PIGGYBACK REGISTRATION RIGHTS AGREEMENT
AGREEMENT
by
and
between Nucon-RF, Inc., a Nevada corporation, having an office at c/o Xxxx
Xxxxxxxx, 0000 Xxxx Xx., #000, Xxxxx Xxxxxxx, XX 00000 (the “Company”) and the
individuals and/or entities signatory hereto (each a “Holder” and collectively,
the “Holders”).
WHEREAS,
Holder
is the owner of (i) a two (2) year, 8% Convertible Note of the Company (the
“Note”) which is convertible into shares of common stock of the Company in
accordance with the terms of the Note and a Note Purchase Agreement (the
“Purchase Agreement”) of even date herewith (the “Shares”); and (ii) a warrant
to purchase shares of common stock of the Company at $1.50 per share issued
pursuant to the terms of the Purchase Agreement (the “Warrant Shares”);
and
WHEREAS,
the
Company, pursuant to the terms of the Purchase Agreement has granted Holder
piggy-back registration rights for the Shares and Warrant Shares.
NOW,
THEREFORE,
the
parties agree as follows:
| 1. |
Registration:
|
(a) Registration.
If at
any time or from time to time the Company shall determine to register under
the
Securities Act of 1933, as amended (the “Securities Act”) any of its securities,
other than on Form S-4 or Form S-8 or their then equivalents, the Company
will:
| (i) | promptly give to Holder written notice thereof; and |
|
(ii)
|
subject
to Section 1(b) below, include in such registration (and any related
qualification under blue sky laws or other compliance) and in any
underwriting involved therein, all the Shares and Warrant Shares
(collectively, the “Registrable Securities.”). The term Registrable
Securities
shall also mean (i) any common shares or other securities of the
Company
issued or issuable with respect to, or in exchange for or in replacement
of the Shares or Warrant Shares and such additional or lesser amount
of
shares upon any stock split, stock dividend, recapitalization, or
similar
event; provided, however, that common shares of the Company or other
securities shall only be treated as Registrable Securities for the
purposes of this Section 1 to the extent that they have not been,
and may
not be, sold pursuant to Rule 144 under the Securities
Act.
|
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(b) Underwriting.
If the
registration is for a registered public offering involving an underwriting,
the
Company shall so advise Holder as a part of the written notice given pursuant
to
Section 1(a) hereof. In such event, the right of Holder to registration pursuant
to this Agreement shall not be conditioned upon Holder’s participation in such
underwriting and the inclusion of Registrable Securities in the underwriting.
If
Holder proposes to distribute Registrable Securities through such underwriting,
Holder shall (together with the Company) enter into an underwriting agreement
in
customary form with the managing underwriter selected for such underwriting
by
the Company. Notwithstanding any other provision of this Agreement, if the
managing underwriter determines that marketing factors require a limitation
of
the number of shares to be underwritten, the managing underwriter may totally
eliminate or partially limit the Registrable Securities and other securities
to
be distributed through such underwriting, for the account of Holder; provided,
that in such event, the registration statement shall not be deemed a
registration for purposes of Section 1(d) hereof.
(c) Right
to Terminate Registration.
The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Agreement prior to the effectiveness of such registration.
Any
registration terminated or withdrawn prior to the effectiveness of such
registration shall not be deemed a Registration for purposes of Section 1(d)
hereof. The Registration Expenses of such withdrawn registration shall be borne
by the Company in accordance with Section 2 hereof.
(d) Number
of Registrations.
The
Company is obligated to effect only one registration pursuant to this Agreement.
| 2. |
Expenses
of Registration
|
All
Registration Expenses incurred in connection with registration pursuant to
Section 1 shall be borne by the Company. "Registration
Expenses"
shall
mean all expenses, except underwriters or placement agent’s fees or discounts
and except as otherwise stated below, incurred by the Company in complying
with
this Agreement, including, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, fees to issue the Shares, and the expense
of any special audits incident to or required by any such
registration.
