REGISTRATION RIGHTS AGREEMENT
Exhibit
10.3
This
Registration Rights Agreement, dated as of February __, 2017, is by
and among FluoroPharma Medical, Inc., a Nevada corporation (the
“Company”), and those investors set forth on
Schedule A to this
Agreement (the “Investors”). The Company and the
Investors may be collectively referred to as the
“Parties.”
RECITALS
The
Investors have agreed to enter into a Senior Secured Convertible
Promissory Notes (the “Notes”) convertible into shares
of the Company’s common stock.
The
Company has agreed to grant the Investors certain rights with
respect to the registration of the shares of common stock of the
Company issuable upon conversion of the Notes.
AGREEMENT
For
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties agree as
follows:
1. Definitions.
As used
in this Agreement, the following terms will have the following
respective meanings:
“Commission” means
the Securities and Exchange Commission, or any other federal agency
at the time administering the Securities Act.
“Common Stock” will mean
(i) the common stock of the Company, as authorized on the date of
this Agreement.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and any similar
federal statute successor thereto, and the rules and regulations of
the Commission issued under such Act, as they each may, from time
to time, be in effect.
“Note Purchase Agreement” means
the Note Purchase Agreement dated as of the date hereof, as may be
amended from time to time in accordance with its
terms.
“Registration Statement”
means a registration statement filed by the Company with the
Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form
S-4, or their successors, or any other form for a limited purpose,
or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another
corporation).
“Registrable Shares” means
(i) the shares of Common Stock issued or issuable upon conversion
of the shares of Common Stock; and (ii) any other shares of Common
Stock of the Company issued in respect of such shares (because of
stock splits, stock dividends, reclassifications, recapitalization,
or similar events); provided, however, that shares of Common
Stock which are Registrable Shares will cease to be Registrable
Shares upon any sale pursuant to a Registration Statement or Rule
144 under the Securities Act, or any sale in any manner to a person
or entity which, by virtue of Section 11 of this Agreement, is not
entitled to the rights provided by this Agreement. Wherever
reference is made in this Agreement or the Note Purchase Agreements
to a request or consent of holders of a certain percentage of
Registrable Shares, or to a number or percentage of Registrable
Shares held by a Stockholder, such reference will include shares of
Common Stock issuable upon conversion of the Shares even though
such conversion has not yet been effected.
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“Securities Act” means the
Securities Act of 1933, as amended, and any similar Federal statute
successor thereto, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in
effect.
“Shares” will have the
meaning specified in the Note Purchase Agreement.
“Stockholders” means the
Investors and any persons or entities to whom the rights granted
under this Agreement are transferred as permitted by Section 11
below.
2. Sale
or Transfer of Shares; Legend.
(a) The
Registrable Shares and shares issued in respect of the Registrable
Shares will not be sold or transferred unless either (i) they first
shall have been registered under the Securities Act, or (ii) the
Company first shall have been furnished with an opinion of legal
counsel, reasonably satisfactory to the Company, to the effect that
such sale or transfer is exempt from the registration requirements
of the Securities Act.
(b) Each
certificate representing the Registrable Shares, and shares issued
in respect of the Registrable Shares, will bear a legend
substantially in the following form:
The
shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be
offered, sold or otherwise transferred or pledged unless and until
such shares are registered under such Act or an opinion of counsel
reasonably satisfactory to the Company is obtained to the effect
that such registration is not required.
The
foregoing legend will be removed from the certificates representing
any Registrable Shares, at the request of the holder thereof, at
such time as they become eligible for resale pursuant to Rule 144
under the Securities Act.
3. “Piggyback”
Registration.
(a) If
at any time the Company proposes to file a Registration Statement
on Form S-1 or Form S-3, it will, prior to such filing, give
written notice to all Stockholders of its intention to do so and,
upon the written request of a Stockholder or Stockholders given
within 20 days after the Company provides such notice (which
request will state the intended method of disposition of such
Registrable Shares), the Company will use its best efforts to cause
all Registrable Shares, which the Company has been requested by
such Stockholder or Stockholders to register, to be registered
under the Securities Act to the extent necessary to permit their
sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Stockholder or
Stockholders; provided, that the Company will
have the right to postpone or withdraw any registration effected
pursuant to this Section 3 without obligation to any
Stockholder.
