REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.9
THIS
REGISTRATION RIGHTS AGREEMENT, dated
as
of September 29, 2004 (the “Agreement”), is entered into by and among
21st
Century
Holding Company, a Florida corporation (the “Company”), X. Xxxxxxxx Securities,
LLC (the “Placement Agent”), and the Holders (the “Investors”) of the Company’s
6% Senior Subordinated Notes due September ____, 2007 (the “Notes”), and
Warrants (the “Warrants”) as set forth on Exhibit
A
hereto.
WHEREAS,
the
Company desires to grant to the Investors (and with respect only to the Warrants
and Warrant Shares, the Placement Agent) the registration rights set forth
herein with respect to the shares of Common Stock issuable upon payment of
principal (the “Principal Shares”) and interest (the “Interest Shares”) due on
the Notes, and the prepayment of the Notes (the “Prepayment Shares”), shares of
Common Stock issuable upon exercise of the Warrants (the "Warrant Shares”), and
the Warrants (the Principal Shares, the Interest Shares, the Prepayment Shares,
the Warrant Shares and the Warrants collectively and interchangeably, the
“Securities”).
NOW,
THEREFORE, the
parties hereto mutually agree as follows:
1.
CERTAIN
DEFINITIONS
“Registrable
Securities” means any of the Principal Shares, Interest Shares, Prepayment
Shares, Warrant Shares or Warrants, until (i) the Registration Statement (as
defined below) has been declared effective by the Securities and Exchange
Commission (the “Commission”), and all Securities have been disposed of pursuant
to the Registration Statement, or (ii) such time as, in the reasonable opinion
of counsel to the Company, all Securities may be sold pursuant to Rule 144
(or
any similar provision then in effect). In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be deemed to be
made
in the definition of “Registrable Securities” as is appropriate in order to
prevent any dilution or enlargement of the rights granted pursuant to this
Agreement.
“Holder”
means any Person owning or having the right to acquire Registrable Securities
or
any assignee thereof in accordance with Section 11 hereof.
“Trading
Day” means any business day on which the market on which the Common Stock trades
is open for business.
“Unit
Purchase Agreement” means that certain unit purchase agreement dated as of
September 29, 2004 by and among the Company and the Investors, pursuant to
which
the Company has issued the Notes and the Warrants.
2.
RESTRICTIONS
ON TRANSFER
Each
of
the Investors acknowledges and understands that prior to the registration of
the
Securities as provided herein, the Securities are “restricted securities” as
defined in Rule 144. Each of the Investors understands that no disposition
or
transfer of the Securities may be made by any Investor in the absence of (i)
an
opinion of counsel to such Investor, in form and substance reasonably
satisfactory to the Company, that such transfer may be made without registration
under the Securities Act of 1933, as amended (the "Securities Act"), or (ii)
such registration.
3.
COMPLIANCE
WITH REPORTING REQUIREMENTS
With
a
view to making available to the Holders the benefits of Rule 144 or any other
similar rule or regulation of the Commission that may at any time permit the
Holder of the Securities to sell securities of the Company to the public
pursuant to Rule 144, the Company agrees to:
(a)
comply with the provisions of paragraph (c)(1) of Rule 144;
(b)
file
with the Commission in a timely manner all reports and other documents required
to be filed with the Commission pursuant to Section 13 or 15(d) under the
Securities Exchange Act of 1934 (the “Exchange Act”) by companies subject to
either of such sections, irrespective of whether the Company is then subject
to
such reporting requirements; and
(c)
Upon
request by any Holder or the Company’s transfer agent, the Company shall provide
an opinion of counsel, which opinion shall be reasonably acceptable to the
Holder and/or the Company’s transfer agent, that the such Holder has complied
with the applicable conditions of Rule 144 (or any similar provision then in
force).
4.
