Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
August 19, 2004, by and among Secured Diversfied Investment, Ltd. , a Nevada
corporation, with its principal office located at 0000 Xxxxxx Xxxxx , Xxxxxxx
Xxxxx, XX 00000 (the "Target Company"), and Seaside Investments Plc., a company
incorporated in England and Wales, with its principal place of business at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX ("Seaside").
Simultaneously with the execution and delivery of this Agreement,
Seaside and the Target Company have entered into a Stock Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), which Purchase Agreement
is incorporated herein by reference, and pursuant to which the Purchaser has
agreed to purchase the Target Company's common stock, par value $0.001 (the
"Common Stock"; and such shares of Common Stock purchased, the "Consideration
Stock"), all as more particularly provided therein. All capitalized terms used
herein without definition shall have the meaning ascribed thereto in the
Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Target Company and Seaside
hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an individual,
a governmental or political subdivision thereof or a governmental
agency.
(b) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and
pursuant to Rule 415 under the 1933 Act or any successor rule providing
for offering securities on a continuous or delayed basis ("Rule 415"),
and the declaration or ordering of effectiveness of such Registration
Statement(s) by the United States Securities and Exchange SEC (the
"SEC").
(c) "Registrable Securities" means the shares of Consideration Stock.
(d) "Registration Statement" means a registration statement under the
1933 Act which covers the Registrable Securities.
2. REGISTRATION.
(a) Subject to the terms and conditions of this Agreement, the Target
Company shall prepare, file and cause to be declared effective, no
later than twelve (12) months from the date of the Closing, with the
SEC a registration statement on Form S-1 or SB-2 (or, if the Target
Company is then eligible, on Form S-3) under the 1933 Act (the "Initial
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Registration Statement") for the registration for the resale by
Seaside, who purchased shares of Common Stock pursuant to the Purchase
Agreement the shares of Consideration Stock. The Target Company shall
cause the Registration Statement to remain effective until all of the
Registrable Securities have been sold or until, in the opinion of
counsel to the Target Company, Seaside shall be entitled to sell all of
the Registerable Securities pursuant to Rule 144 in one transaction.
Prior to the filing of the Registration Statement with the SEC, the
Target Company shall furnish a copy of the Initial Registration
Statement to Seaside and Gottbetter & Partners LLP for their review and
comment. Seaside and Gottbetter & Partners LLP shall furnish comments
on the Initial Registration Statement to the Target Company within
three (3) Business Days of the receipt thereof from the Target Company.
(b) Effectiveness of the Initial Registration Statement. The Target
Company shall use its best efforts (i) to have the Initial Registration
Statement declared effective by the SEC no later than one year
anniversary from date hereof (the "Scheduled Effective Deadline") and
(ii) to insure that the Initial Registration Statement and any
subsequent Registration Statement remains in effect until the earlier
of (A) all of the Registrable Securities have been sold, subject to the
terms and conditions of this Agreement or (B) in the written opinion of
counsel for the Target Company all of the Registrable Securities are
eligible for sale without an effective Registration Statement under the
1933 Act.
(c) Failure to Obtain Effectiveness of the Registration Statement. In
the event the Registration Statement is not declared effective by the
SEC on or before the Scheduled Effective Deadline, sales cannot be made
pursuant to the Registration Statement whether because of a failure to
keep the Registration Statement effective, failure to disclose such
information as is necessary for sales to be made pursuant to the
Registration Statement, failure to register sufficient shares of Common
Stock or otherwise (other than failure by Seaside to provide the
information reasonably request by Target Company for inclusion in the
Reegistration Statement) then as partial relief for the damages to any
holder of Registrable Securities by reason of any such delay in or
reduction of its ability to sell the underlying shares of Common Stock
(which remedy shall not be exclusive of any other remedies at law or in
equity), the Target Company will pay as liquidated damages (the
"Liquidated Damages") to Seaside, at Seaside's option, either a cash
amount or shares of the Target Company's Common Stock within three (3)
business days, after demand therefore, equal to three percent (3%) of
the Per Share Market Value of the Common Stock outstanding as
Liquidated Damages.
