REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is made and entered into as of January 10, 2007, by and among Xxxxx World Trade,
Ltd., a Nevada corporation (the “Company”)
and each Holder of shares of Series A Convertible Preferred Stock (the “A
Shares”) of the Company pursuant to a Securities Purchase Agreement,
dated as of the date hereof, by and between each Investor and the Company (the
“SPA”).
The
Underlying Shares shall have the registration rights as set forth
herein.
The
Company and the Investors hereby agree as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Term Sheet
shall have the meanings given such terms in the Term Sheet. As used in this
Agreement, the following terms shall have the following meanings:
“Certificate
of Designation” means the Certificate of Designation for the A
Shares.
“Closing
Date” means the date of the closing of the Financing.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the Company’s common stock par value $0.001 per
share.
“Conversion
Shares” means all shares of
Common Stock issuable upon conversion of the A Shares.
“Dividend
Shares” means any shares of Common Stock issuable as dividend payments in
respect of the A Shares as provided in the Certificate of Designation (including
the Conversion Shares if dividend payments are made in A Shares).
“Effectiveness
Period” shall mean from the date hereof until the earlier to occur of the
date when all Registrable Securities covered by a Registration Statement either
(a) have been sold pursuant to a Registration Statement or an exemption from the
registration requirements of the Securities Act, and (b) pursuant to a written
opinion of Company counsel acceptable to the Company’s transfer agent and the
legal counsel for the Holders, may be sold pursuant to Rule 144(k).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Holder”
or “Holders”
means the holder or holders, as the case may be, from time to time of
Registrable Securities (including any permitted assignee).
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Investor”
shall mean each purchaser of A Shares pursuant to the SPA.
“Investors”
shall mean, collectively, each Investor.
“Losses”
shall have the meaning set forth in Section 5(a).
“Mandatory
Effectiveness Date” means, with respect to the Mandatory Registration
Statement required to be filed pursuant to Section 2(a) of this
Agreement.
“Mandatory
Filing Date” shall
have the meaning set forth in Section 2(a).
“Mandatory
Registration Date” shall have the meaning set forth in Section 2(a).
“Mandatory
Registration Statement” shall have the meaning set forth in Section 2(a).
“Offering”
means the sale by the Company of the A Shares pursuant to the SPA.
“Person”
shall mean an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision thereof) or other entity
of any kind.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Conversion Registrable Securities or Exchange Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
“Registrable
Securities” means (i) the Underlying Shares, (ii) Dividend Shares; and
(iii) any shares of Common Stock issued or issuable upon any stock split,
dividend or other distribution, recapitalization, anti-dilution adjustment or
similar event with respect to the foregoing or in connection with any provisions
of the Certificate of Designation.
“Registration
Statement” means any registration statement required to be filed
hereunder (which, at the Company's option, may be an existing registration
statement of the Company previously filed with the Commission, but not declared
effective), including (in each case) the Prospectus, amendments and supplements
to the registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in the registration
statement.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
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“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended.
“Stated
Value” shall have the meaning set forth in the Certificate of
Designation.
“Trading
Day” means (a) a day on which the Common Stock is traded on a
Trading Market, or (b) if the Common Stock is not quoted on a Trading
Market, a day on which the Common Stock is quoted in the over-the-counter market
as reported by the National Quotation Bureau Incorporated (or any similar
organization or agency succeeding to its functions of reporting price);
provided, that in the event that the Common Stock is not listed or quoted as set
forth in (a), and (b) hereof, then Trading Day shall mean a Business
Day;
“Trading
Market” means the following markets or exchanges on which the Common
Stock is listed or quoted for trading on the date in question: the OTC Bulletin
Board, the American Stock Exchange, the New York Stock Exchange, the Nasdaq
National Market or the Nasdaq SmallCap Market.