REGISTRATION
RIGHTS WITH RESPECT TO THE REGISTRABLE SECURITIES
(a)
The
parties agree that on or before the dates specified in Section 7.1(a) and 9.1(c)
of the Unit Purchase Agreement, the Company will file a Registration Statement
on Form S-3 to cover the resale of the Principal Shares and Interest Shares
to
be issued by the Company in payment of the January 31, 2005 quarterly payment
due on the Notes, and that thereafter, the Company shall file in subsequent
quarters such additional registration statements as provided in Sections 7.1
and
9.1 of the Unit Purchase Agreement. The Company shall file a Registration
Statement on Form S-3 on or before October 31, 2004 covering the resale of
the
Warrants and Warrant Shares. The Company will file a Registration Statement
on
Form S-3 covering the resale of the Prepayment Shares, if necessary, within
10
business days after issuance of Prepayment Shares. The Registration Statements
referred to in this Section 4(a) are sometimes individually referred to as
a
“Registration Statement” or collectively as “Registration
Statements.”
The
Company shall use diligent best efforts to cause each Registration Statement
to
become effective within 120 days from the date of filing thereof. Each such
Registration Statement shall include all of the Registrable Securities then
issued and not covered by a previously filed Registration Statement, to the
extent permitted by the rules and interpretations of the Commission as then
in
effect, and shall include appropriate language regarding reliance upon Rule
416
to the extent permitted by the Commission. The Company will notify the Holders
and its transfer agent of the effectiveness of a Registration Statement within
five Trading Days of such event.
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(b)
The
Company will maintain the Registration Statement or post-effective amendment
filed under this Section 4 effective under the Securities Act until the earlier
of (i) the date that all of the Registrable Securities have been sold pursuant
to such Registration Statement, or (ii) the date the Holders receive an opinion
of counsel to the Company, which counsel shall be reasonably acceptable to
the
Holders, that the Registrable Securities may be sold under the provisions of
Rule 144.
(c)
All
fees, disbursements and out-of-pocket expenses and costs incurred by the Company
in connection with the preparation and filing of the Registration Statement
under this Section 4 and in complying with applicable securities and blue sky
laws (including, without limitation, all attorneys’ fees of the Company) shall
be borne by the Company. The Holders shall bear the cost of underwriting and/or
brokerage discounts, fees and commissions, if any, applicable to the Registrable
Securities being registered. The Company shall qualify any of the Registrable
Securities for sale in such states as the Holders reasonably designate and
shall
furnish indemnification in the manner provided in Section 8 hereof. However,
the
company shall not be required to qualify in any state which will require an
escrow or other restriction relating to the Company and/or the Holders, or
which
will require the Company to qualify to do business in such state or require
the
Company to file therein any general consent to service of process. The Company
at its expense will supply each of the Holders with copies of the applicable
Registration Statement and the prospectus included therein and other related
documents in such quantities as may be reasonably requested by any of the
Holders.
(d)
The
Company shall not be required by this Section 4 to include the Registrable
Securities in any Registration Statement which is to be filed if, in the opinion
of counsel for the Company the proposed offering or other transfer as to which
such registration is requested is exempt from applicable federal and state
securities laws and would result in all purchasers or transferees obtaining
securities which are not “restricted securities,” as defined in Rule
144.
(e)
In
the event that (i) the Registration Statement is not filed by the Company in
a
timely manner as set forth in this Section 4; or (ii) such Registration
Statement is not declared effective by the Commission as set forth in this
Section 4; or (iii) such Registration Statement is not maintained as effective
by the Company for the period set forth in Section 4(b) above (each a
“Registration Default”), then the exercise price of the Warrants shall be
reduced by ten percent (10%) every 30 days thereafter, as liquidated damages
and
not as a penalty, provided, however, that the such reduction in the Warrant
exercise price shall not relieve the Company from its obligations to register
the Registrable Securities pursuant to this Section.