(b) In
connection with any offering under this Section 3 involving an
underwriting, the Company will not be required to include any
Registrable Shares in such underwriting unless the requesting
Stockholders accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by
it.
(c) If
in the opinion of the managing underwriter the registration of all,
or part of, the Registrable Shares which the holders have requested
to be included pursuant to this Section 3 would materially and
adversely affect such public offering, then the Company will be
required to include in the underwriting only that number of
Registrable Shares, if any, which the managing underwriter believes
may be sold without causing such adverse effect, but in no event
will the amount of Registrable Shares included in the offering be
reduced unless there is first excluded from such registration
statement all shares of Common Stock to be included therein by (i)
any director, officer or employee of the Company or any subsidiary,
(ii) any holder thereof not having any such contractual, incidental
registration rights or (iii) any holder thereof having contractual,
incidental registration rights subordinate and junior to the rights
of the holders of Registrable Shares. If the number of Registrable
Shares to be included in the underwriting in accordance with the
foregoing is less than the total number of shares which the holders
of Registrable Shares have requested to be included, then the
holders of Registrable Shares who have requested registration will
participate in the underwriting pro rata based upon their total
ownership of the aggregate number of shares requested to be
included in such registration by the Stockholders and by holders
granted registration rights in accordance with Section 9 (or in any
other proportion as agreed upon by all holders entitled to such
rights).
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4. Registration
Procedures.
If and
whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any
of the Registrable Shares under the Securities Act, the Company
will as expeditiously as possible:
(a) prepare
and file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that
Registration Statement to become and remain effective;
(b) prepare
and file with the Commission any amendments and supplements to the
Registration Statement and the prospectus included in the
Registration Statement as may be necessary to keep the Registration
Statement effective for a period of not less than 120 days from the
effective date;
(c) furnish
to each selling Stockholder such reasonable numbers of copies of
the prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other
documents as the selling Stockholder may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Shares owned by the selling Stockholder;
and
(d) use
its best efforts to register or qualify the Registrable Shares
covered by the Registration Statement under the securities or Blue
Sky laws of such states as the selling Stockholders will reasonably
request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to
consummate the public sale or other disposition in such
jurisdictions of the Registrable Shares owned by the selling
Stockholders; provided; however, that the Company will
not be required in connection with this paragraph (d) to qualify as
a foreign corporation, execute a general consent to service of
process or subject itself to taxation in any
jurisdiction.
If the
Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is
amended to comply with the requirements of the Securities Act, the
Company will promptly notify the selling Stockholders and, if
requested, the selling Stockholders will immediately cease making
offers of Registrable Shares and return all prospectuses to the
Company. The Company will promptly provide the selling Stockholders
with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders will be free to resume
making offers of the Registrable Shares.
5. Allocation
of Expenses.
The
Company will pay all Registration Expenses of all registrations
under this Agreement; provided, however, that if a registration
is withdrawn at the request of the Stockholders requesting such
registration (other than as a result of material adverse
information concerning the business or financial condition of the
Company which is made known to the Stockholders after the date on
which such registration was requested) and if the requesting
Stockholders elect not to have such registration counted as a
registration requested under subsection 3, the requesting
Stockholders will pay the Registration Expenses of such
registration pro rata in
accordance with the number of their Registrable Shares included in
such registration. The Company will pay all Registration Expenses
in connection with any registration initiated pursuant to this
Agreement which is withdrawn, delayed or abandoned at the request
of the Company, unless such registration is withdrawn, delayed or
abandoned solely because of any actions of the holders of
Registrable Shares. For purposes of this Section, the term
“Registration Expenses” will mean all expenses incurred
by the Company in complying with Section 5, including, without
limitation, all registration and filing fees, exchange listing
fees, printing expenses, accounting fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements
of one counsel for the selling Stockholders, but excluding
underwriting discounts and selling commissions relating to the
Registrable Shares.
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6. Indemnification.
