Form of Registration Rights Agreement
FORM
REGISTRATION
RIGHTS AGREEMENT (this "Agreement"),
dated
as of November 15, 2005,
by
and among pSivida
Limited, an
Australian corporation, with headquarters located at Xxxxx 00 XXX Xxxxxx,
00 Xxx
Xxxxxxxxx, Xxxxx Xxxxxxxxx 0000 (the "Company"),
and
the undersigned buyers (each, a "Buyer"
and
collectively, the "Buyers").
WHEREAS:
A. In
connection with the Securities Purchase Agreement by and among the parties
hereto of even date herewith (the "Securities
Purchase Agreement"),
the
Company has agreed, upon the terms and subject to the conditions of the
Securities Purchase Agreement, to issue and sell to the Buyers an aggregate
of
(i) $15 million in principal amount of convertible notes (the "Notes")
which
will be convertible into ADRs (as defined hereinafter) (the "Conversion
Shares"),
in
accordance with the terms of the Notes and (ii) warrants (the "Warrants")
which
will be exercisable to purchase ADRs (as exercised, the "Warrant
Shares").
B. To
induce
the Buyers to execute and deliver the Securities Purchase Agreement, the
Company
has agreed to provide certain registration rights under the Securities Act
of
1933, as amended, and the rules and regulations thereunder, or any similar
successor statute (collectively, the "1933
Act"),
and
applicable state securities laws.
C. To
further induce the Buyers to execute and deliver the Securities Purchase
Agreement, the Company has agreed that in the event that a Registration Event
(as defined in the Warrants) occurs, the Company shall, at the request of
the
Required Holders (as defined below), register (a "Subsequent
Registration")
the
Warrant Shares underlying any outstanding Warrants.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and each of the Buyers hereby
agree
as follows:
1. Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
a. "ADRs"
means
the American Depositary Receipts of the Company evidencing the American
Depositary Shares of the Company which each represent ten (10) ordinary shares
of the Company ("Ordinary
Shares").
b. "Business
Day"
means
any day other than Saturday, Sunday or any other day on which commercial
banks
in The City of New York, State of New York, U.S. A. or Perth, Australia are
authorized or required by law to remain closed.
c. "Closing
Date"
shall
have the meaning set forth in the Securities Purchase Agreement.
d. "Effective
Date"
means,
with respect to the Initial Registration Statement or a Subsequent Registration
Statement, the date such Registration Statement has been declared effective
by
the SEC.
e. "Effectiveness
Deadline"
means
the Initial Effectiveness Deadline (as defined below) and the Subsequent
Effectiveness Deadline (as defined below), as applicable.
f. "Initial Effectiveness
Deadline"
means
the date which is 180 days after the date of this Agreement.
g. "Initial Registrable
Securities"
means
(i) the Conversion Shares, (ii) the Warrant Shares, (iii) any Interest
Shares (as defined in the Notes) issued or issuable under the Notes and
(iv) any shares of capital stock issued or issuable with respect to
the
Conversion Shares, the Interest Shares, the Warrant Shares, the Notes and
the
Warrants, as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard to any limitations
on
conversions of the Notes or exercises of the Warrants.
h. "Initial Required
Registration Amount"
means
(i) 130% of the number of Conversion Shares issued and issuable as of the
Trading Day immediately preceding the applicable date of determination, (ii)
130% of the number of Warrant Shares issued and issuable pursuant to the
Warrants as of the Trading Day immediately preceding the applicable date
of
determination, in each case subject to adjustment as provided in Section
2(f)
and (iii) 100% of the Interest Shares paid by the Company.
i. "Investor"
means a
Buyer, any transferee or assignee thereof to whom a Buyer assigns its rights
under this Agreement and who agrees to become bound by the provisions of
this
Agreement in accordance with Section 9 and any transferee or assignee thereof
to
whom a transferee or assignee assigns its rights under this Agreement and
who
agrees to become bound by the provisions of this Agreement in accordance
with
Section 9.
j. "Person"
means
an individual, a limited liability company, a partnership, a joint venture,
a
corporation, a trust, an unincorporated organization and a government or
any
department or agency thereof.
