EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of March 8, 2004, by and among Equitex, Inc., a Delaware corporation (the
"Company"), and Pandora Select Partners, L.P., a British Virgin Islands limited
partnership, and Whitebox Hedged High Yield Partners, L.P., a British Virgin
Islands limited partnership (individually, an "Investor" and together, the
"Investors").
R E C I T A L S :
WHEREAS, the Company has entered into that certain Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement") with the Investor
pursuant to which the Company has agreed to issue and sell to each Investor a
promissory note (the "Note") convertible into shares of the Company's Common
Stock, $0.02 par value per share (the "Common Stock") and a warrant to purchase
additional shares of Common Stock (the "Warrant");
WHEREAS, the Company may make certain principal and interest payments
on the Note by issuance of additional shares of its Common Stock;
WHEREAS, the Company has agreed to grant certain registration rights
with respect to the shares of the Company's Common Stock issuable as payments
under the Note, upon conversion of the Note or upon exercise of the Warrant;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms when initially capitalized shall
have the following respective meanings:
1.1 "Commission" shall mean the U.S. Securities and Exchange Commission or any
other successor federal agency at the time administering the Securities Act.
1.2 "Common Stock" shall mean the Company's common stock, $0.02 par value per
share.
1.3 "Exchange Act" shall mean the Securities and Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
1.4 "Holders" shall mean and include the Investors and any transferee thereof
who holds Registrable Securities of record.
1.5 "Register," "registered" and "registration" refer to a registration effected
by preparing and filing with the Commission a registration statement in
compliance with the Securities Act, and the declaration or ordering by the
Commission of the effectiveness of such registration statement.
1.6 "Registrable Securities" means any and all shares of Common Stock: (i)
issued or issuable as payments under the Note, upon conversion of the Note or
upon exercise of the Warrant or (ii) issued or issuable with respect to the
Common Stock upon any stock split, stock dividend, recapitalization,
reclassification, merger, consolidation or other similar event; excluding in all
cases, however, Registrable Securities sold by a Holder to the public pursuant
to a registered offering or pursuant to Rule 144 promulgated under the
Securities Act or sold in a private transaction in which the Holder's
registration rights under this Agreement are not assigned.
1.7 "Registration Expenses" shall mean all expenses incurred by the Company in
complying with Articles 2 and 3 hereof, including, without limitation, all
registration, qualification and Commission, National Association of Securities
Dealers, Inc., stock exchange and other filing fees, printing expenses, escrow
fees, fees and disbursements of legal counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
1.8 "Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.9 "Selling Expenses" shall mean all underwriting fees, discounts, selling
commissions and stock transfer taxes applicable to the Registrable Securities
registered by the Holders and the fees and expenses of any special counsel
engaged by the Holders.
1.10 "Underwriter" shall mean (whether or not the term is capitalized) a
broker-dealer engaged by the Company to distribute Registrable Securities as
principal or agent.
1.11 "Underwriting" or "Underwritten" shall mean (whether or not the term is
capitalized) a method of publicly distributing securities through an
Underwriter.
ARTICLE 2
REQUIRED REGISTRATION
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2.1 Required Registration. Not later than June 8, 2004 (unless a majority in
interest of the Holders request a delay of the Company for up to an additional
90 days in writing and in such case, upon expiration of this requested delaying
period), the Company will prepare and file with the Commission a registration
statement under the Securities Act (currently expected to be on Form S-2)
covering all of the Registrable Securities and use its best efforts to obtain
the effectiveness of such registration as soon as practicable as would permit or
facilitate the original issuance or subsequent resale and distribution of all of
such Registrable Securities. The Company's failure to obtain effectiveness of
this registration statement by September 8, 2004 (subject to an extension of
such date to correspond to a filing date extension, if any, granted by the
Holders above, and subject to delays incurred by any Holder's failure to comply
with the provisions of Section 5(b) below) will commence the running of the
first "Failure Term" as defined in Section 5(e) of the Warrant, and failure to
obtain effectiveness of this registration statement by December 8, 2004, will
constitute an event of default under this Agreement.