(f)
If,
at any time any Registrable Securities are not at the time covered by any
effective Registration Statement, the Company shall determine to register under
the Securities Act (including pursuant to a demand of any stockholder of the
Company exercising registration rights) any of its shares of the Common Stock
(other than in connection with a merger or other business combination
transaction or pursuant to Form S-8) it shall send to each Holder written notice
of such determination and, if within 20 days after receipt of such notice,
such
Holder shall so request in writing, the Company shall use its best efforts
to
include in such registration statement all or any part of the Registrable
Securities that such Holders request to be registered. Notwithstanding the
foregoing, if in connection with any offering involving an underwriting of
the
Common Stock to by issued by the Company, the managing underwriter shall impose
a limitation on the number of shares of the Common Stock included in any such
registration statement because, in such underwriter’s judgment, such limitation
is necessary based on market conditions the Company may exclude, to the extent
so advised by the underwriters, the Registrable Securities from the
underwriting; provided, however, that if the underwriters do not entirely
exclude the Registrable Securities from such registration statement, the Company
shall be obligated to include in such registration statement, with respect
to
the requesting Holders, only an amount of Registrable Securities equal to the
product of (i) the number of Registrable Securities that remain available for
registration after the underwriter’s cutback and (ii) such Holder’s percentage
of ownership of all the Registrable Securities then outstanding (on an
as-converted basis). If any Holder disapproves of the terms of any underwriting
referred to in this paragraph, it may elect to withdraw therefrom by written
notice to the Company and the underwriter. No incidental right under this
paragraph shall be construed to limit any registration required under the other
provisions of this Agreement.
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5.
COOPERATION
WITH COMPANY
Each
Holder will cooperate with the Company in all respects in connection with this
Agreement, including timely supplying all information reasonably requested
by
the Company (which shall include all information regarding such Holder and
proposed manner of sale of the Registrable Securities required to be disclosed
in any Registration Statement) and executing and returning all documents
reasonably requested in connection with the registration and sale of the
Registrable Securities and entering into and performing its obligations under
any underwriting agreement, if the offering is an underwritten offering, in
usual and customary form, with the managing underwriter or underwriters of
such
underwritten offering. Nothing in this Agreement shall obligate the Holder
to
consent to be named as an underwriter in any Registration Statement. The
obligation of the Company to register the Registrable Securities shall be
absolute and unconditional as to those Registrable Securities which the
Commission will permit to be registered without naming the Holder as
underwriter. Any delay or delays caused by a Holder by failure to cooperate
as
required hereunder shall not constitute a Registration Default as to such
Holder.
6.
REGISTRATION
PROCEDURES
If
and
whenever the Company is required by any of the provisions of this Agreement
to
effect the registration of any of the Registrable Securities under the
Securities Act, the Company shall (except as otherwise provided in this
Agreement), as expeditiously as possible, subject to the Holder’s assistance and
cooperation as reasonably required with respect to each Registration
Statement:
(a)
(i)
prepare and file with the Commission such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep such Registration Statement effective and to comply with
the
provisions of the Securities Act with respect to the sale or other disposition
of all Registrable Securities covered by such Registration Stateme nt whenever
any of the Holder shall desire to sell or otherwise dispose of the same
(including prospectus supplements with respect to the sales of Registrable
Securities from time to time in connection with a registration statement
pursuant to Rule 415 promulgated under the Securities Act) and (ii) take all
lawful action such that each of (A) the Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a
material fact or omit to state a material fa ct required to be stated therein
or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and (B) the prospectus forming part of
the
Registration Statement, and any amendment or supplement thereto, does not at
any
time during the Registration Period 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, in light of the circumstances under which they
were made, not misleading;
4
(b)
(i)
prior to the filing with the Commission of any Registration Statement (including
any amendments thereto) and the distribution or delivery of any prospectus
(including any supplements thereto), provide draft copies thereof to the Holder
as required by Section 4(c) and reflect in such documents all such comments
as
the Holder (and its counsel) reasonably may propose; (ii) furnish to the Holder
such numbers of copies of a prospectus including a preliminary prospectus or
any
amendment or supplement to any prospectus, as applicable, in conformity with
the
requirements of the Securities Act, and such other documents, as the Holder
may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such Holder; and (iii) provide to the
Holder copies of any comments and communications from the Commission relating
to
the Registration Statement, if lawful to do so;
(c)
register and qualify the Registrable Securities covered by the Registration
Statement under such other securities or blue sky laws of such jurisdictions
as
any of the Holders shall reasonably request (subject to the limitations set
forth in Section 4(c) above), and do any and all other acts and things which
may
