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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of March
31, 2000, is between the investor or investors signatory hereto (each an
"Investor" and together the "Investors"), and xXxxxxxx.xxx, a Delaware
corporation (the "Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Investors are committing to purchasing from the Company, pursuant
to a Common Stock and Warrants Purchase Agreement dated the date hereof (the
"Purchase Agreement"), up to 2,333,334 shares of Common Stock and Warrants to
purchase up to 700,000 shares of the Company's Common Stock and the Investors
are being given Rights to purchase up to an additional 2,333,334 shares of
Common Stock (terms not defined herein shall have the meanings ascribed to them
in the Purchase Agreement);
WHEREAS, the Company issued to the Placement Agent Warrants to purchase
58,333 shares of Common Stock having a per share exercise price equal to 100% of
the closing bid price of the Common Stock on the first Closing Date; and
WHEREAS, the Company desires to grant to the Investors and the
Placement Agent the registration rights set forth herein with respect to the
Shares purchased pursuant to the Purchase Agreement and shares of Common Stock
issuable upon exercise of the Warrants and the Placement Agent's Warrants
(hereinafter referred to as the "Stock" or "Securities" of the Company).
NOW, THEREFORE, the parties hereto mutually agree as follows:
Section 1. REGISTRABLE SECURITIES. As used herein the term "Registrable
Security" means the Securities until (i) the Registration Statement has been
declared effective by the Commission (as defined below), and all Securities have
been disposed of pursuant to the Registration Statement, (ii) all Securities
have been sold under circumstances under which all of the applicable conditions
of Rule 144 (or any similar provision then in effect) under the Securities Act
("Rule 144") are met, (iii) all Securities have been otherwise transferred to
holders who may trade such Securities without restriction under the Securities
Act, and the Company has delivered a new certificate or other evidence of
ownership for such Securities not bearing a restrictive legend or (iv) such time
as, in the opinion of counsel to the Company, all Securities may be sold without
any time, volume or manner limitations pursuant to Rule 144(k) (or any similar
provision then in effect) under the Securities Act. The term "Registrable
Securities" means any and/or all of the securities falling within the foregoing
definition of a "Registrable Security." In the event of any merger,
reorganization, consolidation, recapitalization or other change in corporate
structure affecting the Common Stock, such adjustment shall be deemed to be made
in the definition of "Registrable Security" as is appropriate in order to
prevent any dilution or enlargement of the rights granted pursuant to this
Agreement.
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Section 2. RESTRICTIONS ON TRANSFER. Each of the Investors and the
Placement Agent acknowledges and understands that prior to the registration of
the Securities as provided herein, the Securities are "restricted securities" as
defined in Rule 144 promulgated under the Securities Act. Each of the Investors
and the Placement Agent understands that no disposition or transfer of the
Securities may be made by an Investor or the Placement Agent in the absence of
(i) an opinion of counsel to an Investor or the Placement Agent, in form and
substance reasonably satisfactory to the Company, that such transfer may be made
without registration under the Securities Act, pursuant to Regulation D or
another exemption, or (ii) such registration.
With a view to making available to the Investors and the Placement
Agent the benefits of Rule 144 under the Securities Act or any other similar
rule or regulation of the Commission that may at any time permit the Investors
and the Placement Agent to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144;
and
(b) file with the Commission in a timely manner all reports and
other documents required to be filed with the Commission pursuant to Section 13
or 15(d) under the Exchange Act by companies subject to either of such sections,
irrespective of whether the Company is then subject to such reporting
requirements.
Section 3. REGISTRATION RIGHTS WITH RESPECT TO THE SECURITIES.
(a) The Company agrees that, within sixty (60) days of the first
Closing Date, it will prepare and file a registration statement with the
Securities and Exchange Commission ("Commission"), at the sole expense of the
Company (except as provided in Section 3(c) hereof), in respect of the Investors
and the Placement Agent, so as to permit a public offering and resale of all of
the Securities under the Securities Act by the Investors and the Placement Agent
as selling stockholders.