2.2 Underwriting.
(a) The resale distribution of the Registrable Securities covered by
the registration statement referred to in Section 2.1 above shall be effected by
means of the method of distribution selected by the Holders holding a majority
of the Registrable Securities covered by such registration. The Holders holding
a majority of the Registrable Securities may also change the resale distribution
method from time to time (subject to amendment of the registration statement as
required to describe such changes). If such distribution is effected by means of
an Underwriting, the right of any Holder to registration pursuant to this
Article 2 shall be conditioned upon such Holder's participation in such
Underwriting and the inclusion of such Holder's Registrable Securities in the
Underwriting (unless otherwise agreed by the Investors) to the extent provided
herein.
(b) If such distribution is effected by means of an Underwriting, the
Company (together with all Holders proposing to distribute their securities
through such Underwriting) shall enter into an underwriting agreement in
customary form with a managing underwriter of nationally recognized standing
selected for such Underwriting by a majority in interest of the Holders and
approved by the Company, which approval shall not be unreasonably withheld.
(c) If any Holder disapproves of the terms of the Underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the other Holders. The Registrable Securities and/or
other securities so withdrawn shall also be withdrawn from registration.
2.3 Inclusion of Shares by the Company. If the resale distribution of
Registrable Securities is being effected by means of an underwriting and if the
managing underwriter does not limit the number of Registrable Securities to be
underwritten, the Company may include securities for its own account or for the
account of others in such registration if the managing underwriter so agrees.
The inclusion of such shares shall be on the same terms as the registration of
shares held by the Holders. In the event that the underwriters exclude some of
the securities to be registered, the securities to be sold for the account of
the Company and any other holders shall be excluded in their entirety prior to
the exclusion of any Registrable Securities.
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ARTICLE 3
COMPANY REGISTRATION
3.1 Notice of Registration to Holders. If at any time or from time to time
commencing after the date hereof, the Company shall determine to register any of
its securities, either for its own account or the account of a security holder
or holders, other than (i) a registration relating solely to employee benefit
plans on Form S-8 (or any successor form) or (ii) a registration relating to a
Commission Rule 145 transaction on Form S-4 (or any successor form), the Company
will:
(a) promptly give to each Holder written notice thereof and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within 30 days after receipt of such written notice from the Company described
in Section 3.1(a), by any Holder or Holders, but only to the extent that (i) if
the proposed registration under this Article 3 is not an Underwritten offering,
the original issuance or resale distribution of such Registrable Securities is
not already covered by an effective registration statement under Article 2 above
or (ii) if the proposed registration under this Article 3 is an Underwritten
offering, such Registrable Securities are not then being offered in a separate
Underwritten offering under Article 2 above.
3.2 Underwriting. If the registration of which the Company gives notice is for
an offering involving an Underwriting, the Company shall so advise the Holders
as a part of the written notice given pursuant to Section 3.1(a). In such event,
the right of any Holder to registration pursuant to this Article 3 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 Holders proposing to distribute their securities
through such Underwriting shall (together with the Company) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such Underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be Underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders of Registrable Securities, and the number of shares
of Common Stock to be included in such registration shall be allocated as
follows: first, for the account of the Company, all shares of Common Stock
proposed to be sold by the Company; and second, for the account of the Holders
and any other shareholders of the Company participating in such registration,
the number of shares of Common Stock requested to be included in the
registration by the Holders and such other shareholders in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities that are
proposed to be offered and sold by the Holders and such other shareholders of
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Registrable Securities at the time of filing the registration statement. No
Registrable Securities excluded from the underwriting in this Article 3 by
reason of the underwriters' marketing limitation shall be included in such
registration.
(b) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, but the Holder
shall continue to be bound by the terms hereof.
(c) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Article 3 prior to the effectiveness of
such registration, whether or not a Holder has elected to include Registrable
Securities in such registration.
ARTICLE 4
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Articles 2 and 3 hereof shall be borne
by the Company. All Selling Expenses relating to Registrable Securities
registered by the Holders shall be borne by the Holders of such Registrable
Securities pro rata on the basis of the number of shares so registered.
