REGISTRATION RIGHTS AGREEMENT
EXHIBIT 4.2
This Registration Rights Agreement (this “Agreement”) is made and entered into as of June 12,
2006, between NEW ERA STUDIOS, INC., a Nevada corporation (the “Company”) and XXXX XXXXXXX (the
“Purchaser”).
This Agreement is made pursuant to the Stock Purchase Warrant, dated as of the date hereof
between the Company and the Purchaser (the “Warrant Agreement”).
The Company and the Purchaser hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
“Advice” has meaning set forth in Section 3(o) hereof.
“Affiliate” means, with respect to any Person, any other Person that directly or
indirectly controls or is controlled by or under common control with such Person. For the purposes
of this definition, “control,” when used with respect to any Person, means the possession, direct
or indirect, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or otherwise; and the terms
“affiliated,” controlling” and “controlled” have meanings correlative to the foregoing.
“Business Day” means any day except Saturday, Sunday and any day which shall be a
legal holiday or a day on which banking institutions in the State of Nevada generally are
authorized or required by law or other government actions to close.
“Closing Date” shall mean the execution date of the Warrant.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Company’s Common Stock, par value $.001 per share.
“Effectiveness Date” means the tenth day after the Company has received notice
(written or oral) from the Commission that the Commission Staff will not be reviewing the
Registration Statement or has no further comments on the Registration Statement.
“Effectiveness Period” has the meaning set forth in Section 2(a) hereof. “Exchange
Act” means the Securities Exchange Act of 1934, as amended. “Event” has the meaning set forth in
Section 2(d) hereof.
“Holder” means the holder from time to time of Registrable Securities.
“Indemnified Party” has the meaning set forth in Section 5(c) hereof. “Indemnifying
Party” has the meaning set forth in Section 5(c) hereof.
“Initial Registration Statement” has the meaning set forth in Section 2(a) hereof.
“Losses” has the meaning set forth in Section 5(a) hereof.
“OTCBB” means the OTC Bulletin Board of the National Association of Securities
Dealers, Inc.
“Person” means an individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind.
“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 in such Prospectus.
“Registrable Securities” means the shares of Common Stock issued or issuable upon (i)
exercise of the Warrant and (ii) any shares of the Company’s capital stock issued with respect to
(i) as a result of any stock split, stock dividend, recapitalization, exchange or similar event or
otherwise.
“Registration Delay Payment” has the meaning set forth in Section 2(d) hereof.
“Registration Statement” means the Initial Registration Statement and any additional
registration statements contemplated by Sections 2(a), 2(b) and 7(d), including (in each case) 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 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 158” means Rule 158 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.
“Trading Day” means a day on which the OTCBB (or in the event the Common Stock is not
traded on OTCBB, such other securities market on which the Common Stock is listed) is open for
trading.
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“Underlying Shares” means the shares of Common Stock issuable upon exercise of the
Warrant.
“Underwritten Offering” means a registration in connection with which securities of
the Company are sold to an underwriter for reoffering to the public pursuant to an effective
registration statement, whether on a firm commitment or best efforts basis.
“Warrant” means the warrant issuable pursuant to the Warrant Agreement.
2. Registration Requirements
The Company shall prepare and file with the Commission a Registration Statement (the
“Initial Registration Statement”) which shall cover all Registrable Securities at such time
as the Company or any then parent of the Company may determine to file a registration statement
with the Commission for the Company’s Common Stock or the common stock of any then parent of the
Company. The Initial Registration Statement shall be on a form of registration statement then
applicable to the resale of the Registrable Securities. The Company shall use its best efforts to
cause the Initial Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, and to keep such Initial Registration Statement
continuously effective under the Securities Act until such earlier date when all Registrable
Securities covered by such Initial Registration Statement have been sold or may be sold without
volume restrictions pursuant to Rule 144 as determined by counsel to the Company (the
“Effectiveness Period”). The number of shares of Common Stock initially included in the
Initial Registration Statement shall be the Underlying Shares.
3. Registration Procedures
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission a Registration Statement on a form of registration
statement then applicable to the resale of the Registrable Securities; and cause the Registration
Statement once it is effective to remain effective as provided herein; provided, however, that not
less than three (3) Business Days prior to the filing of the Registration Statement or any related
Prospectus or any amendment or supplement thereto (including any document that would be
incorporated therein by reference), the Company shall, if reasonably practicable furnish to the
Holder copies of all such documents proposed to be filed (including documents incorporated by
reference), which documents will be subject to the review of such Holder. The sections of such
Registration Statement covering information with respect to the Holder, the Holder’s beneficial
ownership of securities of the Company or the Holder’s intended method of disposition of
Registrable Securities shall conform to the information provided to the Company by the Holder.