2. Registration.
(a) Mandatory
Registration. On the date nine (9) months from the date of the
initial closing of the Offering (the “Mandatory
Registration Date”), the Company shall file with the Commission a
Registration Statement (the “Mandatory
Registration Statement”), covering the resale of all of the Registrable
Securities for an offering to be made on a continuous basis pursuant to
Rule 415. The Mandatory Registration Statement required hereunder shall be
on Form S-1, Form SB-2 or Form S-3 (except if the Company is not then eligible
to register for resale the Registrable Securities on Form S-1, Form SB-2 or Form
S-3, in which case the Mandatory Registration Statement shall be on another
appropriate form in accordance herewith). The Mandatory Registration Statement
required hereunder shall contain the Plan of Distribution, attached hereto as
Annex
A (which may be modified to respond to comments, if any, received from
the Commission staff). The Company shall cause the Mandatory Registration
Statement to become effective, no later than ninety (90) days after the
Mandatory Filing Date (the “”Mandatory
Effectiveness Date”), and remain effective as provided herein. The
Company shall use its best efforts to cause the Mandatory Registration Statement
to be declared effective under the Securities Act and shall keep the Mandatory
Registration Statement continuously effective under the Securities Act for the
entire Effectiveness Period.
(b) Filing Default
Damages. If the Mandatory Registration Statement is not filed
on or prior to the Mandatory Filing Date, then the Company shall pay to the
Holders of the Underlying Shares, for each thirty (30) day period of such
failure and until the date a Mandatory Registration Statement is filed or the
Registrable Securities may be sold pursuant to Rule 144(k), whichever comes
first, an amount in cash, as partial liquidated damages and not as a penalty,
equal to two (2%) percent of the Stated Value for each A Share. If the Company
fails to pay any partial liquidated damages pursuant to this Section 2(b) in full
within five (5) days of the date payable, the Company shall pay interest thereon
at a rate of 18% per annum (or such lesser maximum amount that is permitted to
be paid by applicable law) to the Holders, accruing daily from the date such
partial liquidated damages are due until such amounts, plus all such interest
thereon, are paid in full.
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(c) Effectiveness, Etc. Default
Damages. If the Mandatory Registration Statement is not
declared effective by the Commission on or prior to the Mandatory Effectiveness
Date, or the Commission declares any such Registration Statement effective, but
the Holders of Registrable Securities cannot sell such Registrable Securities
thereunder, for any reason relating to the Company which is not cured within
sixty (60) days after its receipt of written notice of the reason, then the
Company shall pay to the Holder, for each thirty (30) day period until the
Registration Statement is declared effective (or the Holders of Registrable
Securities can sell thereunder, as the case may be), an amount in cash equal to
two (2%) percent of the Stated Value of each A Share.
(d) Piggyback Registrations
Rights. If, at any time following the date hereof, and there is not an
effective Registration Statement covering the Registrable Securities and
the Company shall determine to prepare and file with the Commission a
registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans, then the Company shall send to each Holder a written notice of such
determination at least twenty (20) days prior to the filing of any such
registration statement and shall automatically include in such
registration statement all Registrable Securities; provided, however, that (i) if,
at any time after giving written notice of is intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company determines for any reason not
to proceed with such registration, the Company will be relieved of its
obligation to register any Registrable Securities in connection with such
registration, and (ii) in case of a determination by the Company to delay
registration of its securities, the Company will be permitted to delay the
registration of Registrable Securities for the same period as the delay in
registering such other securities.
3. Registration
Procedures. In connection with the Company's registration
obligations hereunder, and during the Effectiveness Period, the Company
shall:
(a) Not
less than five (5) business days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or supplement thereto, the
Company shall furnish to Holders, a draft of the Registration Statement, or any
related Prospectus or any amendment or supplement thereto.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period; (ii) cause the related Prospectus to be amended or supplemented by any
required Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; and (iii) respond to any comments received from the
Commission staff with respect to the Registration Statement or any amendment
thereto.
