
registration of Registrable Securities which shall not have become and remained
effective in accordance with Section 1.3 shall be deemed to be a
registration for any purpose of this sentence unless such registration was
withdrawn at the request of the Holders.
(d) Notwithstanding
the foregoing provisions of this Section 1.1, in the event that the Company
is requested to file any registration statement pursuant to this
Section 1.1, (i) the Company shall not be obligated to effect the
filing of such registration statement for a period of up to 60 days after the
date of a request for registration pursuant to this Section 1.1 if at the time
of such request (1) the Company is engaged, or has fixed plans to engage, within
60 days of the time of such request, in a firm commitment underwritten public
offering of Common Stock in which the holders of Registrable Securities may
participate pursuant to Section 1.2, or (2) the Company is currently engaged
in
a self-tender or exchange offer and the filing of a registration statement
would
cause a violation of the Securities Exchange Act of 1934, as amended (the “1934
Act”); or (ii) if the Company shall furnish to the Holders requesting such
registration statement a certificate signed by the Chief Executive Officer
of
the Company stating that, in the good faith judgment of the Board of Directors,
it would not be in the best interests of the Company and its stockholders
generally for such registration statement to be filed, the Company shall have
the right to defer such filing for a period of not more than 60 days after
receipt of the request of the relevant Holders; provided,
however,
that
the Company may not utilize the right set forth in this Section 1.1(d)(ii)
more than once in any twelve-month period.
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1.2.
Company
Registration-Piggyback Right.
If (but
without any obligation to do so) the Company proposes to register (including
for
this purpose a registration effected by the Company for stockholders other
than
the Holders) any of its capital stock or other equity securities (or securities
convertible into equity securities) under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a registration
on
Form S-8 relating solely to the sale of securities to participants in a Company
stock plan or a registration on Form S-4), the Company shall, at such time,
promptly give each Holder written notice of such registration. Upon the written
request of any Holder, given within 20 days after mailing of such notice by
the
Company, the Company shall, subject to the provisions of Section 1.7 and
the following sentence of this Section 1.2, use its best efforts to cause a
registration statement covering all of the Registrable Securities that each
such
Holder has requested to be registered to become effective under the 1933 Act.
The Company shall be under no obligation to complete any offering of its
securities it proposes to make and shall incur no liability to any Holder for
its failure to do so.
1.3. Obligations
of the Company.
Whenever required under this Section 1 to use its best efforts to effect
the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible, prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use
its
best efforts to cause such registration statement to become effective, and,
upon
the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
180
days or until such earlier time at which such Holders have informed the Company
in writing that the distribution of their securities has been completed (such
180-day or shorter period, the “Effectiveness
Period”).
In
addition, the Company shall:
(a) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement, and use its best efforts to cause each such amendment and supplement
to become effective, as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement during the Effectiveness Period.
(b) Furnish
to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the 1933 Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(c) Use
its
best efforts to register or qualify the securities covered by such registration
statement under such other securities or Blue Sky laws of such states and
jurisdictions as shall be reasonably requested by the Holders, except that
the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business, subject itself to taxation or file a general consent
to service of process in any such state or jurisdiction.
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(d) In
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
underwriting agreement, including furnishing an opinion of counsel or entering
into a lock-up agreement reasonably requested by the managing
underwriter.
(e) Notify
each Holder covered by such registration statement, at any time when a
prospectus relating thereto covered by such registration statement is required
to be delivered under the 1933 Act, of the happening of any event known to
the
Company as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing and promptly file such amendments and supplements which may be
required pursuant to Section 1.3(a) on account of such event and use its
best efforts to cause each such amendment and supplement to become
effective.
(f) Furnish,
at the request of any Holder requesting registration of Registrable Securities
pursuant to this Section 1, on the date that such Registrable Securities
are delivered to the underwriters for sale in connection with a registration
pursuant to this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters,
on
the date that the registration statement with respect to such securities becomes
effective: (i) an opinion or opinions, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given by company counsel to the underwriters in
an
underwritten public offering, addressed to the underwriters, if any, and to
the
Holders requesting registration of Registrable Securities, and (ii) a letter
dated such date, from the independent certified public accountant of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities.
(g) Apply
for
listing and use its best efforts to list the Registrable Securities being
registered on any national securities exchange on which a class of the Company's
equity securities is listed or, if the Company does not have a class of equity
securities listed on a national securities exchange, apply for qualification
and
use its best efforts to qualify the Registrable Securities being registered
for
inclusion on the automated quotation system of the National Association of
Securities Dealers, Inc.