The Company shall use its best efforts to cause such Registration
Statement to become effective within one hundred twenty (120) days from the
first Closing Date, or, if earlier, within five (5) days of SEC clearance to
request acceleration of effectiveness. The Company will notify the Investors and
the Placement Agent of the effectiveness of the Registration Statement within
one Trading Day of such event. In the event that the number of shares so
registered shall for any reason prove to be insufficient to register the resale
of all of the Securities, then the Company shall be obligated to file, within
thirty (30) days of notice from any Investor or the Placement Agent, a further
Registration Statement registering such remaining shares and shall use diligent
best efforts to prosecute such additional Registration Statement to
effectiveness within ninety (90) days of the date of such notice.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 effective under the
Securities Act until the earlier of (i) the date that none of the Securities
covered by such Registration Statement are or may become issued and outstanding,
(ii) the date that all of the Securities have been sold pursuant to such
Registration Statement, (iii) the date the Investors and the Placement Agent
receive an
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opinion of counsel to the Company, which counsel shall be reasonably acceptable
to the Investors and the Placement Agent, that the Securities may be sold under
the provisions of Rule 144 without limitation as to volume, (iv) all Securities
have been otherwise transferred to persons who may trade such shares without
restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing a
restrictive legend, or (v) all Securities may be sold without any time, volume
or manner limitations pursuant to Rule 144(k) or any similar provision then in
effect under the Securities Act in the opinion of counsel to the Company, which
counsel shall be reasonably acceptable to the Investors and the Placement Agent,
(the "Effectiveness Period").
(c) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of the
Registration Statement under subparagraph 3(a) and in complying with applicable
securities and Blue Sky laws (including, without limitation, all attorneys' fees
of the Company) shall be borne by the Company. The Investors and the Placement
Agent shall bear the cost of underwriting and/or brokerage discounts, fees and
commissions, if any, applicable to the Securities being registered and the fees
and expenses of their respective counsel. The Investors and the Placement Agent
and their respective counsel shall have a reasonable period, not to exceed five
(5) Trading Days, to review the proposed Registration Statement or any amendment
thereto, prior to filing with the Commission, and the Company shall provide each
Investor and the Placement Agent with copies of any comment letters received
from the Commission with respect thereto within two (2) Trading Days of receipt
thereof. The Company shall qualify any of the securities for sale in such states
as any Investor and the Placement Agent reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the Company
shall not be required to qualify in any state which will require an escrow or
other restriction relating to the Company and/or the sellers, or which will
require the Company to qualify to do business in such state or require the
Company to file therein any general consent to service of process. The Company
at its expense will supply the Investors and the Placement Agent with copies of
the applicable Registration Statement and the prospectus included therein and
other related documents in such quantities as may be reasonably requested by the
Investors or the Placement Agent.
(d) The Company shall not be required by this Section 3 to include
an Investor's or the Placement Agent's Securities in any Registration Statement
which is to be filed if, in the opinion of counsel for each of the Investors,
the Placement Agent and the Company (or, should they not agree, in the opinion
of another counsel experienced in securities law matters acceptable to counsel
for the Investors, the Placement Agent and the Company) the proposed offering or
other transfer as to which such registration is requested is exempt from
applicable federal and state securities laws and would result in all purchasers
or transferees obtaining securities which are not "restricted securities", as
defined in Rule 144 under the Securities Act.
(e) In the event that (i) the Registration Statement to be filed
by the Company pursuant to Section 3(a) above is not declared effective by the
Commission within the earlier of one hundred twenty (120) days from the first
Closing date or five (5) business days of clearance by the Commission to request
effectiveness, (ii) such Registration Statement is not maintained as effective
by the Company for the period set forth in Section 3(b) above, or (iii) the
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additional Registration Statement referred to in Section 3(a) is not declared
effective within ninety (90) days as set forth therein (each a "Registration
Default") then the Company will pay Investors (pro rated on a daily basis), as
liquidated damages for such failure and not as a penalty one and one-half
percent (1.5%) of the purchase price of the shares of Common Stock purchased
from the Company and held by the Investors (excluding any shares covered by an
effective Registration Statement) for each month until such Registration
Statement has been filed, and in the event of late effectiveness (in case of
clause (ii) above) or lapsed effectiveness (in the case of clause (iii) above),
one and one-half percent (1.5%) of the purchase price of the shares of Common
Stock purchased from the Company and held by the Investors for each month
(regardless of whether one or more such Registration Defaults are then in
existence) until such Registration Statement has been declared effective. Such
payment of the liquidated damages shall be made to the Investors in cash or in
shares of Common Stock, as elected by each Investor in its discretion, within
five (5) calendar days of demand, provided, however, that the payment of such
liquidated damages shall not relieve the Company from its obligations to
register the Securities pursuant to this Section. The market value of the Common
Stock for this purpose shall be the closing price (or last trade, if so
reported) on the Principal Market for each day during such Registration Default.
