EXHIBIT 10.34
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, between BrandPartners Group, Inc.
(the "Company") and each of the Holders (as such term is defined below) listed
on Schedule A hereto. Terms not otherwise defined herein shall have the meanings
ascribed in the Private Placement Memorandum (as such term is defined below).
WHEREAS, the Company has offered for sale through Broadband Capital
Management LLC (the "Placement Agent"), as exclusive agent for the Company,
units (each, a "Unit," collectively, "Units") consisting of (i) between 58,394
and 94,118 shares of the Company's common stock, par value $.01 per share, at a
minimum price of $1.00 per share and a maximum price of $1.65 per share ("Common
Stock"), (ii) warrants, at a price of $.05 per warrant, to purchase between
58,394 and 94,118 shares of Common Stock, exercisable at a price of $2.00 per
share until November 30, 2006 (the "$2 Warrants"), and (iii) warrants, at a
price of $.025 per warrant, to purchase between 58,394 and 94,118 shares of
Common Stock exercisable at a price of $3.00 per share, until November 30, 2006
(the "$3 Warrants"), at an offering price of $100,000 per Unit (the "Offering"),
as further described in the BrandPartners Group, Inc. Confidential Private
Placement Memorandum dated October 23, 2001 (the "Private Placement
Memorandum");
WHEREAS, each individual or entity listed on Schedule A hereto
(each, a "Holder") has purchased a Unit or Units in connection with the
Offering; and
WHEREAS, the Company has agreed to register the Common Stock, the $2
Warrants and the $3 Warrants (collectively, the "Warrants") and the shares
underlying the Warrants (the "Warrant Shares") offered through the Offering on
the terms and conditions provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Registration Statement.
Within sixty (60) days after the final closing of the Offering, the
Company shall file with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 (a "Registration Statement") or such other
appropriate form in accordance with the Securities Act of 1933, as amended (the
"Securities Act"), covering the Common Stock, the Warrants and the Warrant
Shares (collectively, the "Registrable Securities"). The Company shall use all
reasonable efforts to have such Registration Statement declared effective within
ninety (90) days after such filing, and to maintain the effectiveness and use of
such Registration Statement for a period of no less than 270 days following the
effective date thereof, or such shorter period ending when all Registrable
Securities covered by such Registration Statement have been sold.
2. Obligations of the Company. In connection with the filing of such
Registration Statement, the Company shall:
2.1 Prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement.
2.2 Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
2.3 Use its reasonable best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
"blue sky" laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
2.4 Notify each Holder of Registrable Securities covered by such
Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
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 at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such shares, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing.
2.5 Cause all Registrable Securities covered by such Registration
Statement to be listed on each securities exchange on which similar securities
listed by the Company are then listed.
2.6 Provide a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement and a CUSIP number for all
such Registrable Securities, in each case not later that the effective date of
such registration.
3. Obligations of the Holders.
Each Holder of Registrable Securities shall furnish to the Company
such information regarding such Holder, the number of Registrable Securities
owned and proposed to
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be sold by it, and any other information as shall be required to effect the
registration of such Holder's Registrable Securities, and cooperate with the
Company in preparing the Registration Statement and in complying with the
requirements of the Securities Act.
4. Registration Expenses.
The Company shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of Registrable Securities,
including without limitation all registration, listing, filing and qualification
fees, printers and accounting fees, but excluding (i) underwriting discounts and
commissions relating to the Registrable Securities, if any, and (ii) legal fees
and disbursements of counsel retained by the Holders.
5. Indemnification.
5.1 To the extent permitted by law, the Company will indemnify each
Holder, its directors, officers, shareholders, employees, agents and affiliates,
legal counsel for the Holders, and each person controlling such Holder within
the meaning of the Securities Act, with respect to which registration,
qualification or compliance of Registrable Securities has been effected pursuant
to this Agreement, against any losses, claims, damages, liabilities or actions
in respect thereof (collectively, "Damages"), arising out of or based on any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement filed pursuant hereto, prospectus offering circular or
other document, or 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, or any violation or alleged violation by the Company of the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any state securities laws or any rule or regulation promulgated under
such laws and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance; and the
Company will pay each such Holder any legal and other expenses reasonably
incurred by them in connection with investigating or defending any such claim,
loss, damage, liability or action; provided, however, that the indemnity
contained in this Section 5.1 shall not apply to: (i) amounts paid in settlement
of any such Damages if settlement is effected without the consent of the Company
(which consent shall not unreasonably be withheld); (ii) any such Damages
arising out of or a based upon any untrue statement or omission based upon
written information furnished to the Company by such Holder and stated to be for
use in connection with the offering of securities of the Company; or (iii) any
such Damages arising out of or based upon such Holder's failure to deliver a
copy of the Registration Statement or prospectus or any amendments or
supplements thereto.