(b) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the Registration Statement
continuously effective for the Effectiveness Period; (ii) cause the related Prospectus to be
amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to
be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond as promptly as practicable to any
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comments received from the Commission with respect to the Registration Statement or any
amendment thereto; and (iv) comply in all material respects with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by
the Registration Statement during the applicable period in accordance with the intended methods of
disposition by the Holder thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify the Holder of Registrable Securities to be sold (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be
filed; (B) 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 and (C) with respect to the Registration Statement or any post-effective amendment, when
the same has become effective; (ii) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to the Registration Statement or Prospectus or
for additional information; (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement covering any or all of the Registrable Securities
or the initiation of any Proceedings for that purpose; (iv) if at any time any of the
representations and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated hereby ceases to be true and correct in all material respects;
(v) of 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 (vi) of the
occurrence of any event that makes any statement made in the 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 the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the 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.
(d) Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i)
any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(e) If requested by any managing underwriter in connection with an Underwritten Offering, (i)
incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement
such information as the Company reasonably agrees should be included therein and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be
required to take any action pursuant to this Section 3(e) that would, in the opinion of counsel for
the Company, violate applicable law.
(f) Deliver to the Holder without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto as
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such Person may reasonably request; and the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by the selling Holder in connection with the
offering and sale of the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(g) Prior to any public offering of Registrable Securities, use its best efforts to register
or qualify or cooperate with the selling Holder in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as the Holder requests in writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by a Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any material tax in any such jurisdiction
where it is not then so subject.
(h) Cooperate with the Holder and any managing underwriter to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to be sold pursuant to
a Registration Statement, which certificates shall be free, to the extent permitted by applicable
law, of all restrictive legends, and to enable such Registrable Securities to be in such
denominations and registered in such names as any such managing underwriters or the Holder may
request at least two (2) Business Days prior to any sale of Registrable Securities.
(i) Upon the occurrence of any event contemplated by Section 3(c)(vi), as promptly as
possible, prepare a supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus will contain 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, in light of the circumstances under which they were made,
not misleading.
(j) Cause all Registrable Securities relating to such Registration Statement to be listed on
the OTCBB and any other securities exchange, quotation system, market or over-the-counter bulletin
board, if any, on which similar securities issued by the Company are then listed.
(k) Enter into such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other actions in connection
therewith (including those reasonably requested by any managing underwriters and the Holder) in
order to expedite or facilitate the disposition of such Registrable Securities, and whether or not
an underwriting agreement is entered into, (i) make such representations and warranties to such
Holder and such underwriters as are customarily made by issuers to underwriters in underwritten
public offerings, and confirm the same if and when requested; (ii) in the case of an Underwritten
Offering obtain and deliver copies thereof to the managing underwriters, if any, of opinions of
counsel to the Company and updates thereof addressed to
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each such underwriter, in form, scope and substance reasonably satisfactory to any such
managing underwriters covering the matters customarily covered in opinions requested in
Underwritten Offerings and such other matters as may be reasonably requested by such underwriters;
(iii) if an underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling Holder and the underwriters, if any,
than those set forth in Section 5 (or such other provisions and procedures acceptable to the
managing underwriters, if any); and (iv) deliver such documents and certificates as may be
reasonably requested by the Holder to evidence the continued validity of the representations and
warranties made pursuant to clause 3(k)(i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered into by the Company.
(l) Comply in all material respects with applicable rules and regulations of the Commission
and make generally available to its securityholders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts Underwritten Offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of the Registration Statement, which statement shall conform to
the requirements of Rule 158.
(m) The Company may require the selling Holder to furnish to the Company information regarding
such Holder and the distribution of such Registrable Securities as is required by law to be
disclosed in the Registration Statement, and the Company may exclude from such registration the
Registrable Securities of the Holder who unreasonably fails to furnish such information within a
reasonable time after receiving such request.
The Holder covenants and agrees that (i) it will not sell any Registrable Securities under the
Registration Statement until it has received copies of the Prospectus as then amended or
supplemented as contemplated in Section 3(f) and notice from the Company that such Registration
Statement and any post-effective amendments thereto have become effective as contemplated by
Section 3(c).
The Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of any event of the kind described in Section 3(c)(ii),
3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi), the Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such Holder’s receipt of the copies
of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(i),
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.
(n) The Company agrees to respond to any comments on a Registration Statement received from
the Commission staff as promptly as possible.