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(c) Notify
as promptly as reasonably possible, but no later than three (3) business days,
each Holder of Registrable Securities included in the Registration Statement:
(i) (A) when a Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement has been filed, provided such Holder
has previously requested in writing to receive notice of such filing; (B) when
the Commission notifies the Company whether there will be a “review” of the
Registration Statement and whenever the Commission staff comments in writing on
the Registration Statement, provided such Holder
has previously requested in writing to receive notice of such notification; and
(C) when the Registration Statement or any post-effective amendment has become
effective; (ii) of any request by the Commission staff or any other Federal or
state governmental authority during the period of effectiveness of the
Registration Statement for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation of
any Proceeding for such purpose; and (v) of the occurrence of any event or
passage of time that makes the financial statements included in the Registration
Statement ineligible for inclusion therein or any statement made in the
Registration Statement or Prospectus or any document incorporated or deemed to
be incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Use
its best efforts to avoid the issuance of, or if issued, obtain the withdrawal
of (i) any order suspending the effectiveness of the Registration Statement, or
(ii) any suspension of the qualification (or exemption from qualification) of
any of the Registrable Securities for sale in any jurisdiction, at the earliest
practicable moment.
(e) Promptly
deliver to each Holder no later than three (3) business days after the
Effectiveness Date, without charge, two (2) copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto (and, upon the request of the Holder such additional copies
as such Persons may reasonably request in connection with resales by the Holder
of Registrable Securities). The Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by the Holder in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto, except after the giving of
any notice pursuant to Section 3(c).
(f) Prior
to any resale of Registrable Securities by a Holder, use its best efforts to
register or qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the registration or
qualification) of such Registrable Securities for the resale by the Holder under
the securities or Blue Sky laws of such jurisdictions within the United States
as any Holder reasonably requests in writing, to keep such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, subject the Company to any
material tax in any such jurisdiction where it is not then so subject or file a
general consent to service of process in any such jurisdiction.
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(g) Upon
the occurrence of any event contemplated by Section 3(c)(v),
as promptly as reasonably possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(h) Use
its best efforts to comply with all applicable rules and regulations of the
Commission relating to the registration of the Registrable Securities pursuant
to the Registration Statement or otherwise.
(i) The
Company agrees that the Selling Shareholder Questionnaire attached hereto as
Exhibit
A,
satisfies all of the information required to be provided by each Holder in
connection with the Registration Statement. The Company shall not be
required to include any Holder that does not complete, date and execute a
Selling Shareholder Questionnaire.
(j) The
Company shall either (a) cause all the Registrable Securities covered by a
Registration Statement to be listed on each securities exchange on which
securities of the same class or series issued by the Company are then listed, if
any, if the listing of such Registrable Securities is then permitted under the
rules of such exchange, or (b) secure designation and quotation of all the
Registrable Securities covered by the Registration Statement on the Nasdaq
National Market or the Nasdaq SmallCap Market, or, (c) if the Company is
unsuccessful in satisfying the preceding clauses (a) or (b), the Company
shall secure the inclusion for quotation on The American Stock Exchange, Inc. or
if it is unable to, the NASD Bulletin Board for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
(2) market makers to register with the National Association of Securities
Dealers, Inc. (“NASD”)
as such with respect to such Registrable Securities. Notwithstanding the
requirements of Sections 3(j) (a) through (c) above, the Company may cause all
Company securities and the Registrable Securities covered by a Registration
Statement to be listed on the London Stock Exchange Alternative Investment
Market (“AIM”). The Company shall pay
all fees and expenses in connection with satisfying its obligation under this
Section 3(j).
(k) The
Company covenants that it shall file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC. thereunder so long as the Holder owns any Registrable
Securities, but in no event longer than two (2) years; provided, however, the Company
may delay any such filing but only pursuant to Rule 12b-25 under the
Exchange Act, and the Company shall take such further reasonable action as the
Holder may reasonably request (including, without limitation, promptly obtaining
any required legal opinions from Company counsel necessary to effect the sale of
Registrable Securities under Rule 144 and paying the related fees and
expenses of such counsel), all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by
(a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Moreover, if Company securities are listed on the
AIM, it shall file all reports required to be filed pursuant to the applicable
law, rules and regulations applying to companies whose securities are listed on
the AIM. Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
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4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to the Registration
Statement, other than fees and expenses of counsel or any other advisor retained
by the Holders and discounts and commissions with respect to the sale of any
Registrable Securities by the Holders. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect
to filings required to be made with the Trading Market on which the Common Stock
is then listed for trading, and (B) in compliance with applicable state
securities or Blue Sky laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities and of
printing prospectuses if the printing of prospectuses is reasonably requested by
the holders of a majority of the Registrable Securities included in the
Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance, and (vi) fees and
expenses of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement.