(d) Liquidated Damages. The Target Company and Seaside hereto
acknowledge and agree that the sums payable under subsections 2(c)
above shall constitute liquidated damages and not penalties and are in
addition to all other rights of Seaside, including the right to call a
default. The parties further acknowledge that (i) the amount of loss or
damages likely to be incurred is incapable or is difficult to precisely
estimate, (ii) the amounts specified in such subsections bear a
reasonable relationship to, and are not plainly or grossly
disproportionate to, the probable loss likely to be incurred in
connection with any failure by the Target Company to obtain or maintain
the effectiveness of a Registration Statement, (iii) one of the reasons
for the Target Company and Seaside reaching an agreement as to such
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amounts was the uncertainty and cost of litigation regarding the
question of actual damages, and (iv) the Target Company and Seaside are
sophisticated business parties and have been represented by
sophisticated and able legal counsel and negotiated this Agreement at
arm's length.
3. RELATED OBLIGATIONS.
(a) The Target Company shall keep the Registration Statement effective
pursuant to Rule 415 at all times until the date on which Seaside shall
have sold all the Registrable Securities covered by such Registration
Statement or until the date on which, in the opinion of counsel to the
Target Company, Seaside shall be entitled to sell all of the
Registerable Securities pursuant to Rule 144 in one transaction (the
"Registration Period"), which Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein)
shall not contain any 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 in which
they were made, not misleading.
(b) The Target Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with such
Registration Statement, which prospectus is to be filed pursuant to
Rule 424 promulgated under the 1933 Act, as may be necessary to keep
such Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all
Registrable Securities of the Target Company covered by such
Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in
such Registration Statement. In the case of amendments and supplements
to a Registration Statement which are required to be filed pursuant to
this Agreement (including pursuant to this Section 3(b)) by reason of
the Target Company's filing a report on Form 10-KSB, Form 10-QSB or
Form 8-K or any analogous report under the Securities Exchange Act of
1934, as amended (the "1934 Act"), the Target Company shall incorporate
such report by reference into the Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC
on the same day on which the 1934 Act report is filed which created the
requirement for the Target Company to amend or supplement the
Registration Statement.
(c) The Target Company shall furnish to Seaside, without charge, (i) at
least one (1) copy of such Registration Statement as declared effective
by the SEC and any amendment(s) thereto, including financial statements
and schedules, all documents incorporated therein by reference, all
exhibits and each preliminary prospectus, (ii) ten (10) copies of the
final prospectus included in such Registration Statement and all
amendments and supplements thereto (or such other number of copies as
Seaside may reasonably request) and (iii) such other documents as
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Seaside may reasonably request from time to time in order to facilitate
the disposition of the Registrable Securities owned by Seaside.
(d) The Target Company shall use its best efforts to (i) register and
qualify the Registrable Securities covered by a Registration Statement
under such other securities or "blue sky" laws of such jurisdictions in
the United States as Seaside reasonably requests, (ii) prepare and file
in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as
may be necessary to maintain the effectiveness thereof during the
Registration Period, (iii) take such other actions as may be necessary
to maintain such registrations and qualifications in effect at all
times during the Registration Period, and (iv) take all other actions
reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Target
Company shall not be required in connection therewith or as a condition
thereto to (w) make any change to its certificate of incorporation or
by-laws, (x) qualify to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d), (y)
subject itself to general taxation in any such jurisdiction, or (z)
file a general consent to service of process in any such jurisdiction.
The Target Company shall promptly notify Seaside of the receipt by the
Target Company of any notification with respect to the suspension of
the registration or qualification of any of the Registrable Securities
for sale under the securities or "blue sky" laws of any jurisdiction in
the United States or its receipt of actual notice of the initiation or
threat of any proceeding for such purpose.