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(o) Within two (2) Business Days after a Registration Statement which covers applicable
Registrable Securities is ordered effective by the Commission, the Company shall deliver, and shall
cause legal counsel for the Company to deliver, to the transfer agent for such Registrable
Securities (with copies to the Holder) confirmation that such Registration Statement has been
declared effective by the Commission in the form attached hereto as Exhibit A.
4. Registration Expenses
All fees and expenses incident to the performance of or compliance with this Agreement by the
Company shall be borne by the Company, whether or not pursuant to an Underwritten Offering and
whether or not the Registration Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect to filings required
to be made with the OTCBB and each other securities exchange or market on which Registrable
Securities are required hereunder to be listed and (B) in compliance with state securities or Blue
Sky laws, (ii) printing expenses, (iii) fees and disbursements of counsel for the Company, and (iv)
fees and expenses of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement.
5. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless the Holder from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating
to (i) any untrue or alleged untrue statement of a material fact contained in the Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in
any preliminary Prospectus, or arising out of or relating to any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements therein (in the
case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made), except to the
extent, but only to the extent, that such untrue statements or omissions are based solely upon and
in conformity with information regarding such Holder furnished in writing to the Company by such
Holder expressly for use therein, which information was reasonably relied on by the Company for use
therein or to the extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and expressly approved in writing
by such Holder expressly for use in the Registration Statement, such Prospectus or such form of
prospectus or in any amendment or supplement thereto or (ii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of Registrable Securities. The Company shall
not, however, be liable for any Losses to the Holder with respect to any untrue or alleged untrue
statement of material fact or omission or alleged omission of material fact if such statement or
omission was made in a preliminary Prospectus and the untrue or alleged untrue statement of
material fact or omission or
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alleged omission of material fact contained in such preliminary Prospectus was corrected in
the final Prospectus (or any amendment or supplement thereto).
(b) Indemnification by Holder. The Holder shall indemnify and hold harmless the
Company, the directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and
the directors, officers, agents or employees of such controlling Persons from and against all
Losses, as incurred, arising solely out of or based solely upon any untrue statement of a material
fact contained in the Registration Statement, any Prospectus, or any form of prospectus, or arising
solely out of or based solely upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading to the extent, but only to the extent, that
such untrue statement or omission is contained in any information so furnished in writing by such
Holder to the Company specifically for inclusion in the Registration Statement or such Prospectus
and that such information was reasonably relied upon by the Company for use in the Registration
Statement, such Prospectus or such form of prospectus or to the extent that such information
relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities
and was reviewed and expressly approved in writing by such Holder expressly for use in the
Registration Statement, such Prospectus or such form of prospectus.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party promptly shall notify the Person from whom indemnity is sought (the
“Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of all fees and expenses incurred in connection with defense thereof; provided,
however, that the failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except to the
extent that such failure shall have materially adversely prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such Indemnified Party and the Indemnifying Party,
and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense thereof and such counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be unreasonably withheld.
No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an
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unconditional release of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party because of a failure or refusal of a court of competent
jurisdiction to enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a result of such
Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions, statements or omissions that resulted
in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include, subject to the limitations set forth in Section 5(c), any reasonable attorneys’
or other reasonable fees or expenses incurred by such party in connection with any Proceeding to
the extent such party would have been indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in accordance with its terms.
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 indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.
6. Rule 144
As long as any Holder owns Registrable Securities, the Company agrees to use its best efforts
to file (or obtain extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or
15(d) of the Exchange Act.
7. Miscellaneous
(a) Remedies. In the event of a breach by the Company or by the Holder of any of
their obligations under this Agreement, the 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.
The Company and the Holder agree that monetary damages would not provide adequate compensation for
any losses incurred by reason of a breach by it of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for
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specific performance in respect of such breach, it shall waive the defense that a remedy at
law would be adequate.