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| 3. |
Registration
Procedures
|
In
the
case of a registration effected by the Company pursuant to this Agreement,
the
Company will keep Holder advised in writing as to the initiation of the
registration and as to the completion thereof. At its expense, the Company
will:
(a) Prepare
and file with the Securities and Exchange Commission (the “SEC”) a registration
statement with respect to such securities and use its best efforts to cause
such
registration statement to become and remain effective for at least twelve (12)
months or, if earlier, until the distribution described in the registration
statement has been completed;
(b) Prepare
and file with the SEC during the period specified in Section 3(a) 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; and
(c) Furnish
to Holder and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus and such other documents as Holder and such
underwriters may reasonably request in order to facilitate the public offering
of such securities.
| 4. |
Non-Transferable
Registration
Rights
|
The
rights to cause the Company to register securities granted Holder under this
Agreement may not be assigned.
| 5. |
Indemnification
for
Registration
|
(a) Holder
will indemnify the Company, each of its directors and officers, each
underwriter, if any, of the Company’s securities covered by such a registration
statement, each person who controls the Company or such underwriter within
the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) 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 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 and such directors, officers,
underwriters or control persons for any legal or any other expenses reasonably
incurred 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 upon and in conformity with written information
furnished to the Company by Holder and stated to be specifically for use
therein. Notwithstanding the foregoing, the liability of Holder under this
subsection (a) shall be limited to the lesser of (i) the proportion that the
public offering price of shares sold by Holder under such registration statement
bears to the total public offering price of all securities sold thereunder,
but
not to exceed the net proceeds received by Holder for the sale of Registrable
Securities covered by such registration statement and (ii) the amount of any
damages which Holder would have otherwise been required to pay by reason of
such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the foregoing, any party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act), shall not be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation
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(b) In
connection with each registration statement relating to disposition of
Registrable Securities, the Company shall indemnify and hold harmless each
Holder and each underwriter of Registrable Securities and each person, as that
term is defined in the Act, if any, who controls such Holder or underwriter
(within the meaning of Section 15 of the Act or Section 20 of the Securities
and
Exchange Act of 1934, as amended (the “Exchange Act”) against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of any action, suit or proceeding or any
claim
asserted), to which they, or any of them, may become subject under the Act,
the
Exchange Act or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out
of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto, or arise out of
or
are based upon 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; provided, however, that such indemnity shall not inure to the
benefit of any Holder or underwriter (or any person controlling such Holder
or
underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) on account of any losses, claims, damages or liabilities arising
from the sale of the Registrable Securities if such untrue statement or omission
was made in such registration statement, prospectus or preliminary prospectus,
or such amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by such Holder or underwriter
specifically for use therein. The Company shall also indemnify selling brokers,
dealer managers and similar securities industry professionals participating
in
the distribution, their officers and directors and each person who controls
such
person (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities, if requested. The
indemnity provisions set forth herein shall be in addition to any liability
which the Company may otherwise have.
(c) Any
party
that proposes to assert the right to be indemnified hereunder will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such indemnifying
party of the commencement of such action, suit or proceeding, enclosing a copy
of all papers served. No indemnification provided for in Section 5(a) or 5(b)
shall be available to any party who shall fail to give notice as provided in
this Section 5(c) if the party to whom notice was not given was unaware of
the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for contribution otherwise
than under this Section. In case any such action, suit or proceeding shall
be
brought against any indemnified party and it shall notify the indemnifying
party
of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice
from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof and the approval by the indemnified party of such counsel,
the indemnifying party shall not be liable to such indemnified party for any
legal or other expenses, except as provided below. The indemnified party shall
have the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) it shall have been
reasonably concluded that there may be a conflict of interest between the
indemnifying parties and the indemnified party in the conduct of the defense
of
such action (in which case the indemnifying parties shall not have the right
to
direct the defense of such action on behalf of the indemnified party; it being
understood, however, that the Company shall not be liable for the fees and
expenses of more than one separate counsel representing the indemnified parties)
or (iii) the indemnifying parties shall not have employed counsel to assume
the
defense of such action within a reasonable time after notice of the commencement
thereof, in each of which cases the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying parties. An indemnified party shall
not be liable for any settlement of any action, suit, proceeding or claim
effected without its written consent.