(e) As promptly as practicable after becoming aware of such event or
development, the Target Company shall notify Seaside in writing of the
happening of any event as a result of which the prospectus included in
a Registration Statement, as then in effect, includes an untrue
statement of a material fact or omission 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 (provided that in no event shall such notice contain any
material, nonpublic information), and promptly prepare a supplement or
amendment to such Registration Statement to correct such untrue
statement or omission, and deliver ten (10) copies of such supplement
or amendment to Seaside. The Target Company shall also promptly notify
Seaside in writing (i) when a prospectus or any prospectus supplement
or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to Seaside by
facsimile on the same day of such effectiveness), (ii) of any request
by the SEC for amendments or supplements to a Registration Statement or
related prospectus or related information, and (iii) of the Target
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(f) The Target Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction within the
United States of America and, if such an order or suspension is issued,
to obtain the withdrawal of such order or suspension at the earliest
possible moment and to notify Seaside of the issuance of such order and
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the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
(g) At the reasonable request of Seaside, the Target Company shall
furnish to Seaside, on the date of the effectiveness of the
Registration Statement and thereafter from time to time on such dates
as Seaside may reasonably request (i) a letter, dated such date, from
the Target Company's independent certified public accountants in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, and
(ii) an opinion, dated as of such date, of counsel representing the
Target Company for purposes of such Registration Statement, in form,
scope and substance as is customarily given in an underwritten public
offering, addressed to Seaside.
(h) The Target Company shall make available for inspection by (i)
Seaside and (ii) one (1) firm of accountants or other agents retained
by Seaside (collectively, the "Inspectors") all pertinent financial and
other records, and pertinent corporate documents and properties of the
Target Company (collectively, the "Records"), as shall be reasonably
deemed necessary by each Inspector, and cause the Target Company's
officers, directors and employees to supply all information which any
Inspector may reasonably request; provided, however, that each
Inspector shall agree, and Seaside hereby agrees, to hold in strict
confidence and shall not make any disclosure (except to Seaside) or use
any Record or other information which the Target Company determines in
good faith to be confidential, and of which determination the
Inspectors are so notified, unless (a) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the 1933 Act, (b)
the release of such Records is ordered pursuant to a final,
non-appealable subpoena or order from a court or government body of
competent jurisdiction, or (c) the information in such Records has been
made generally available to the public other than by disclosure in
violation of this or any other agreement of which the Inspector and
Seaside has knowledge. Seaside agrees that it shall, upon learning that
disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt
notice to the Target Company and allow the Target Company, at its
expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, the Records deemed confidential.
(h) The Target Company shall hold in confidence and not make any
disclosure of information concerning Seaside provided to the Target
Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws, (ii) the disclosure of
such information is necessary to avoid or correct a misstatement or
omission in any Registration Statement, (iii) the release of such
information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally
available to the public other than by disclosure in violation of this
Agreement or any other agreement. The Target Company agrees that it
shall, upon learning that disclosure of such information concerning
Seaside is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt written notice to
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Seaside and allow Seaside, at Seaside's expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(i) The Target Company shall use its best efforts either to cause all
the Registrable Securities covered by a Registration Statement (i) to
be listed on each securities exchange on which securities of the same
class or series issued by the Target Company are then listed, if any,
if the listing of such Registrable Securities is then permitted under
the rules of such exchange or (ii) the inclusion for quotation on the
National Association of Securities Dealers, Inc. OTC Bulletin Board for
such Registrable Securities. The Target Company shall pay all fees and
expenses in connection with satisfying its obligation under this
Section 3(i).
(j) The Target Company shall cooperate with Seaside and, to the extent
applicable, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing the
Registrable Securities to be offered pursuant to a Registration
Statement and enable such certificates to be in such denominations or
amounts, as the case may be, as Seaside may reasonably request and
registered in such names as Seaside may request.
(k) The Target Company shall use its best efforts to cause the
Registrable Securities covered by the applicable Registration Statement
to be registered with or approved by such other governmental agencies
or authorities as may be necessary to consummate the disposition of
such Registrable Securities.
(l) The Target Company shall make generally available to its security
holders as soon as practical, but not later than ninety (90) days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 0000 Xxx) covering
a twelve (12) month period beginning not later than the first day of
the Target Company's fiscal quarter next following the effective date
of the Registration Statement.
(m) The Target Company shall otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC in connection with
any registration hereunder.
(n) Within two (2) business days after a Registration Statement which
covers Registrable Securities is declared effective by the SEC, the
Target Company shall deliver, and shall cause legal counsel for the
Target Company to deliver, to the transfer agent for such Registrable
Securities (with copies to Seaside whose Registrable Securities are
included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC in the
form attached hereto as Exhibit A.