k. "register,"
"registered,"
and
"registration"
refer
to a registration effected by preparing and filing one or more Registration
Statements in compliance with the 1933 Act and pursuant to Rule 415 and the
declaration or ordering of effectiveness of such Registration Statement(s)
by
the SEC.
l. "Registrable
Securities"
means
the Initial Registrable Securities and the Subsequent Registrable
Securities.
m. "Registration
Statement"
means a
registration statement or registration statements of the Company filed under
the
1933 Act covering the Registrable Securities.
n. "Required
Holders"
means
the holders of at least a majority of the Registrable Securities.
o. "Required
Registration Amount"
means
with respect to an Initial Registration Statement, the Initial Required
Registration Amount, and, with respect to a Subsequent Registration Statement,
the Subsequent Required Registration Amount.
p. "Rule
415"
means
Rule 415 under the 1933 Act or any successor rule providing for offering
securities on a continuous or delayed basis.
q. "Subsequent
Filing Deadline"
means
30 days after the date of receipt by the Company of a Subsequent Registration
Request.
r. "Subsequent
Effectiveness Deadline"
means
120 days after the date of receipt by the Company of a Subsequent Registration
Request.
s. "Subsequent
Registrable Securities"
means,
after the second anniversary of the Issuance Date, the Warrant Shares issued
and
issuable in connection with the Warrants, provided that there shall have
occurred a Registration Event.
t. “Subsequent
Registration Request”
means a
request to the Company from a Holder of Warrants for a Subsequent Registration
of Subsequent Registrable Securities, which Subsequent Registration Request
has
been sent to and received by the Company within 30 days of the Registration
Event to which it relates.
u. "Subsequent
Registration Statement"
means a
registration statement or registration statements of the Company filed under
the
1933 Act covering any Subsequent Registrable Securities.
v. "Subsequent
Required Registration Amount"
means
130% of the number of Warrant Shares issued and issuable pursuant to the
Warrant
as of the Trading Day immediately preceding the applicable date of determination
which have not previously been sold pursuant to an effective registration
statement, without restriction pursuant to Rule 144(k) or on the ASX, subject
to
adjustment as provided in Section 2(f).
w. "SEC"
means
the United States Securities and Exchange Commission.
x. "Trading
Day"
means
any day on which the ADRs are traded on the Nasdaq National Market, or, if
the
Nasdaq National Market is not the principal trading market for the ADRs,
then on
the principal securities exchange or securities market on which the ADRs
are
then traded; provided that "Trading Day" shall not include any day on which
the
ADRs are scheduled to trade on such exchange or market for less than 4.5
hours
or any day that the ADRs are suspended from trading during the final hour
of
trading on such exchange or market (or if such exchange or market does not
designate in advance the closing time of trading on such exchange or market,
then during the hour ending at 4:00:00 p.m., New York Time).
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Securities Purchase Agreement. In the event that
the
Company’s Board of Directors should determine that the Company shall transform
itself (whether by re-incorporation in the United States or otherwise) from
a
foreign private issuer (as defined in the Securities Act of 1933, as amended)
,
all references to ADRs shall be deemed references to the securities that
are
substituted for the ADRs with equitable adjustment of the provisions of this
Agreement for such substituted securities.
2. Registration.
a. Initial
Mandatory Registration.
The
Company shall prepare, and, as soon as practicable, file with the SEC the
Initial Registration Statement on Form F-3 or Form S-3 covering the resale
of
all of the Initial Registrable Securities. In the event that Form F-3 or
Form
S-3 is unavailable for such a registration, the Company shall use Form F-1
or
Form S-1, as applicable, subject to the provisions of Section 2(e). The Initial
Registration Statement prepared pursuant hereto shall register for resale
at
least the number of ADRs equal to the Initial Required Registration Amount
as of
the date the Initial Registration Statement is initially filed with the SEC.
The
Initial Registration Statement shall contain (except if otherwise directed
by
the Required Holders) the "Selling
Shareholders"
and
"Plan
of Distribution"
sections in substantially the form attached hereto as Exhibit
B,
with
such changes as may be appropriate to reflect the inclusion of other permissible
securities of the Company and other changes which may be necessary or
appropriate. The Company shall use its reasonable best efforts to have the
Initial Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the Initial Effectiveness
Deadline.
b. Subsequent
Mandatory Registrations.