5. Indemnification
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless the Holder, the officers, directors,
agents and employees of it, each Person who controls the Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, agents and employees of each such
controlling Person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys' fees) and expenses (including the cost
(including without limitation, reasonable attorneys’ fees) and expenses relating
to an Indemnified Party’s actions to enforce the provisions of this Section 5)
(collectively, “Losses”),
as incurred, to the extent arising out of or relating to any untrue or alleged
untrue statement of a material fact contained in the Registration Statement, any
Prospectus or any form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in light of the circumstances under which
they were made) not misleading, except to the extent, but only to
the extent, that (1) such untrue statements or omissions are based solely
upon information regarding such Holder furnished (or in the case of an omission,
not furnished) in writing to the Company by or on behalf of such Holder
expressly for use therein, or to the extent that such information relates
to such Holder or such Holder's proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto (it being understood that
the Holder has approved Annex A hereto for this purpose), (2) in the case of an
occurrence of an event of the type specified in Section 3(c)(ii)-(v),
the use by such Holder of an outdated or defective Prospectus after the Company
has notified such Holder in writing that the Prospectus is outdated or defective
and prior to the receipt by such Holder of the Advice contemplated in Section 6(b), or (3) the failure
of the Holder to deliver a prospectus prior to the confirmation of a
sale. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
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(b) Indemnification by
Holder. The Holder shall indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from and
against all Losses, as incurred, to the extent arising out of or based upon: (x)
the Holder's failure to comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished (or in the case of an omission, not furnished) in writing by or on
behalf of such Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus or (ii) to the extent that (1) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished (or in the case of an omission, not furnished) in writing to
the Company by or on behalf of such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities, such Prospectus or such form
of Prospectus or in any amendment or supplement thereto, or (2) in the case of
an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use
by such Holder of an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated or defective and
prior to the receipt by such Holder of the Advice contemplated in Section 6(b), or (3) the failure
of the Holder to deliver a Prospectus prior to the confirmation of a sale. In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the Subscription Amount paid by the Holder in the
Purchase Agreement.
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted against any
Person entitled to indemnity hereunder (an “Indemnified
Party”), such Indemnified Party shall promptly notify the Person from
whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that such failure shall have materially
prejudiced the Indemnifying Party.
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An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume
the defense of such Proceeding and to employ counsel reasonably satisfactory to
such Indemnified Party in any such Proceeding; or (3) the named parties to any
such Proceeding (including any impleaded parties) include both such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense
thereof and the reasonable fees and expenses of one separate counsel for all
Indemnified Parties in any matters related on a factual basis shall be at the
expense of the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such Proceeding affected without its written consent,
which consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending Proceeding in respect of which any Indemnified Party
is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of
such Proceeding.
All
reasonable fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten (10)
Trading Days of written notice thereof to the Indemnifying Party; provided, that the
Indemnified Party shall promptly reimburse the Indemnifying Party for that
portion of such fees and expenses applicable to such actions for which such
Indemnified Party is not entitled to indemnification hereunder, determined based
upon the relative faults of the parties.
(d) Contribution. If a
claim for indemnification under Section 5(a) or
Section 5(b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c),
any reasonable attorneys' or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its
terms.
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6. Miscellaneous.
(a) Compliance. The
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(b) Amendments and
Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
same shall be in writing and signed by the Company and each Holder of the then
outstanding Registrable Securities.
(c) Notices. Any and all
notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the Trading Day following the date of delivery to the
courier service, if sent by nationally recognized overnight courier service,
(ii) the third Trading Day following the date of mailing, if sent by
first-class, registered or certified mail, postage prepaid, (iii) the Trading
Day following transmission by electronic mail with receipt confirmed or
acknowledged, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications
shall be delivered and addressed as set forth in the Purchase Agreement or to
such other address as shall be designated in writing from time to time by a
party hereto.
(d) Successors and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and permitted assigns of each of the parties and shall inure to
the benefit of the Holder.