be necessary or advisable to enable such Holders to consummate the public sale
or other disposition in such jurisdiction of the Registrable Securities owned
by
such Holders;
(d)
list
such Registrable Securities on the markets where the Common Stock of the Company
is listed as of the effective date of the Registration Statement, if the listing
of such Registrable Securities is then permitted under the rules of such
markets;
(e)
notify the Holders at any time when a prospectus relating thereto covered by
the
Registration Statement is required to be delivered under the Securities Act,
of
the happening of any event of which it has knowledge as a result of which the
prospectus included in the 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 the Company
shall prepare and file a curative amendment under Section 6(a) as quickly as
reasonably possible and during such period, the Holders shall not make any
sales
of Registrable Securities pursuant to the Registration Statement;
(f)
after
becoming aware of such event, notify the Holders who holds Registrable
Securities being sold (or, in the event of an underwritten offering, the
managing underwriters) of the issuance by the Commission of any stop order
or
other suspension of the effectiveness of the Registration Statement at the
earliest possible time and take all lawful action to effect the withdrawal,
rescission or removal of such stop order or other suspension;
5
(g)
cooperate with the Holders to facilitate the timely preparation and delivery
of
certificates for the Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts, as the case may be, as the
Holders reasonably may request and registered in such names as the Holders
may
request; and, within five Trading Days after a Registration Statement which
includes Registrable Securities is declared effective by the Commission, deliver
and cause legal counsel selected by the Company to deliver to the transfer
agent
for the Registrable Securities (with copies to the Holders) an appropriate
instruction and, to the extent necessary, an opinion of such
counsel;
(h)
take
all such other lawful actions reasonably necessary to expedite and facilitate
the disposition by the Holders of Registrable Securities in accordance with
the
intended methods therefor provided in the prospectus which are customary for
issuers to perform under the circumstances;
(i)
in
the event of an underwritten offering, promptly include or incorporate in a
prospectus supplement or post-effective amendment to the Registration Statement
such information as the managers reasonably agree should be included therein
and
to which the Company does not reasonably object and make all required filings
of
such prospectus supplement or post-effective amendment as soon as practicable
after it is notified of the matters to be included or incorporated in such
prospectus supplement or post-effective amendment; and
(j)
maintain a transfer age nt and registrar for the Common Stock.
7.
LISTING
OF WARRANTS
The
Company shall use its diligent best efforts to qualify the Warrants for listing
on the Nasdaq National Market (“Nasdaq”) within 120 days from the date
hereof.
8.
INDEMNIFICATION
(a)
To
the maximum extent permitted by law, the Company agrees to indemnify and hold
harmless the Holder, each person, if any, who controls a Holder within the
meaning of the Securities Act, and each director, officer, shareholder,
employee, agent, representative, accountant or attorney of the foregoing (each
of such indemnified parties, a “Distributing Investor”) against any losses,
claims, damages or liabilities, joint or several (which shall, for all purposes
of this Agreement, include, but not be limited to, all reasonable costs of
defense and investigation and all reasonable attorneys’ fees and expenses), to
which the Distributing Investor may become subject, under the Securities Act
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,
or any related final prospectus or amendment or supplement thereto, or arise
out
of or are based upon the 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 the Company will not be liable
in any such case to the extent, and only to the extent, that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus or amendment
or
supplement thereto in reliance upon, and in conformity with, written information
furnished to the Company by the Distributing Investor, its counsel, or
affiliates, specifically for use in the preparation thereof or (ii) by such
Distributing Investor’s failure to deliver to the purchaser a copy of the most
recent prospectus (including any amendments or supplements thereto). This
indemnity agreement will be in addition to any liability which the Company
may
otherwise have.
6
(b)
To
the maximum extent permitted by law, each Distributing Investor agrees that
it
will indemnify and hold harmless the Company, and each officer and director
of
the Company or person, if any, who controls the Company within the meaning
of
the Securities Act, against any losses, claims, damages or liabilities (which
shall, for all purposes of this Agreement, include, but not be limited to,
all
reasonable costs of defense and investigation and all reasonable attorneys’ fees
and expenses) to which the Company or any such officer, director or controlling
person may become subject under the Securities Act 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, or any related final
prospectus or amendment or supplement thereto, or arise out of or are based
upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such Registration
Statement, final prospectus or amendment or supplement thereto in reliance
upon,
and in conformity with, written information furnished to the Company by such
Distributing Investor, its counsel or affiliates, specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Distributing Investor may otherwise have under this
Agreement. Notwithstanding anything to the contrary herein, the Distributing
Investor shall be liable under this Section 8(b) for only that amount as does
not exceed the net proceeds to such Distributing Investor as a result of the
sale of Registrable Securities pursuant to the Registration
Statement.