(a) In
the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless the seller of such Registrable
Shares, each underwriter of such Registrable Shares, and each other
person, if any, who controls such seller or underwriter within the
meaning of the Securities Act or the Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject
under the Securities Act, the Exchange Act, state securities laws
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such
Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and the Company will reimburse such seller, underwriter
and each such controlling person for any legal or any other
expenses reasonably incurred by such seller, underwriter or
controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
untrue statement or omission made in such Registration Statement,
preliminary prospectus or prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such
seller, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In
the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors and officers and
each underwriter (if any) and each person, if any, who controls the
Company or any such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company,
such directors and officers, underwriter or controlling person may
become subject under the Securities Act, Exchange Act, state
securities laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement under
which such Registrable Shares were registered under the Securities
Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any amendment or supplement to the
Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but only insofar as any such statement or omission was
made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of such seller,
specifically for use in connection with the preparation of such
Registration Statement, prospectus, amendment or supplement;
provided,
however, that the
obligations of such seller hereunder will be limited to an amount
equal to the proceeds received by such seller of the Registrable
Shares sold in such registration.
(c) Each
party entitled to indemnification under this Section 7 (the
“Indemnified Party”) will 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
will 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 will conduct the defense of such claim or
litigation, will be approved by the Indemnified Party (whose
approval will not be unreasonably withheld); and, provided, further, that the failure of
any Indemnified Party to give notice as provided herein will not
relieve the Indemnifying Party of its obligations under this
Section 7. The Indemnified Party may participate in such defense at
such party’s expense; provided, however, that the Indemnifying
Party will pay such expense 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 the Indemnified Party and any other party represented by
such counsel in such proceeding; provided, however, that under no
circumstances will the Indemnifying Party be required under this
Section 7 to pay the expenses of more than one counsel for the
Indemnified Parties. No Indemnifying Party, in the defense of any
such claim or litigation will, 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, and no Indemnified Party will consent to entry of any
judgment or settle such claim or litigation without the prior
written consent of the Indemnifying Party.
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(d) If
the indemnification provided for in this Section 7 is unavailable
or insufficient to hold harmless an Indemnified Party under this
Section 7 in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to herein, then each
Indemnifying Party will contribute to the amount paid or payable by
such Indemnifying Party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in the same
proportion as the net proceeds from the offering (before deducting
expenses) received by such Indemnifying Party bear to the total net
proceeds from the offering (before deducting expenses) exceeds the
amount of any damages which such Indemnifying Party has otherwise
been required to pay by reason of its indemnification obligations
under this Section 7. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(a) of the
Securities Act will be entitled to contribution from any person who
is not guilty of such fraudulent misrepresentation. The
contribution obligations of each Indemnifying Party under this
Section 7 are several and not joint.
7. Information
by Holder. Each holder of Registrable Shares included in any
registration will furnish to the Company such information regarding
such holder and the distribution proposed by such holder as the
Company may request in writing and as will be required in
connection with any registration, qualification or compliance
referred to in Section 5.
8. Limitations
on Subsequent Registration Rights. The Company will not,
without the prior written consent of the Stockholders holding
two-thirds of the Registrable Shares, enter into any agreement
(other than this Agreement) with any holder or prospective holder
of any securities of the Company which would allow such holder or
prospective holder to include securities of the Company in any
registration filed under Section 3 or 4, unless, under the terms of
such agreement the rights of such holders to include securities in
a registration filed by the Company are no more favorable to such
holders than the rights granted to the Stockholders under Sections
3 and 4.
9. Rule
144 Requirements. After the earliest of (i) the closing of
the sale of securities of the Company pursuant to a Registration
Statement, (ii) the registration by the Company of a class of
securities under Section 12 of the Exchange Act, or (iii) the
completion by the Company of an offering of its securities (other
than pursuant to an employee benefit plan) in accordance with the
provisions of Regulation A under the Securities Act, the Company
agrees to:
(a) make
and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities
Act;
(b) file
with the Commission in a timely manner all reports and other
documents required of the Company under the Exchange Act (at any
time after it has become subject to such reporting
requirements);
(c) furnish
to any holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the information
requirements of said Rule 144 (at any time after 90 days after the
closing of the first sale of securities by the Company pursuant to
a Registration Statement), and of the reporting requirements of the
Exchange Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and
documents of the Company as such holder may reasonably request to
avail itself of any similar rule or regulation of the Commission
allowing it to sell any such securities without registration;
and
(d) list
the Registrable Shares on any national securities exchange where
any of its Common Stock is so listed and maintain such listing, all
at the Company’s expense.
Notwithstanding the
foregoing to the contrary, the Company may defer or suspend
compliance with this Section for such period as is determined by
unanimous approval of the Directors to be in the best interests of
the Company.
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10. Transfers
of Certain Rights.