If the Company does not remit the payment to the Investors as set forth
above, the Company will pay the Investors reasonable costs of collection,
including attorneys' fees, in addition to the liquidated damages. The
registration of the Securities pursuant to this provision shall not affect or
limit the Investors' other rights or remedies as set forth in this Agreement.
(f) No provision contained herein shall preclude the Company from
selling securities pursuant to any Registration Statement in which it is
required to include Securities pursuant to this Section 3.
(g) If at any time or from time to time after the effective date
of any Registration Statement, the Company notifies the Investors and the
Placement Agent in writing of the existence of a Potential Material Event (as
defined in Section 3(h) below), neither the Investors nor the Placement Agent
shall offer or sell any Securities or engage in any other transaction involving
or relating to Securities, from the time of the giving of notice with respect to
a Potential Material Event until the Investors and the Placement Agent receive
written notice from the Company that such Potential Material Event either has
been disclosed to the public or no longer constitutes a Potential Material
Event; provided, however, that the Company may not so suspend the right to such
holders of Securities for more than twenty (20) days in the aggregate during any
twelve month period, during the period the Registration Statement is required to
be in effect, and if such period is exceeded, such event shall be a Registration
Default. If a Potential Material Event shall occur prior to the date a
Registration Statement is required to be filed, then the Company's obligation to
file such Registration Statement shall be delayed without penalty for not more
than twenty (20) days, and such delay or delays shall not constitute a
Registration Default. The Company must, if lawful, give the Investors and the
Placement Agent notice in writing at least two (2) Trading Days prior to the
first day of the blackout period.
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(h) "Potential Material Event" means any of the following: (a) the
possession by the Company of material information not ripe for disclosure in a
registration statement, as determined in good faith by the Chief Executive
Officer or the Board of Directors of the Company that disclosure of such
information in a Registration Statement would be detrimental to the business and
affairs of the Company; or (b) any material engagement or activity by the
Company which would, in the good faith determination of the Chief Executive
Officer or the Board of Directors of the Company, be adversely affected by
disclosure in a registration statement at such time, which determination shall
be accompanied by a good faith determination by the Chief Executive Officer or
the Board of Directors of the Company that the applicable Registration Statement
would be materially misleading absent the inclusion of such information.
Section 4. COOPERATION WITH COMPANY. The Investors and the Placement
Agent will cooperate with the Company in all respects in connection with this
Agreement, including timely supplying all information reasonably requested by
the Company (which shall include all information regarding the Investors and the
Placement Agent and proposed manner of sale of the Registrable Securities
required to be disclosed in any Registration Statement) and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Securities and entering into and performing their
obligations under any underwriting agreement, if the offering is an underwritten
offering, in usual and customary form, with the managing underwriter or
underwriters of such underwritten offering. Nothing in this Agreement shall
obligate any Investor or the Placement Agent to consent to be named as an
underwriter in any Registration Statement. The obligation of the Company to
register the Registrable Securities shall be absolute and unconditional as to
those Securities which the Commission will permit to be registered without
naming the Investors or the Placement Agent as underwriters. Any delay or delays
caused by an Investor or the Placement Agent by failure to cooperate as required
hereunder or lack of diligence or timeliness is such cooperation shall not
constitute a Registration Default.