(e) Execution and
Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and, all of which taken together shall constitute one and the same Agreement. In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and effect
as if such facsimile signature were the original thereof.
(f) Governing Law. This
Agreement shall be governed by and construed exclusively in accordance with the
internal laws of the State of New York without regard to the conflicts of laws
principles thereof. The parties hereto hereby irrevocably agree that any suit or
proceeding arising directly and/or indirectly pursuant to or under this
Agreement, shall be brought solely in a federal or state court located in the
City, County and State of New York. By its execution hereof, the parties hereby
covenant and irrevocably submit to the in personam jurisdiction
of the federal and state courts located in the City, County and State of New
York and agree that any process in any such action may be served upon any of
them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if
personally served upon them in New York City. The parties hereto waive any claim
that any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements.
- 10
-
(g) Severability. If any
term, provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their commercially reasonable
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(h) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
[Remainder
of page intentionally left blank]
- 11
-
IN WITNESS WHEREOF, the
parties have executed this Registration Rights Agreement as of the date first
written above.
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XXXXX
WORLD TRADE, LTD.
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By:
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| Name: |
Xxxxx
X. Xxxxxxxx
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| Title: |
Executive
Vice President and
Chief
Executive
Officer
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- 12
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INVESTOR’S
SIGNATURE PAGE
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NAME REDACTED
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By:
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/s/NAME REDACTED
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Name: NAME
REDACTED
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Title: Chief Operating Officer
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Address:
Address
Redacted
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Facsimile
Number: Number
Redacted
- 13
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ANNEX A
Plan of
Distribution
The
Selling Stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed
or negotiated prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
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·
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ordinary
brokerage transactions and transactions in which the broker/dealer
solicits purchasers;
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·
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block
trades in which the broker/dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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·
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purchases
by a broker/dealer as principal and resale by the broker/dealer for its
account;
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·
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an
exchange distribution in accordance with the Rules of the applicable
exchange;
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·
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privately
negotiated transactions;
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·
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settlement
of short sales;
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·
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broker/dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
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·
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a
combination of any such methods of sale;
and
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·
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any
other method permitted pursuant to applicable
law.
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The
Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker/dealers
engaged by the Selling Stockholders may arrange for other brokers/dealers to
participate in sales. Broker/dealers may receive commissions from the Selling
Stockholders (or, if any broker/dealer acts as agent for the purchaser of
shares, from the purchaser) in amounts to be negotiated. The Selling
Stockholders do not expect these commissions to exceed what is customary in the
types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock from time to time under this
prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act of 1933
amending the list of Selling Stockholders to include the pledgee, transferee or
other successors in interest as Selling Stockholders under this
prospectus.
The
Selling Stockholders and any broker/dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker/dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions under the
Securities Act. The Selling Stockholders have informed the Company that it does
not have any agreement or understanding, directly or indirectly, with any person
to distribute the Common Stock.
The
Company is required to pay all fees and expenses incident to the registration of
the shares. The Company has agreed to indemnify the Selling Stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
2
EXHIBIT
A
SELLING
STOCKHOLDER QUESTIONNAIRE
Xxxxx
World Trade
Ladies
and Gentlemen:
I acknowledge that I am a holder of
securities of Xxxxx World Trade, Ltd. (the “Company”). I
understand that I will be named as a selling stockholder in the prospectus that
forms a part of the registration statement on Form S-1 (or other applicable
form) that the Company will file with the Securities and Exchange Commission to
register under the Securities Act of 1933, as amended, the securities I expect
to sell. The Company will use the information that I provide in this
Questionnaire to ensure the accuracy of the registration statement and the
prospectus.
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Please
answer every question.
If
the answer to any question is “none” or “not applicable,” please so
state.
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1.
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Name. Type
or print your name exactly as it should appear in the Registration
Statement.
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2.
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Manner
of Ownership of Shares:
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Individual
_______ Community Property
________ Tenants in Common
_______
Joint Tenants with
Rights of Survivorship
________ Corporate
________
Partnership
______ Trust
________ Other
___________________________
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3.
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Contact
Information. Provide the
address, telephone number and fax number where you can be reached during
business hours.