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(d) In
connection with each registration statement relating to the disposition of
Registrable Securities, if the indemnification provided for in subsection (a)
hereof is unavailable to an indemnified party thereunder in respect to any
losses, claims, damages or liabilities referred to therein, then the
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsections (a) or (b) of this Section 5 in such proportion
as is
appropriate to reflect the relative fault of the indemnifying party on the
one
hand and of the indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities,
or
actions in respect thereof, as well as any other relevant equitable
considerations. 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 indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct
or
prevent such untrue statement or omission.
(e) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement (if any) entered into
in
connection with an underwritten public offering of the Registrable Securities
are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall control.
| 6. |
Information
by Holder
|
Holder
shall furnish to the Company such information regarding Holder, the Registrable
Securities held by him and the distribution proposed by Holder in connection
with an underwriting (if any) as the Company may reasonably request in writing
and as shall be required in connection with any registration, qualification
or
compliance in connection with a registration.
| 7. |
Miscellaneous.
|
(a)
If
one or
more of the provisions contained herein shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
5
(b) Waiver
of
any default shall not constitute waiver of any other or subsequent
default.
(c) Except
as
otherwise expressly set forth herein, any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to
have
been duly given if personally delivered or if faxed with confirmation of receipt
by telephone or if mailed be registered or certified mail or by courier, to
the
respective the addresses of the parties as set for the hereinabove. Any party
hereto may by notice so given change its address for future notice hereunder.
Notice shall conclusively be deemed to have been given when personally
delivered, faxed or when deposited in the mail in the manner set forth above
and
shall be deemed to have been received when delivered.
(d) This
Agreement may be executed in one or more counterparts and by facsimile, all
of
which shall be deemed one and the same agreement.
(e) No
amendment to this Agreement will be valid or binding unless set forth in writing
and duly executed by all of the parties hereto. No waiver of any breach of
any
provision of this Agreement will be effective or binding unless made in writing
and signed by the party purporting to give the same and, unless otherwise
provided in the written waiver, will be limited to the specific breach
waived.
(f) The
division of this Agreement into Articles and Sections and the insertion of
headings are for the convenience of reference only and will not affect the
construction or interpretation of this Agreement.
(g) This
agreement shall be construed, enforced, and administered in accordance with
the
laws of the State of New York, under the jurisdiction of the State of New York,
without giving effect to any provision thereof that would compel the application
of the substantive laws of any other jurisdiction and without regard to the
conflicts of law provisions. The parties consent to the jurisdiction of the
federal and state courts located in the State of New York regarding all matters
under this Agreement.
(h) This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and cancels and supersedes any prior understandings
and agreements between the parties. There are no representations, warranties,
forms, conditions, undertakings or collateral agreements, express, implied
or
statutory between the parties other than as expressly set forth in this
Agreement.
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IN
WITTNESS WHEREOF,
this
agreement has been executed as of the ____ day of _______, 2007.
| Nucon-RF, Inc. | ||
| |
|
|
| By: | ||
|
Xxxx Xxxxxxxx |
||
| Chief Financial Officer | ||
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SIGNATURE
PAGE OF HOLDERS
NUCON
RF, INC.
FOR
INDIVIDUALS AND JOINT HOLDERS:
Name
of
Holder: __________________________
(Print)
Name
of
Joint Holder (If Joint) ____________________
(Print)
Signature
of Holder: __________________________
Signature
of Joint Holder (If Joint) __________________________
FOR
CORPOATIONS, PARTNERSHIPS, LIMITED
LIABILITY
COMPANIES, TRUSTS AND OTHER ENTITIES:
Name
of
Entity:___________________________
(Print)
Name
of
Authorized Signatory: _________________________
(Print)
Title
of
Authorized Signatory: __________________________
(Print)
Signature
of Authorized Signatory _________________________
8