ARTICLE 5
REGISTRATION PROCEDURES
(a) In the case of each registration effected by the Company pursuant
to this Agreement, the Company will keep each Holder advised in writing as to
the initiation of each registration and as to the completion thereof. The
Company agrees to use its best efforts to effect or cause such registration to
permit the sale of the Registrable Securities covered thereby by the Holders
thereof in accordance with the intended method or methods of distribution
thereof described in such registration statement. In connection with any
registration of any Registrable Securities, the Company shall, as soon as
reasonably possible:
(i) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its
efforts to cause such registration statement filed to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of
such registration statement as may be required by the applicable rules
and regulations of the Commission and the instructions applicable to
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the form of such registration statement (provided, however, that the
Company shall not be obliged to maintain the effectiveness of the
registration statement described in Article 2 longer than through the
earlier of (A) seven years from the date hereof or, if earlier, the
second anniversary of the date on which the last of the Registrable
Securities are issued or issuable as payment under the Note, upon
conversion of the Note or upon exercise of the Warrant, (B) the date on
which the Holder may sell all Registrable Securities then held by the
Holder, or which may become issuable as payment under the Note, upon
conversion of the Note or upon exercise of the Warrant, without
restriction by the volume limitations of Rule 144(e) of the Securities
Act or (C) such time as all Registrable Securities held by such Holder,
or which may become issuable as payment under the Note, upon conversion
of the Note or upon exercise of the Warrant, have been sold pursuant to
a registration statement), and furnish to the holders of the
Registrable Securities covered thereby copies of any such supplement or
amendment prior to this being used and/or filed with the Commission;
(iii) promptly notify the Holders of Registrable Securities to
be included in a registration statement hereunder, the sales or
placement agent, if any, therefor and the managing underwriter of the
securities being sold, and confirm such notice in writing, (A) when
such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of
the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of any
proceedings for that purpose, (C) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose or (D) if, to the
Company's knowledge, it shall be the case, at any time when a
prospectus is required to be delivered under the Securities Act, that
such registration statement or prospectus, or any document incorporated
by reference in any of the foregoing, contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(iv) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in such
registration statement for sale in any jurisdiction at the earliest
practicable date;
(v) furnish to each Holder of Registrable Securities to be
included in such registration statement hereunder, each placement or
sales agent, if any, and each underwriter, if any, thereof a conformed
copy of such registration statement, each such amendment and supplement
thereto (in each case excluding all exhibits and documents incorporated
by reference) and such number of copies of the registration statement
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(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Holder, agent or
underwriter, as the case may be) of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the
Securities Act, as such Holder, agent, if any, and underwriter, if any,
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder sold by such agent or
underwritten by such underwriter and to permit such Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act;
(vi) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement
under such other securities laws or blue sky laws of such states of the
United States or the District of Columbia to be designated by the
Holders of a majority of such Registrable Securities participating in
such registration and each placement or sales agent, if any, therefor
and underwriter, if any, thereof, as any Holder and each underwriter,
if any, of the securities being sold shall reasonably request
(provided, that the Company shall not be required to use its best
efforts to register or qualify the Registrable Securities in more than
10 such jurisdictions unless the expenses thereof are borne by the
Holders requesting such efforts), (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit, as
to a registration statement filed under Article 2 above, the
continuance of offers, sales and dealings therein in such jurisdictions
for the same period after the initial effective date of the
registration statement filed under the Securities Act as described in
Section 5(a)(ii) above or, as to a registration statement filed under
Article 3 above, for a period of 90 days after the effective date of
the registration statement, or if underwritten, as long as may be
necessary to enable the underwriter to complete its distribution of the
Registrable Securities pursuant to such registration statement and (C)
take any and all such actions as may be reasonably necessary or
advisable to enable such Holder, agent, if any, and underwriter to
consummate the disposition in such jurisdictions of such Registrable
Securities; provided, however, that in order to fulfill the foregoing
obligations under this Section 5(a)(vi), the Company shall not (unless
otherwise required to do so in any jurisdiction) be required to (1)
qualify generally to do business as a foreign company or a
broker-dealer, (2) execute a general consent to service of process or
(3) subject itself to taxation; and
(vii) furnish, at the request of a majority of the Holders
participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, 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, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an
Underwritten public offering and reasonably satisfactory to a majority
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in interest of the Holders requesting registration, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated as of such date, from
the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an Underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders
requesting registration, addressed to the underwriters, if any, and if
permitted by applicable accounting standards, to the Holders requesting
registration of Registrable Securities.