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Address:
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Phone:
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Fax:
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4.
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Relationship
with the Company. Describe the
nature of any position, office or other material relationship you have had
with the Company during the past three years.
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3
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5.
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Organizational
Structure. Please
indicate or (if applicable) describe how you are
organized.
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(a)Are
you a natural
person?
(if so, please xxxx the box
and skip to Question 5)
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o Yes o
No
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(b)Are
you a reporting
company under the 1934 Act?
(if so, please xxxx the box
and skip to Question 5)
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o Yes o
No
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(c)Are
you a majority-owned
subsidiary of a reporting company under the 1934 Act?
(if so, please xxxx the box
and skip to Question 5)
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o Yes o
No
|
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(d)Are
you a registered
investment fund under the 1940 Act?
(if so, please xxxx the box
and skip to Question 5)
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o
Yes o
No
|
If you
have answered "no" to all of the foregoing questions, please describe: (i) the
exact legal description of your entity (e.g., corporation, partnership, limited
liability company, etc.); (ii) whether the legal entity so described is managed
by another entity and the exact legal description of such entity (repeat this
step until the last entity described is managed by a person or persons, each of
whom is described in any one of (a) through (d) above), (iii) the names of each
person or persons having voting and investment control over the Company's
securities that the entity owns (e.g., director(s), general partner(s), managing
member(s), etc.).
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Legal Description of Entity:
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Name of Entity(ies) Managing Such Entity (if any):
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Name of Entity(ies) Managing such Entity(ies) (if any):
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Name(s)
of Natural Persons Having Voting or Investment
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Control Over the Shares Held by such Entity(ies):
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4
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6.
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Ownership
of the Company’s Securities. This question covers your
beneficial ownership of the Company’s securities. Please
consult the Appendix A to
this Questionnaire for information as to the meaning of “beneficial
ownership.” State the number of shares of the Company’s common
stock that you beneficially owned as of the date this Questionnaire is
signed:
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No. of Shares of Stock
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7.
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Acquisition
of Shares. Please
describe below the manner in which you acquired your shares of Common
Stock of the Company including, but not limited to, the date, the name and
address of the seller(s), the purchase price and pursuant to which
documents (the “Acquisition
Documents”). Please forward such documents used to
acquire your shares as provided
below.
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8.
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Plan
of Distribution. I have reviewed the proposed “Plan of
Distribution” attached to this Registration Rights Agreement as Annex
A, and agree that the statements contained therein reflect my
intended method(s) of distribution or, to the extent these statements are
inaccurate or incomplete, I have communicated in writing to one of the
parties listed above my signature to any changes to the proposed “Plan of
Distribution” that are required to make these statements accurate and
complete. ¨ (Please check
the box if you have made any changes to Appendix
B)
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9.
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Reliance
on Responses. I acknowledge and agree that the Company and its
legal counsel shall be entitled to rely on my responses in this
Questionnaire in all matters pertaining to the registration statement and
the sale of any shares of common stock of the Company pursuant to the
registration statement.
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10.
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NASD. The
National Association of Securities Dealers, Inc. (“NASD”)
may request, in connection with their review of the Registration Statement
and Prospectus under the Securities Act of 1933, as amended, that the
Company inform them of the names of all persons who purchased securities
from the Company, together with any affiliations with the NASD of such
purchasers. In order to aid the Company in responding to such request, the
undersigned furnishes the following
information:
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PART
A: DETERMINATION OF RESTRICTED PERSON STATUS:
Please check all appropriate
categories.
The undersigned is:
___
(i) a
broker-dealer;
___
(ii) an
officer, director, general partner, associated person1
or employee of a broker-dealer (other than a limited business
broker-dealer)2;
1 A person “associated with” a
broker-dealer includes any natural person engaged in the investment banking or
securities business who is directly or indirectly controlling or controlled by a
broker-dealer, any partner, director, officer or sole proprietor of a
broker-dealer.
2 A limited business broker-dealer is any
broker-dealer whose authorization to engage in the securities business is
limited solely to the purchase and sale of investment company/variable contracts
securities and direct participation program securities.