(c)
Promptly after receipt by an indemnified party under this Section 8 of notice
of
the commencement of any action against such indemnified party, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will
not relieve the indemnifying party from any liability which it may have to
any
indemnified party except to the extent the failure of the indemnified party
to
provide such written notification actually prejudices the ability of the
indemnifying party to defend such action. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
in,
and, to the extent that it may wish, jointly with any other indemnifying party
similarly notified, assume the defense thereof, subject to the provisions herein
stated and after notice from the indemnifying party to such indemnified party
of
its election so to assume the defense thereof, the indemnifying party will
not
be liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the
defense thereof other than reasonable costs of investigation, unless the
indemnifying party shall not pursue the action to its final conclusion. The
indemnified parties shall have the right to employ one or more separate counsel
in any such action and to participate in the defense thereof, but the fees
and
expenses of such counsel shall not be at the expense of the indemnifying party
if the indemnifying party has assumed the defense of the action with counsel
reasonably satisfactory to the indemnified party unless (i) the employment
of
such counsel has been specifically authorized in writing by the indemnifying
party, or (ii) the named parties to any such action (including any interpleaded
parties) include both the indemnified party and the indemnifying party and
the
indemnified party shall have been advised by its counsel that there may be
one
or more legal defenses available to the indemnifying party different from or
in
conflict with any legal defenses which may be available to the indemnified
party
or any other indemnified party (in which case the indemnifying party shall
not
have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable only for the reasonable fees
and
expenses of one separate firm of attorneys for the indemnified party, which
firm
shall be designated in writing by the indemnified party). No settlement of
any
action against an indemnified party shall be made without the prior written
consent of the indemnified party, which consent shall not be unreasonably
withheld so long as such settlement includes a full release of claims against
the indemnified party.
7
All
fees
and expenses of the indemnified party (including reasonable costs of defense
and
investigation in a manner not inconsistent with this Section and all reasonable
attorneys’ fees and expenses) shall be paid to the indemnified party, as
incurred, within 10 Trading Days of written notice thereof to the indemnifying
party; provided, that the indemnifying party may require such indemnified party
to undertake to reimburse all such fees and expenses to the extent it is finally
judicially determined that such indemnified party is not entitled to
indemnification hereunder.
9.
CONTRIBUTION
In
order
to provide for just and equitable contribution under the Securities Act in
any
case in which (i) the indemnified party makes a claim for indemnification
pursuant to Section 8 hereof but is judicially determined (by the entry of
a
final judgme nt or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 8 hereof provide for indemnification
in
such case, or (ii) contribution under the Securities Act may be required on
the
part of any indemnified party, then the Company and the applicable Distributing
Investor shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of
this
Agreement, include, but not be limited to, all reasonable costs of defense
and
investigation and all reasonable attorneys’ fees and expenses), in either such
case (after contribution from others) on the basis of relative fault as well
as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company on the one hand
or the applicable Distributing Investor on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission. The Company and the Distributing Investor
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 9. The amount paid or payable by an indemnified party as
a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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.
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Notwithstanding
any other provision of this Section 9, in no event shall (i) any of the
Distributing Investors be required to undertake liability to any person under
this Section 9 for any amounts in excess of the dollar amount of the proceeds
received by such Distributing Investor from the sale of such Distributing
Investor’s Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to any Registration Statement under
which such Registrable Securities are registered under the Securities Act and
(ii) any underwriter be required to undertake liability to any person hereunder
for any amounts in excess of the aggregate discount, commission or other
compensation payable to such underwriter with respect to the Registrable
Securities underwritten by it and distributed pursuant to such Registration
Statement.
10.