Section 5. REGISTRATION PROCEDURES. If and whenever the Company is
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Securities Act, the Company shall
(except as otherwise provided in this Agreement), as expeditiously as possible,
subject to the Investors' and the Placement Agent assistance and cooperation as
reasonably required with respect to each Registration Statement:
(a) (i) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
whenever the Investors and the Placement Agent shall desire to sell or otherwise
dispose of the same (including prospectus supplements with respect to the sales
of securities from time to time in connection with a registration statement
pursuant to Rule 415 promulgated under the Securities Act), and (ii) take all
lawful action such that each of (A) the Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which
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they were made, not misleading, and (B) the prospectus forming part of the
Registration Statement, and any amendment or supplement thereto, does not at any
time during the Registration Period include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading;
(b) (i) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and the distribution
or delivery of any prospectus (including any supplements thereto), provide draft
copies thereof to the Investors and the Placement Agent as required by Section
3(c) and reflect in such documents all such comments as the Investors and the
Placement Agent (and their respective counsel) reasonably may propose, and (ii)
furnish to each Investor and the Placement Agent such numbers of copies of a
prospectus including a preliminary prospectus or any amendment or supplement to
any prospectus, as applicable, in conformity with the requirements of the
Securities Act, and such other documents, as such Investor or the Placement
Agent may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by such Investor or the Placement Agent;
(c) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as the Investors and the Placement Agent shall reasonably request
(subject to the limitations set forth in Section 3(c) above), and do any and all
other acts and things which may be necessary or advisable to enable each
Investor and the Placement Agent to consummate the public sale or other
disposition in such jurisdiction of the securities owned by such Investor or the
Placement Agent;
(d) list such Registrable Securities on the Principal Market, if
the listing of such Registrable Securities is then permitted under the rules of
such Principal Market;
(e) notify each Investor and the Placement Agent at any time when
a prospectus relating thereto covered by the Registration Statement is required
to be delivered under the Securities Act, of the happening of any event of which
it has knowledge as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing, and the Company shall prepare and file a curative
amendment under Section 5(a) as quickly as commercially possible;
(f) as promptly as practicable after becoming aware of such event,
notify each Investor and the Placement Agent who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by the Commission of any stop order or other
suspension of the effectiveness of the Registration Statement at the earliest
possible time and take all lawful action to effect the withdrawal, recession or
removal of such stop order or other suspension;
(g) cooperate with the Investors and the Placement Agent to
facilitate the timely preparation and delivery of certificates for the
Registrable Securities to be offered
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pursuant to the Registration Statement and enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case may
be, as the Investors and the Placement Agent reasonably may request and
registered in such names as the Investors may request; and, within three (3)
Trading Days after a Registration Statement which includes Registrable
Securities is declared effective by the Commission, deliver and cause legal
counsel selected by the Company to deliver to the transfer agent for the
Registrable Securities (with copies to the Investors) an appropriate instruction
and, to the extent necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Investors of their Registrable
Securities in accordance with the intended methods therefor provided in the
prospectus which are customary for issuers to perform under the circumstances;
(i) in the event of an underwritten offering, promptly include or
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree should
be included therein and to which the Company does not reasonably object and make
all required filings of such prospectus supplement or post-effective amendment
as soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment; and
(j) maintain a transfer agent and registrar for its Common Stock.
Section 6. INDEMNIFICATION.
(a) To the maximum extent permitted by law, the Company agrees to
indemnify and hold harmless each Investors and the Placement Agent and each
person, if any, who controls an Investor or the Placement Agent within the
meaning of the Securities Act (each a "Distributing Person") against any losses,
claims, damages or liabilities, joint or several (which shall, for all purposes
of this Agreement, include, but not be limited to, all reasonable costs of
defense and investigation and all reasonable attorneys' fees and expenses), to
which the Distributing Person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
or any related final prospectus or amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company will not be liable
in any such case to the extent, and only to the extent, that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written information
furnished to the Company by the Distributing Person, its counsel, affiliates or
any underwriter, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
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(b) To the maximum extent permitted by law, each Distributing
Person agrees that it will indemnify and hold harmless the Company, and each
officer and director of the Company or person, if any, who controls the Company
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities (which shall, for all purposes of this Agreement, include, but not
be limited to, all reasonable costs of defense and investigation and all
reasonable attorneys' fees and expenses) to which the Company or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, or any related final prospectus or amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, final prospectus or amendment or supplement
thereto in reliance upon, and in conformity with, written information furnished
to the Company by such Distributing Person, its counsel, affiliates or any
underwriter, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Distributing Person may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action against such indemnified
party, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party except to the extent the failure of
the indemnified party to provide such written notification actually prejudices
the ability of the indemnifying party to defend such action. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, assume the defense thereof,
subject to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified parties as a group
shall have the right to employ one separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by its counsel that there may be one or more legal defenses
available to the indemnifying party different from or in conflict with any legal
defenses which may be available to the indemnified party or any other
indemnified party (in which case the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party, it
being
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understood, however, that the indemnifying party shall, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the indemnified party, which firm shall be
designated in writing by the indemnified party). No settlement of any action
against an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld so long
as such settlement includes a full release of claims against the indemnified
party.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Investor shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees and
expenses), in either such case (after contribution from others) on the basis of
relative fault as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the applicable Distributing Investor on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Distributing Investor agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Notwithstanding any other provision of this Section 7, in no event
shall any (i) Investor or the Placement Agent be required to undertake liability
to any person under this Section 7 for any amounts in excess of the dollar
amount of the proceeds received by such Investor or the Placement Agent from the
sale of such Investor's or Placement Agent's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are
registered under the Securities Act and (ii) underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to
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such underwriter with respect to the Registrable Securities underwritten by it
and distributed pursuant to such Registration Statement.