5
___
(iii) an agent
of a broker-dealer (other than a limited business broker-dealer) that is engaged
in the investment banking or securities business;
___
(iv) an
immediate family member3
of a person described in (ii) or (iii) above. Under certain circumstances, if
the undersigned checks this category, he/she/it may be able to participate in
New Issue investments. The Company may request additional information
in order to determine the eligibility of the undersigned under
this Restricted Person category;
___
(v) a finder
or any person acting in a fiduciary capacity to a managing underwriter,
including, but not limited to, attorneys, accountants and financial
consultants;
___
(vi) a person
who has authority to buy or sell securities for a bank, savings and loan
institution, insurance company, investment company, investment advisor or
collective investment account4
(including a private investment vehicle such as a hedge fund or an offshore
fund);
___
(vii) an
immediate family member of a person described in (v) or (vi) above who
materially supports5,
or receives material support from, the undersigned;
___
(viii) a person
listed or required to be listed in Schedule A, B or C of a Form BD (other than
with respect to a limited business broker-dealer), except persons whose listing
on Schedule A, B or C is related to a person identified by an ownership code of
less than 10% on Schedule A;
___
(ix) a person
that (A) directly or indirectly owns 10% or more of a public reporting company
listed, or required to be listed, in Schedule A of a Form BD or (B) directly or
indirectly owns 25% or more of a public reporting company listed, or required to
be listed in Schedule B of a Form BD, in each case (A) or (B), other than a
reporting company that is listed on a national securities exchange or is traded
on the Nasdaq National Market, or other than with respect to a limited business
broker/dealer;
___
(x) an
immediate family member of a person described in (viii) or (ix)
above. Under certain circumstances, if the undersigned places a check
next to this category, he/she/it may be able to participate in New
Issue investments. The Company may request additional information in
order to determine the eligibility of the undersigned under this Restricted
Person category;
___
(xi) any
entity (including a corporation, partnership, limited liability company, trust
or other entity) in which any person or persons listed in (i)-(x) above has a
beneficial interest6;
or
___
None of
the above categories apply and the undersigned is eligible to participate in New
Issue securities.
3 The term "Immediate family" includes the
investor’s: (i) parents, (ii) mother-in-law or father-in-law. (iii) husband or
wife, (iv) brother or sister, (v) brother-in-law or sister-in-law, (vi)
son-in-law or daughter-in-law, (vii) children, and (viii) any other person who
is supported, directly or indirectly, to a material extent by an officer,
director, general partner, employee, agent of a broker-dealer or person
associated with a broker-dealer.
4 A
"collective investment account" is any hedge fund, investment corporation, or
any other collective investment vehicle that is engaged primarily in the
purchase and/or sale of securities. investment clubs (groups of individuals who
pool their money to invest in stock or other securities and who are collectively
responsible for making investment decisions) and family investment vehicles
(legal entities that are beneficially owned solely by immediate family members
(as defined above)) are not considered
collective investment accounts.
5 The
term “material” support” means directly or indirectly providing more than 25% of
a person’s income in the prior calendar year or living in the same household
with a member of one’s Immediate family.
6 The term ‘beneficial interest” means any
economic interest such as the right to share in gains or losses. The receipt of
a management or performance based fee for operating a collective investment
account, or other fee for acting in a fiduciary capacity, is not considered a
beneficial interest in the account; however, if such fee is subsequently
invested into the account (as a deferred fee arrangement or otherwise), it is
considered a beneficial interest in that account.