(h) Without
in any way limiting the types of registrations to which this Section 1
shall apply, in the event that the Company shall effect a “shelf registration”
on Form S-1 or Form S-3 under Rule 415 promulgated under the 1933 Act, the
Company shall take all necessary action, including, without limitation, the
filing of post-effective amendments, to permit the Investors to include their
Registrable Securities in such registration in accordance with the terms of
this
Section 1.
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1.4. Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Section 1 in respect of the Registrable Securities
of any selling Holder, that such selling Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of such securities, as shall be required
to
effect the registration of its Registrable Securities.
1.5. Expenses
of Demand Registration.
All
expenses other than underwriting discounts and commissions relating to
Registrable Securities incurred in connection with each registration, filing
or
qualification pursuant to Section 1.1(a), including (without limitation)
all registration, filing and qualification fees, printing and accounting fees,
fees and disbursements of counsel for the Company, of the reasonable fees and
disbursements of one counsel for the selling Holders, shall be borne by the
Company; provided,
however,
that
the Company shall not be required to pay for any expenses of any registration
begun pursuant to Section 1.1(a) if the registration request is
subsequently withdrawn at any time at the request of the Holders of a majority
of the Registrable Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.1(a); and provided,
further,
that if
at the time of any withdrawal described in the foregoing clause the Holders
have
learned of a material adverse change in the condition, business, or prospects
of
the Company (other than a change in market demand for its securities or in
the
market price thereof) from that known to the Holders of the Registrable
Securities then outstanding at the time of their request (or of which the
Company advised them in writing within 20 days thereafter) that makes the
proposed offering unreasonable in the good faith reasonable judgment of the
Holders of the Registrable Securities, then the Holders shall not be required
to
pay any of such expenses and the right to one demand registrations pursuant
to
Section 1.1(a) shall not be forfeited. All underwriting discounts and
commissions relating to Registrable Securities included in any registration
effected pursuant to Section 1.1(a) will be borne and paid ratably by the
Holders of such Registrable Securities.
1.6. Expenses
of Company Registration.
The
Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect
to
any registration pursuant to Section 1.1 or Section 1.2 for each Holder,
including, without limitation, all registration, filing and qualification fees,
printing and accounting fees, fees and disbursements of counsel for the Company
and the reasonable fees and disbursements of one counsel for the selling
Holders. Underwriting discounts and commissions relating to Registrable
Securities included in any registration effected pursuant to Section 1.1 or
Section 1.2 will be borne and paid ratably by the Holders of such Registrable
Securities.
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1.7. Underwriting
Requirements.
In
connection with any offering involving an underwriting of securities being
issued by the Company, the Company shall not be required under Section 1.2
to include any of the Holders' securities in such underwriting unless such
Holders accept the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, and then only in such quantity, if any,
as
in the opinion of the underwriters, marketing factors allow. If
the
managing underwriter for the offering shall advise the Company in writing that
the total amount of securities, including Registrable Securities, requested
by
shareholders to be included in such offering exceeds the amount of securities
to
be sold other than by the Company that marketing factors allow, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the managing underwriter
believes marketing factors allow (the securities so included to be reduced
as
follows: (a) all securities which stockholders other than the Company and the
Holders seek to include in the offering shall be excluded from the offering
to
the extent limitation on the number of shares included in the underwriting
is
required, and (b) if further limitation on the number of shares to be included
in the underwriting is required, then the number of shares held by the Holders
that may be included in the underwriting shall be reduced so that the number
of
shares included in the underwriting are pro rata in accordance with the number
of shares of Registrable Securities held by each such Holder) but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below 30% of the total amount of securities included in such
offering, unless such offering is the initial public offering of the Company's
securities in which case the selling Holders may be excluded if the managing
underwriter makes the determination described above and no securities other
than
those of the Company are included. For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a Holder of
Registrable Securities and which is a partnership, a limited liability company
or a corporation, the partners, retired partners, members, retired members
and
shareholders of such Holder, or the estates and family members of such partners,
retired partners, members, retired members and shareholders and any trusts
for
the benefit of any of the foregoing persons shall collectively be deemed to
be a
"selling Holder," and any pro rata reduction with respect to such "selling
Holder" shall be based upon the aggregate amount of shares carrying registration
rights owned by all entities and individuals included in such "selling Holder,"
as defined in this sentence.
1.8. Indemnification.
In the
event any Registrable Securities are included in a registration statement under
this Section 1, the Company will provide the Holders with all of the
indemnification and contribution rights set forth in Section 5 of the RRA.
The
obligations of the Company under this Section 1.8 shall survive the
completion of any offering of Registrable Securities in a registration statement
whether under the RRA or this Section 1 or otherwise.
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