(b) Piggy-Back Registrations. If, at any time when there is not an effective
Registration Statement covering the Registrable Securities, 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, the Company shall send to the Holder written notice of such determination and, if within ten
(10) days after receipt of such notice, such Holder shall so request in writing, (which request
shall specify the Registrable Securities intended to be disposed of by the Purchaser), the Company
will use reasonable efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Holder, to the extent
requisite to permit the disposition of the Registrable Securities so to be registered, provided
that if at any time after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to delay registration
of such securities, the Company may, at its election, give written notice of such determination to
such Holder and, thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such registration, and
(ii) in the case of a determination to delay registering, shall be permitted to delay registering
any Registrable Securities being registered pursuant to this Section 7(b) for the same period as
the delay in registering such other securities. The Company shall include in such registration
statement all or any part of such Registrable Securities such Holder requests to be registered;
provided, however, that the Company shall not be required to register any Registrable Securities
pursuant to this Section 7(b) that are eligible for sale pursuant to Rule 144(k) of the Securities
Act. In the case of an underwritten public offering, if the managing underwriter(s) or
underwriter(s) should reasonably object to the inclusion of the Registrable Securities in such
registration statement, then if the Company after consultation with the Underwriter’s
representative should reasonably determine that the inclusion of such Registrable Securities would
materially adversely affect the offering contemplated in such registration statement, and based on
such determination recommends inclusion in such registration statement of fewer Registrable
Securities than proposed to be sold by the Holder, then (x) the number of Registrable Securities of
the Holder included in such registration statement shall be reduced or (y) none of the Registrable
Securities of the Holder shall be included in such registration statement if the Company, after
consultation with the underwriter(s), recommends the inclusion of none of such Registrable
Securities; provided, however, that if securities are being offered for the account of other
persons or entities as well as the Company, such reduction shall not represent a greater fraction
of the number of Registrable Securities intended to be offered by the Holder than the fraction of
similar reductions imposed on such other persons or entities (other than the Company).
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or
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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 Holder.
(d) Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be deemed to have been received (a) upon hand delivery
(receipt acknowledged) or delivery by telex (with correct answer back received), telecopy or
facsimile (with transmission confirmation report) at the address or number designated below (if
received by 8:00 p.m. PST where such notice is to be received), or the first Business Day following
such delivery (if received after 8:00 p.m. PST where such notice is to be received) or (b) on the
next succeeding Business Day following the date of mailing by express courier service, fully
prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications are (i) if to the Company to New Era Studios, Inc.,
00000 Xxxxx Xxxxxx, Xxxxx Xx Xxxxxxx, Xxxxxxxxxx 00000 attn: Xxxxx X. Xxxxxxx, and (ii) if to the
Purchaser to Xxxx Xxxxxxx, c/x Xxxxxxx Beach Xxx & Xxxxxxx LLP, 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 or such other address as may be designated in writing hereafter,
in the same manner, by such Person.
(e) Permitted Transfer of Warrant. Notwithstanding any other term in this Agreement,
if the transaction reflected in Section 16 of the Warrant occurs, the terms of this Agreement shall
apply to the common stock of the acquiring entity reflected in Section 16 of the Warrant.
(f) 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 the Holder. Neither the Company nor the Holder may assign its rights or obligations
hereunder without the prior written consent of the other.
(g) 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 and 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.
(h) Governing Law. The laws of the State of Nevada shall govern all issues concerning
the relative rights of the Company and the Purchaser as its stockholder, and the construction,
validity, enforcement and interpretation of this Agreement, without regard to principles of
conflicts of law. Each party hereby irrevocably submits to the exclusive jurisdiction of the state
and federal courts sitting in the City of Reno, 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 suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consent to process being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
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Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law.
(i) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(j) 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 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.
(k) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NEW ERA STUDIOS, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Title: Chief Executive Officer | ||||||
| /s/ Xxxx Xxxxxxx | ||||||
| Xxxx Xxxxxxx | ||||||
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[TRANSFER AGENT]
Attn.:
Re: New Era Studios, Inc.
Ladies and Gentlemen:
We are counsel to New Era Studios, Inc., a Nevada corporation (the “Company”), and have
represented the Company in connection with that certain Stock Purchase Warrant (the “Warrant”)
entered into by and between the Company and the registered owner named therein (collectively, the
“Holder”) pursuant to which the Company issued a right to acquire shares of Common Stock. Pursuant
to the Warrant, the Company also has entered into a Registration Rights Agreement with the Holder
(the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Registration Rights Agreement), including
the shares of Common Stock issuable upon the exercise of the Warrant, under the Securities Act of
1933, as amended (the “1933 Act”). In connection with the Company’s obligations under the
Registration Rights Agreement, on ___,200-, the Company filed a Registration Statement on
Form ___ (File No. 333-___) (the “Registration Statement”) with the Securities and Exchange
Commission (the “SEC”) relating to the Registrable Securities which names the Holder as a selling
stockholder thereunder.
In connection with the foregoing, we advise you that a member of the SEC’s staff has advised
us by telephone that the SEC has entered an order declaring the Registration Statement effective
under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no
knowledge, after telephonic inquiry of a member of the SEC’s staff, that any stop order suspending
its effectiveness has been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act
pursuant to the Registration Statement.
Very truly yours,
[ISSUER’S COUNSEL]
[ISSUER’S COUNSEL]
cc: Xxxx Xxxxxxx