(o) The Target Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by Seaside of
Registrable Securities pursuant to a Registration Statement.
4. OBLIGATIONS OF SEASIDE.
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Seaside agrees that, upon receipt of any notice from the Target Company
of the happening of any event of the kind described in Section 3(f) or the first
sentence of 3(e), Seaside will immediately discontinue disposition of
Registrable Securities pursuant to any Registration Statement(s) covering such
Registrable Securities until Seaside's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 3(e) or receipt of notice that no
supplement or amendment is required. Notwithstanding anything to the contrary,
the Target Company shall cause its transfer agent to deliver unlegended
certificates for shares of Common Stock to a transferee of Seaside in accordance
with the terms of the Securities Purchase Agreement in connection with any sale
of Registrable Securities with respect to which Seaside has entered into a
contract for sale prior to Seaside's receipt of a notice from the Target Company
of the happening of any event of the kind described in Section 3(f) or the first
sentence of 3(e) and for which Seaside has not yet settled. Seaside shall
furnish the Target Company with such information as the Target Company
reasonably requests for disclosure in the Registration Statement as required by
the rules and regulations of the SEC.
5. EXPENSES OF REGISTRATION.
All expenses incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers, legal and accounting
fees shall be paid by the Target Company, except that Seaside shall pay all
discounts and commission relating to the sale of Registrable Securities and the
fees of any attorneys or advisors retained by Seaside.
6. INDEMNIFICATION.
With respect to Registrable Securities which are included in a
Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Target Company will,
and hereby does, indemnify, hold harmless and defend Seaside, the
directors, officers, partners, employees, agents, representatives of,
and each Person, if any, who controls Seaside within the meaning of the
1933 Act or the 1934 Act (each, an "Indemnified Person"), against any
losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys' fees, amounts paid in settlement
or expenses, joint or several (collectively, "Claims") incurred in
investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory
agency, body or the SEC, whether pending or threatened, whether or not
an indemnified party is or may be a party thereto ("Indemnified
Damages"), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a
Registration Statement or any post-effective amendment thereto or in
any filing made in connection with the qualification of the offering
under the securities or other "blue sky" laws of any jurisdiction in
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which Registrable Securities are offered ("Blue Sky Filing"), or the
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (ii) any untrue statement or alleged untrue statement of a
material fact contained in any final prospectus (as amended or
supplemented, if the Target Company files any amendment thereof or
supplement thereto with the SEC) or the omission or alleged omission to
state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements
therein were made, not misleading; or (iii) any violation or alleged
violation by the Target Company of the 1933 Act, the 1934 Act, any
other law, including, without limitation, any state securities law, or
any rule or regulation there under relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement (the
matters in the foregoing clauses (i) through (iii) being, collectively,
"Violations"). The Target Company shall reimburse Seaside and each such
controlling person promptly as such expenses are incurred and are due
and payable, for any legal fees or disbursements or other reasonable
expenses incurred by them in connection with investigating or defending
any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a)(x)
shall not apply to a Claim by an Indemnified Person arising out of or
based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Target Company by Seaside
expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement
thereto; (y) shall not be available to the extent such Claim is based
on a failure of Seaside to deliver or to cause to be delivered the
prospectus made available by the Target Company, if such prospectus was
timely made available by the Target Company pursuant to Section 3(c);
and (z) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of the
Target Company, which consent shall not be unreasonably withheld. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall
survive the transfer of the Registrable Securities by Seaside pursuant
to Section 9 hereof.