(a) 10%
of Registrable Shares. The rights granted to the
Stockholders hereunder may be transferred by such Stockholder to
any transferee who acquires at least 10% of the Registrable Shares;
provided,
however, that the
Company is given written notice by the transferee at the time of
such transfer stating the name and address of the transferee and
identifying the securities with respect to which such rights are
being assigned.
(b) Transferees.
Any transferee to whom rights under this Agreement are transferred
will, as a condition to such transfer, deliver to the Company a
written instrument by which such transferee agrees to be bound by
the obligations imposed upon the Stockholder under this Agreement
to the same extent as if such transferee were a Stockholder
hereunder.
(c) Subsequent
Transferees. A transferee to whom rights under this
Agreement are transferred pursuant to this Section 11 may not again
transfer such rights to any other person or entity, other than to a
Stockholder and other than as provided in Section 11(a) or
(b).
(d) Distributions
to Affiliated Owners. Anything in this Agreement to the
contrary notwithstanding, any Stockholder which is a partnership,
corporation or limited liability company may transfer rights
granted to such Stockholder under this Agreement without limitation
as to amount, to any partner, stockholder or member thereof to whom
Registrable Shares are transferred and who delivers to the Company
a written instrument by which such transferee agrees to be bound by
the obligations imposed upon Stockholders under this Agreement to
the same extent as if such transferee were a Stockholder hereunder.
In the event of such transfer, such partner, stockholder or member
will be deemed a Stockholder for purposes of this Section 11 and
may again transfer such rights to any other person or entity which
acquires Registrable Shares from such partner, stockholder or
member, subject to and in accordance with Sections 11(a) and
(b).
11. Notices.
All notices, requests, consents, and other communications under
this Agreement will be in writing and will be delivered by hand or
mailed by first class certified or registered mail, return receipt
requested, postage prepaid, to the parties at the addresses set
forth under their respective names below, or to such other address
as any party may provide in writing to the others.
12. Entire
Agreement. This Agreement and the Note Purchase Agreement
embody the entire agreement and the understanding between the
parties hereto with respect to the subject matter of this Agreement
and supersede all prior agreements and understandings relating to
such subject matter.
13. Amendments
and Waivers. Except as otherwise expressly set forth in this
Agreement, 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), with the written consent of the Company and the
holders of at least a majority of the Registrable Shares. Any
amendment or waiver effected in accordance with this Section 14
will be binding upon each holder of any Shares or Registrable
Shares, each future holder of all such securities and the Company.
If the Company issues any Registrable Shares after the date of this
Agreement pursuant to the Note Purchase Agreement or otherwise, the
Company, as a condition precedent thereto, will cause the execution
by the acquirer(s) of such shares of a counterpart of this
Agreement and an amendment adding their names as signatories
hereto. The foregoing will not require the Company to procure an
amendment to this Agreement by the other parties hereto. No waivers
of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, will be deemed to be, or
construed as, a further or continuing waiver of any such term,
condition or provision.
14. Damages.
The Company recognizes and agrees that the holder of Registrable
Shares will not have an adequate remedy if the Company fails to
comply with this Agreement and that damages may not be readily
ascertainable, and the Company expressly agrees that, in the event
of such failure, it will not oppose an application by the holder of
Registrable Shares or any other person entitled to the benefits of
this Agreement requiring specific performance of any and all
provisions of this Agreement or enjoining the Company from
continuing to commit any such breach of this
Agreement.
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15. Counterparts.
This Agreement may be executed in several counterparts, each of
which will be deemed an original, but all of which together will
constitute one and the same instrument.
16. Headings.
The headings of the sections, subsections, and paragraphs of this
Agreement have been added for convenience only and will not be
deemed to be a part of this Agreement.
17. Severability.
The invalidity or unenforceability of any provision of this
Agreement will not affect the validity or enforceability of any
other provision.
18. Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
[signature page follows]
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EXECUTION
The
undersigned have executed this Registration Rights Agreement as an
instrument under seal as of the day and year first above
written.
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INVESTOR
(Name
of entity)
By: ___________________________
Title:___________________________
Address:
_______________________
________________________________
(Please
indicate the full legal name of the entity and the capacity or
title of the individual signing on its behalf.)
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Schedule A
Investors
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Purchasers
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Shares Purchased
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Aggregate Purchase
Price
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