(b) The Company may require each Holder of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such Holder and such Holder's method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing. Each such Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished by
such Holder to the Company or of the occurrence of any event in either case as a
result of which any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such Holder or the
distribution of such Registrable Securities or omits to state any material fact
regarding such Holder or the distribution of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such Holder or the distribution of such Registrable
Securities, an untrue statement or a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
(c) Each of the Holders will comply with the provisions of the
Securities Act with respect to disposition of the Registrable Securities to be
included in any registration statement filed by the Company.
ARTICLE 6
INDEMNIFICATION
6.1 The Company will indemnify (i) each Holder, each of its officers, directors
and partners, and such Holder's legal counsel and independent accountants, if
any, and each person controlling any such persons within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and (ii) each
underwriter, if any, and each person who controls any underwriter within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement,
prospectus, offering circular or other document, or any amendment or supplement
thereof, incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
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required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act or any state securities laws applicable to
the Company and relating to action or inaction by the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors and partners and such Holder's legal
counsel and independent accountants, and each person controlling any such
persons, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder,
officers, directors, partners, legal counsel, accountants, underwriter or
controlling persons, and expressly intended for use in such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereof.
6.2 Each Holder will, if Registrable Securities held by such Holder are included
in the securities as to which such registration, qualification or compliance is
being effected, indemnify the (i) Company, each of its directors and officers
and its legal counsel and independent accountants, and each person controlling
any such persons within the meaning of Section 15 of the Securities Act, and
(ii) each underwriter, if any, of the Company's securities covered by such a
registration statement, each person who controls such underwriter within the
meaning of Section 15 of the Securities Act, and each other such Holder, each of
its officers, directors, partners, legal counsel and independent accountants, if
any, and each person controlling such Holder within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, commenced or threatened, arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance or based on any 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, such Holders, such directors, officers, partners, legal counsel,
independent accountants, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular, other document or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Holder and expressly intended for use in such
registration statement, prospectus, offering circular or other document, or any
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amendment or supplement thereof; provided, however, that the obligations of each
Holder hereunder shall be limited to an amount equal to the proceeds to such
Holder of Registrable Securities sold as contemplated herein, and provided
further that any amount payable or paid by a Holder under its indemnification
obligation hereunder shall be first paid to the Company to the extent of its
expenses, claims, losses, damages and liabilities, unless otherwise provided by
a final unappealable order or declaration of a court of competent jurisdiction.
6.3 Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall bear the expense
of such defense of the Indemnified Party if representation of both parties by
the same counsel would be inappropriate due to actual or potential conflicts of
interest. The failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, unless such failure is prejudicial to the ability of the Indemnifying
Party to defend the action. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation.
6.4 If the indemnification provided for in Section 6.1 or 6.2 is unavailable or
insufficient to hold harmless an Indemnified Party, then each Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified Party as a
result of the expenses, claims, losses, damages or liabilities (or actions or
proceedings in respect thereof) referred to in Section 6.1 or 6.2, in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the sellers of Registrable Securities on the other hand in
connection with statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the sellers of Registrable Securities and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Holders agree that it would
not be just and equitable if contributions pursuant to this Section 6.4 were to
be determined by pro rata allocation (even if all Sellers of Registrable
Securities were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this Section 6.4. The amount paid by an
Indemnified Party as a result of the expenses, claims, losses, damages or
liabilities (or actions or proceedings in respect thereof) referred to in the
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first sentence of this Section 6.4 shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any claim, action or proceeding which is the subject
of this Section 6.4. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of sellers of Registrable Securities to
contribute pursuant to this Section 6.4 shall be several in proportion to the
respective amount of Registrable Securities sold by them pursuant to a
registration statement.