NOTICES
Any
notice required or permitted hereunder shall be given in writing (unless
otherwise specified herein) and shall be effective upon personal delivery,
via
facsimile (upon receipt of confirmation of error- free transmission and mailing
a copy of such confirmation, postage prepaid by certified mail, return receipt
requested) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the other parties thereunto entitled at the following addresses,
or
at such other addresses as a party may designate by five days advance written
notice to each of the other parties hereto.
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Company:
|
21st
Century
Holding Company
0000
Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx
Xxxxx, XX 00000
Attention:
General Counsel
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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|
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with
a copy to:
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Broad
and Xxxxxx
000
Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
Attention:
A. Xxxxxx Xxxxxxxx, P.A.
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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9
|
Placement
Agent:
|
X.
Xxxxxxxx Securities, LLC
0000
Xxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxxxx,
XX 00000
Attention:
President
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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Investor:
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At
the address and facsimile set forth on the signature page
hereof
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11.
ASSIGNMENT
The
registration rights granted to any Holder under this Agreement ma y be
transferred or assigned provided the transferee is bound by the terms of this
Agreement and the Company is given written notice of such transfer or
assignment.
12.
ADDITIONAL
COVENANTS OF THE COMPANY
For
so
long as it shall be required to maintain the effectiveness of the Registration
Statement, it shall file all reports and information required to be filed by
it
with the Commission in a timely manner and take all such other action so as
to
maintain such eligibility for the use of the applicable form.
13.
CONFLICTING
AGREEMENTS
The
Company shall not enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holder in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
14.
GOVERNING
LAW; JURISDICTION
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Florida, without regard to its principles of conflict of laws.
Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Agreement may be brought against any party in the federal
courts of Florida or the state courts of the State of Florida, and each of
the
parties consents to the jurisdiction of such courts and hereby waives, to the
maximum extent permitted by law, any objection, including any objections based
on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions.
15.
MISCELLANEOUS
(a)
Entire
Agreement. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof. This Agreement, together
with
the Notes, the Warrants, the Subsidiary Guarantee and the Unit Purchase
Agreement (collectively, the “Transaction Documents”) including any certificate,
schedule, exhibit or other document delivered pursuant to their terms,
constitutes the entire agreement among the parties hereto with respect to the
subject matters hereof and thereof, and supersedes all prior agreements and
understandings, whether written or oral, among the parties with respect to
such
subject matters.
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(b)
Amendments.
This
Agreement may not be amended except by an instrument in writing signed by the
party to be charged with enforcement.
(c)
Waiver.
No
waiver
of any provision of this Agreement shall be deemed a waiver of any other
provisions or shall a waiver of the performance of a provision in one or more
instances be deemed a waiver of future performance thereof.
(d)
Construction.
This
Agreement and each of the Transaction Documents have been entered into freely
by
each of the parties, following consultation with their respective counsel,
and
shall be interpreted fairly in accordance with its respective terms, without
any
construction in favor of or against either party.
(e)
Binding
Effect of Agreement. This
Agreement shall inure to the benefit of, and be binding upon the successors
and
assigns of each of the parties hereto, including any transferees of the
Securities.
(f)
Severability.
If
any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement or the validity or
unenforceability of this Agreement in any other jurisdiction.
(g)
Attorneys’
Fees. If
any
action should arise between the parties hereto to enforce or interpret the
provisions of this Agreement, the prevailing party in such action shall be
reimbursed for all reasonable expenses incurred in connection with such action,
including reasonable attorneys’ fees.
(h)
Headings.
The
headings of this Agreement are for convenience of reference only and shall
not
form part of, or affect the interpretation of this Agreement.
(i)
Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall be
deemed an original and all of which, when taken together, will be deemed to
constitute one and the same agreement.
[SIGNATURES
ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement
to be duly executed, as of the date first written above.
21st
CENTURY
HOLDING COMPANY
By:
______________________
Name:
____________________
Title:
_____________________
X.
XXXXXXXX SECURITIES, LLC
By:
______________________
Name:
____________________
Title:
_____________________
12
INVESTOR:
_________________________
Name:
_________________________
Address
13
EXHIBIT
A
|
Name
of Investor
|
Number
of Warrants
|
14