Section 8. NOTICES. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder shall be in
writing and shall be delivered as set forth in the Purchase Agreement.
Section 9. ASSIGNMENT. This Agreement is binding upon and inures to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns. The rights granted the Investors and the Placement Agent
under this Agreement may be assigned to any purchaser of substantially all of
the Registrable Securities (or the rights thereto) from an Investor, as
otherwise permitted by the Purchase Agreement.
Section 10. ADDITIONAL COVENANTS OF THE COMPANY. The Company agrees
that at such time as it otherwise meets the requirements for the use of a
Securities Act Registration Statement on Form S-3 for the purpose of registering
the Registrable Securities, it shall file all reports and information required
to be filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of such form.
Section 11. COUNTERPARTS/FACSIMILE. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which, when taken together shall constitute but one and the same instrument, and
shall become effective when one or more counterparts have been signed by each
party hereto and delivered to the other parties. In lieu of the original, a
facsimile transmission or copy of the original shall be as effective and
enforceable as the original.
Section 12. REMEDIES. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided by law. 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 best 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.
Section 13. CONFLICTING AGREEMENTS. The Company shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 14. HEADINGS. The headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 15. GOVERNING LAW, ARBITRATION. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made in New York by persons domiciled in New York City
and without regard to its principles of
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conflicts of laws. Any dispute under this Agreement shall be submitted to
arbitration under the American Arbitration Association (the "AAA") in New York
City, New York, and shall be finally and conclusively determined by the decision
of a board of arbitration consisting of three (3) members (hereinafter referred
to as the "Board of Arbitration") selected as according to the rules governing
the AAA. The Board of Arbitration shall meet on consecutive business days in New
York City, New York, and shall reach and render a decision in writing (concurred
in by a majority of the members of the Board of Arbitration) with respect to the
amount, if any, which the losing party is required to pay to the other party in
respect of a claim filed. In connection with rendering its decisions, the Board
of Arbitration shall adopt and follow the laws of the State of New York. To the
extent practical, decisions of the Board of Arbitration shall be rendered no
more than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. Any decision made by the Board
of Arbitration (either prior to or after the expiration of such thirty (30)
calendar day period) shall be final, binding and conclusive on the parties to
the dispute, and entitled to be enforced to the fullest extent permitted by law
and entered in any court of competent jurisdiction. The Board of Arbitration
shall be authorized and is hereby directed to enter a default judgment against
any party failing to participate in any proceeding hereunder within the time
periods set forth in the AAA rules. The non-prevailing party to any arbitration
(as determined by the Board of Arbitration) shall pay the expenses of the
prevailing party, including reasonable attorneys' fees, in connection with such
arbitration. Any party shall be entitled to obtain injunctive relief from a
court in any case where such relief is available.
11
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed, on the day and year first
above written.
Investors: xXxxxxxx.xxx, Inc.
AMRO International, S.A.
By: /s/ Xxxxxxx X. Xxxxxxx
By: /s/ signature illegible ------------------------------
--------------------------------
Name:
------------------------------
Title: Director Placement Agent:
-----------------------------
CALP II Limited Partnership, a Thomson Kernaghan & Co., Ltd.
Bermuda limited partnership
By:
By: VMH Investment Management Ltd., ------------------------------
a Bahamas company, general partner Name:
----------------------------
By: /s/ X. XxXxxxxx Title:
-------------------------------- ---------------------------
Name:
------------------------------
Title:
-----------------------------
Xxxxxxx Trust Reg
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Balmore SA
By: /s/ Francois Morax
--------------------------------
Name: Francois Morax
------------------------------
Title: Director
-----------------------------
Xxxxxx X. Xxxxxx, Manager of Xxxxxx Management
LLC, General Partner of Xxxxxx Investments, LLLP
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Manager of Xxxxxx Management LLC,
General Partner of Xxxxxx Investments, LLLP
worldVentures Fund I, LLC
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------
Title: President of the Managing Member
---------------------------------
RBB Bank Aktiengesellschaft
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------
Title: Managing Director of US equity
-------------------------------
12