5.2 To the extent permitted by law, 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 pursuant to this
Agreement, indemnify the Company, each of its directors, officers, shareholders,
employees, agents and affiliates, each legal counsel and independent accountant
of the Company, each person who controls the Company within the meaning of the
Securities Act, and each other such Holder, each of its directors, officers,
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shareholders, employees, agents and affiliates, legal counsel, and each person
controlling such other Holder within the meaning of the Securities Act, against
all Damages arising out of or based upon arising any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement filed
pursuant hereto, prospectus offering circular or other document, or 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, or any
violation or alleged violation by such Holder of the Securities Act, the
Exchange Act, or any state securities laws or any rule or regulation promulgated
under such laws and relating to action or inaction required of such Holder in
connection with any such registration, qualification or compliance; and such
Holder will pay the Company or such other Holders any legal and other expenses
reasonably incurred by them in connection with investigating 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 or other document in reliance on and in conformity with
written information furnished to the Company by such Holder and stated to be for
use in connection with the offering of securities of the Company; provided,
however, that the indemnity contained in this Section 5.2 shall not apply to
amounts paid in settlement of any such Damages if settlement is effected without
the consent of such Holder (which consent shall not unreasonably be withheld).
5.3 Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 5, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so chooses, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain one separate counsel, with the reasonable fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 5, but the omission to
so deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 5.
5.4 If the indemnification provided for in this Section 5 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such Damages in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party
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on the other in connection with the statements or omissions that resulted in
such Damages as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party 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 indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
5.5 The obligations of the Company and the Holders under this
Section 5 shall survive the completion of any offering of Registrable Securities
pursuant to a Registration Statement under this Agreement.
6. Failure to Timely File Registration Statement.
Anything contained in this Agreement to the contrary
notwithstanding, in the event the Company fails to cause a Registration
Statement to become effective within 180 days after the final closing of the
Offering, which period shall be extended for events beyond reasonable control of
the Company, the exercise price of the Warrants shall be decreased in accordance
with the terms of the Warrant Agreement.
7. Notices.
7.1 Any notice or communication required or permitted hereunder
shall be given in writing and shall be made by hand delivery, by confirmed
facsimile, by overnight courier or by registered or certified mail, addressed
(i) if to a Holder, to such Holder's address as set forth on Schedule A hereto,
and (ii) if to the Company, to BrandPartners Group, Inc., 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, facsimile number (000) 000-0000, Attn: Xxxxxx X. Xxxxxxxxx, with
a copy to Xxxxxx Xxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
facsimile number (000) 000-0000, Attn: Xxxxxxx X. Xxxxxx, Esq.
7.2 All such notices and other communications shall be deemed to
have been delivered and received (i) in the case of personal delivery or
facsimile, on the date of such delivery, (ii) in the case of overnight courier,
on the business day after the date when sent, and (iii) in the case of
registered or certified mail, on the third business day following such mailing.
8. Miscellaneous.
8.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the principles of the
conflict of laws thereof. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
New York located in New York County and any Federal court located within New
York County for any actions, suits or proceedings arising out of or relating to
this Agreement. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement in
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the courts of the State of New York located in New York County or the courts of
the United States of America located in New York County, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such action, suit of proceeding brought in any such court
has been brought in an inconvenient forum.
8.2 Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each Holder of any Registrable Securities
then outstanding, each future Holder of all such Registrable Securities, and the
Company.
8.3 Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement, excepts as
expressly provided herein.
8.4 If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.5 The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
8.6 This Agreement constitutes the entire contract among the Company
and the Holders relative to the subject matter hereof.
8.7 The Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the day and year written below.
COMPANY
BrandPartners Group, Inc.
By:________________________
Authorized Officer
PURCHASER(S)
If the Purchaser is an INDIVIDUAL, or if subscription is purchased as JOINT
TENANTS, as TENANTS IN COMMON, or as COMMUNITY PROPERTY by more than one
individual:
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DATE -----------------------------------------
(Signature of Purchaser)
-----------------------------------------
(Name Typed or Printed)
-----------------------------------------
(Signature of Co-Purchaser, if any)
-----------------------------------------
(Name Typed or Printed)
If Purchaser is an ENTITY:
-----------------------------------------
Name of Entity Typed or Printed)
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(Signature of Purchaser's
Authorized Signatory)
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(Name of Purchaser's Authorized Signatory
Typed or Printed)
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Schedule A
Holder Address Number of
Holder Name and Facsimile Number Registrable Securities
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