ARTICLE 7
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, the Company agrees
to use its best efforts to:
7.1 Make and keep public information available as those terms are understood and
defined in Rule 144 under the Securities Act, at all times after the date
hereof; and
7.2 File with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act.
ARTICLE 8
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
under this Agreement may be assigned by a Holder to Whitebox Advisors, LLC
("Whitebox") or to a transferee or assignee of Registrable Securities that (i)
is a subsidiary, parent or affiliated entity, general partner or limited
partner, member or retired partner or member of a Holder or of Whitebox, (ii) is
an affiliated fund, a follow-on fund or predecessor fund of a Holder or a
related fund or of Whitebox, (iii) is a Holder's family member or trust for the
benefit of an individual Holder or (iv) acquires at least 50,000 shares of
Registrable Securities (as adjusted for stock splits, stock dividends, stock
combinations, reclassifications, recapitalizations, mergers, consolidations or
other similar events); provided, however, (A) the transferor shall, within ten
days before such transfer, furnish to the Company written notice of the name and
address of such transferee or assignee and the securities with respect to which
such registration rights are being assigned and (B) such transferee shall agree
in writing to be subject to all restrictions set forth in this Agreement. In
each case, such rights may only be transferred together with the underlying
Registrable Securities in a transfer permitted by the Securities Act and
applicable state securities laws. Any such transferee or assignee shall be
deemed a Holder hereunder.
ARTICLE 9
LIMITATIONS ON REGISTRATION RIGHTS GRANTED TO OTHER SECURITIES
From and after the date of this Agreement, the Company shall not
without the prior written consent of the holders of a majority of the
Registrable Securities then outstanding, enter into any agreement with any
holder or prospective holder of any securities of the Company providing for the
grant to such holder of registration rights superior to those granted herein.
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ARTICLE 10
MISCELLANEOUS
10.1 Governing Law. The laws of the state of Minnesota shall govern the
interpretation, validity and performance of the terms of this agreement,
regardless of the law that might be applied under principles of conflicts of
law.
10.2 Successors and Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
10.3 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
10.4 Termination. The obligations of the Company to register Registrable
Securities under this Agreement shall terminate on the tenth anniversary of the
date of this Agreement. In addition, the right of any Holder to request
inclusion in any registration under Article 3 shall terminate on the date
hereafter when (i) such Holder (together with its affiliates, partners, members
and former partners and members) holds less than 1% of the Company's outstanding
Common Stock and (ii) all Registrable Securities held by or issuable to such
Holder (and its affiliates, partners, members and former partners and members)
as payment under the Note, upon conversion of the Note or upon exercise of the
Warrant may be sold under Rule 144 during any 90 day period.
10.5 Notices. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
when delivered in person or by national overnight courier service or by
certified or registered mail, return receipt requested, or by telecopier,
addressed as follows:
(a) if to the Company, at
Equitex, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, President
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxxx.xxx
with a copy to:
Felhaber, Larson, Xxxxxx &Vogt, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxxx.xxx
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(b) if to the Investors, in care of:
Whitebox Advisors, LLC
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxx, Chief Financial Officer
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxxxx-xxxxxxxx.xxx
with a copy to:
Xxxxxxxx & Xxxxxx P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxx.xxx
(c) if to any other Holder, to the address reflected on the records of
the Company, or such other address or addresses as shall have been furnished in
writing by such party to the Company and to the other parties to this Agreement.
10.6 Severability. The invalidity, illegality or unenforceability of one or more
of the provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
10.7 Titles and Subtitles. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
[continued on next page]
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10.8 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together constitute one
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized officers or
representatives as of the date first written above.
Equitex, Inc. Pandora Select Partners, L.P.
By /s/ Xxxxx Xxxx By /s/ Xxxxxx Xxxxxxx
------------------------ -----------------------------------------
Xxxxx Xxxx, President
Its Managing Partner
----------------------------------------
Whitebox Hedged High Yield Partners, L.P.
By /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Its Managing Partner
-------------------------------
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