(b) In connection with a Registration Statement, Seaside agrees to
severally and not jointly indemnify, hold harmless and defend, to the
same extent and in the same manner as is set forth in Section 6(a), the
Target Company, each of its directors, each of its officers, employees,
representatives, or agents and each Person, if any, who controls the
Target Company within the meaning of the 1933 Act or the 1934 Act (each
an "Indemnified Party"), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934 Act
or otherwise, insofar as such Claim or Indemnified Damages arise out of
or is based upon any Violation, in each case to the extent, and only to
the extent, that such Violation occurs in reliance upon and in
conformity with written information furnished to the Target Company by
Seaside expressly for use in connection with such Registration
Statement; and, subject to Section 6(d), Seaside will reimburse any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to
amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of Seaside, which consent shall not
be unreasonably withheld; provided, further, however, that Seaside
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shall be liable under this Section 6(b) for only that amount of a Claim
or Indemnified Damages as does not exceed the net proceeds to Seaside
as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable
Securities by Seaside pursuant to Section 9. Notwithstanding anything
to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any prospectus shall not
inure to the benefit of any Indemnified Party if the untrue statement
or omission of material fact contained in the prospectus was corrected
and such new prospectus was delivered to Seaside prior to Seaside's use
of the prospectus to which the Claim relates.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
or proceeding (including any governmental action or proceeding)
involving a Claim, such Indemnified Person or Indemnified Party shall,
if a Claim in respect thereof is to be made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written
notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with counsel mutually
satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain
its own counsel with the fees and expenses of not more than one (1)
counsel for such Indemnified Person or Indemnified Party to be paid by
the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel
of the Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to actual or potential differing
interests between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding. The
Indemnified Party or Indemnified Person shall cooperate fully with the
indemnifying party in connection with any negotiation or defense of any
such action or claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the
Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action,
claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall,
without the prior written consent of the Indemnified Party or
Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party or Indemnified Person of a release from all
liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall
be subrogated to all rights of the Indemnified Party or Indemnified
Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified
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Person or Indemnified Party under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such
action.
(d) The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified
Damages are incurred.
(e) The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii)
any liabilities the indemnifying party may be subject to pursuant to
the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Registrable Securities.
8. REPORTS UNDER THE 1934 ACT.
With a view to making available to Seaside the benefits of Rule 144
promulgated under the 1933 Act or any similar rule or regulation of the SEC that
may at any time permit Seaside to sell securities of the Target Company to the
public without registration ("Rule 144") the Target Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Target Company under the 1933 Act and the
1934 Act so long as the Target Company remains subject to such
requirements (it being understood that nothing herein shall limit the
Target Company's obligations under Section 4(c) of the Securities
Purchase Agreement) and the filing of such reports and other documents
as are required by the applicable provisions of Rule 144; and
(c) furnish to Seaside so long as Seaside owns Registrable Securities,
promptly upon request, (i) a written statement by the Target Company
that it has complied with the reporting requirements of Rule 144, the
1933 Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Target Company and such other reports and
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documents so filed by the Target Company, and (iii) such other
information as may be reasonably requested to permit Seaside to sell
such securities pursuant to Rule 144 without registration.
9. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Target
Company and Seaside. Any amendment or waiver effected in accordance with this
Section 9 shall be binding upon Seaside and the Target Company. No such
amendment shall be effective to the extent that it applies to fewer than all of
the holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent to a waiver or modification of any
provision of any of this Agreement unless the same consideration also is offered
to all of the parties to this Agreement.
10. MISCELLANEOUS.
(a) A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Target Company receives conflicting
instructions, notices or elections from two (2) or more Persons with
respect to the same Registrable Securities, the Target Company shall
act upon the basis of instructions, notice or election received from
the registered owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one (1) business day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Target Company, to: Secured Diversified Investment, Ltd.
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: CEO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Seaside: Seaside Investments PLC
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxx Xxxxx
Telephone: 00.000.000.0000
Facsimile: 00.000.000.0000
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by a courier or overnight courier service shall be rebuttable evidence
of personal service, receipt by facsimile or receipt from a nationally
recognized overnight delivery service in accordance with clause (i), (ii) or
(iii) above, respectively.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) The laws of the State of California shall govern all
issues concerning the relative rights of the Target Company and Seaside as its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the Courts of the State of New
York, sitting in New York County and federal courts for the District of New York
sitting New York, New York, 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 brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents 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. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
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 in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(e) This Agreement and the Purchase Agreement and related
documents constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions, promises,
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warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Purchase Agreement and related documents
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
(f) This Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
(j) This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement
to be duly executed as of day and year first above written.
TARGET COMPANY:
SECURED DIVERSIFIED INVESTMENT, LTD.
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
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