6
PART
B: DETERMINATION OF EXEMPTED ENTITY STATUS:
The
undersigned is:
___
(i) a
publicly-traded entity (other than a broker-dealer or an affiliate of a
broker-dealer, where such broker-dealer is authorized to engage in the public
offering of New Issues either as a selling group member or underwriter) that is
listed on a national securities exchange or traded on the Nasdaq National Market
or is a foreign issuer whose securities meet the quantitative designation
criteria for listing on a national securities exchange or trading on the Nasdaq
National Market;
____
(ii) an
investment company registered under the Investment Company Act of 1940, as
amended;
____
(iii) a
corporation, partnership, limited liability company, trust or any other entity
(including a private investment vehicle such as a hedge fund or an offshore
fund, or a broker-dealer organized as an investment partnership)
and
(A) the
beneficial interests of Restricted Persons do not exceed in the aggregate 10% of
such entity; or
(B) such
entity limits participation by Restricted Persons to not more than 10% of the
profits and losses of New Issues;
____
(iv) an investment company organized
under the laws of a foreign jurisdiction and
(A) the
investment company is listed on a foreign exchange or authorized for sale to the
public by a foreign regulatory authority; and
(B) no
person owning more than 5% of the shares of the investment company is a
Restricted Person;
____ (v)
(A) an
employee benefits plan under the U.S. Employee Retirement Income Security Act of
1974, as amended, that is qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended (the “Code”)
and such plan is not sponsored solely by a broker-dealer, (B) a state or
municipal government benefits plan that is subject to state and/or municipal
regulation or (C) a church plan under Section 414(e) of the
Code;
___(vi) a
tax exempt charitable organization under Section 501(c)(3) of the
Code;
___
(vii) a common
trust fund or similar fund as described in Section 3(a)(12)(A)(iii) of the
Securities Exchange Act of 1934, as amended, and the Company
(A) has
investments from 1,000 or more accounts, and
(B) does
not limit beneficial interests in the Company principally to trust accounts of
Restricted Persons; or
___(viii) an
insurance company general, separate or investment account, and
(A) the
account is funded by premiums from 1,000 or more policyholders, or, if a general
account, the insurance company has 1,000 or more policyholders, and
(B) the
insurance company does not limit the policyholders whose premiums are used to
fund the account principally to Restricted Persons, or, if a general account,
the insurance company does not limit its policyholders principally to Restricted
Persons.
7
Please
acknowledge that your answers to the foregoing questions are true and correct to
the best of your information and belief by signing and dating this Questionnaire
where indicated below. Please return the completed executed
questionnaire via fax to
___________
at ( )-____- ____ as soon as
possible.
If at any time you discover that your
answer to a question was inaccurate, or if any event occurring after your
completion hereof would require a change in your answer to any questions, please
immediately contact ________________ at ( )-____- _____.
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Date:
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, 200
|
|||
|
(Print
name of selling stockholder)
|
||||
|
By:
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||||
|
(Signature)
|
||||
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Name:
|
||||
|
(Print
name)
|
||||
|
Title:
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||||
8
APPENDIX A
|
1.
|
Definition
of “Beneficial Ownership”
|
|
|
(a)
|
A
“Beneficial
Owner” of a security includes any person who, directly or
indirectly, through any contract, arrangement, understanding, relationship
or otherwise has or shares:
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(1)
|
Voting
power which includes the power to vote, or to direct the voting of, such
security; and/or
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(2)
|
Investment
power which includes the power to dispose, or direct the disposition of,
such security.f
|
Please
note that either voting power
or investment
power, or both,
is sufficient for you to be considered the beneficial owner of
shares.
|
|
(b)
|
Any
person who, directly or indirectly, creates or uses a trust, proxy, power
of attorney, pooling arrangement or any other contract, arrangement or
device with the purpose or effect of divesting such person of beneficial
ownership of a security or preventing the vesting of such beneficial
ownership as part of a plan or scheme to evade the reporting requirements
of the federal securities acts shall be deemed to be the beneficial owner
of such security.
|
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(c)
|
Notwithstanding
the provisions of paragraph (a), a person is deemed to be the “beneficial
owner” of a security, if that person has the right to acquire beneficial
ownership of such security within 60 days, including but not limited to
any right to acquire: (A) through the exercise of any
option, warrant or right; (B) through the conversion of a security;
(C) pursuant to the power to revoke a trust, discretionary account or
similar arrangement; or (D) pursuant to the automatic termination of
a trust, discretionary account or similar arrangement; provided, however,
any person who acquires a security or power specified in paragraphs (A),
(B) or (C) above, with the purpose or effect of changing or influencing
the control of the issuer, or in connection with or as a participant in
any transaction having such purpose or effect, immediately upon such
acquisition shall be deemed to be the beneficial owner of the securities
which may be acquired through the exercise or conversion of such security
or power.
|