The
Company shall, after the occurrence of a Registration Event and upon receipt
of
a Subsequent Registration Request, prepare, and, as soon as practicable but
in
no event later that the Subsequent Filing Deadline, file with the SEC a
Subsequent Registration Statement on Form SB-2 or Form S-3 covering the resale
of all of the Subsequent Registrable Securities. In the event that Form SB-2
or
Form S-3 is unavailable for such a registration, the Company shall use such
other form as is available for such a registration on another appropriate
form
reasonably acceptable to the Required Holders, subject to the provisions
of
Section 2(e). Each Subsequent Registration Statement prepared pursuant hereto
shall register for resale at least that number of ADRs equal to the Subsequent
Required Registration Amount as of the date such Registration Statement is
initially filed with the SEC. Each Subsequent Registration Statement shall
contain (except if otherwise directed by the Required Holders) the "Selling
Shareholders" and "Plan of Distribution" sections in substantially the form
attached hereto as Exhibit B, with such changes as may be necessary or
appropriate. The Company shall use its reasonable best efforts to have each
Subsequent Registration Statement declared effective by the SEC as soon as
practicable, but in no event later than the applicable Subsequent Effectiveness
Deadline.
c. Allocation
of Registrable Securities.
The
initial number of Registrable Securities included in any Registration Statement
and any increase in the number of Registrable Securities included therein
shall
be allocated pro rata among the Investors based on the number of Registrable
Securities held by each Investor at the time the Registration Statement covering
such initial number of Registrable Securities or increase thereof is declared
effective by the SEC. In the event that an Investor sells or otherwise transfers
any of such Investor's Registrable Securities, each transferee shall be
allocated a pro rata portion of the then remaining number of Registrable
Securities included in such Registration Statement for such transferor. Any
ADRs
included in a Registration Statement and which remain allocated to any Person
which ceases to hold any Registrable Securities covered by such Registration
Statement shall be allocated to the remaining Investors, pro rata based on
the
number of Registrable Securities then held by such Investors which are covered
by such Registration Statement. Other than as permitted by Section 4(k) of
the
Securities Purchase Agreement, in no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Required Holders.
d. Legal
Counsel.
Subject
to Section 5 hereof, the Required Holders shall have the right to select
one
legal counsel to review and oversee any registration pursuant to this Section
2,
which shall be Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as is
thereafter designated in writing by the Required Holders prior to the initiation
of such other legal counsel's review and oversight of any registration
("Legal
Counsel").
The
Company and Legal Counsel shall reasonably cooperate with each other in
performing the Company's obligations under this Agreement.
e. Ineligibility
for Form F-3 or Form S-3.
In the
event that Form F-3 or Form S-3 is not available for the registration of
the
resale of Registrable Securities hereunder, the Company shall (i) register
the
resale of the Registrable Securities on another appropriate form reasonably
acceptable to the Required Holders and (ii) undertake to register the
Registrable Securities on Form F-3 or Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of
the
Registration Statement then in effect until such time as a Registration
Statement on Form F-3 or Form S-3 covering the Registrable Securities has
been
declared effective by the SEC.
f. Sufficient
Number of ADRs Registered.
In the
event the number of ADRs available under a Registration Statement filed pursuant
to Section 2(a) is insufficient to cover all of the Registrable Securities
required to be covered by such Registration Statement or an Investor's allocated
portion of the Registrable Securities pursuant to Section 2(c), the Company
shall amend the applicable Registration Statement, or file a new Registration
Statement (on the short form available therefor, if applicable), or both,
so as
to cover at least the Required Registration Amount, but as of the Trading
Day
immediately preceding the date of the filing of such amendment or new
Registration Statement, in each case, as soon as practicable, but in any
event
not later than fifteen (15) Business Days after the necessity therefor arises.
The Company shall use its best efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable following
the
filing thereof. For purposes of the foregoing provision, the number of ADRs
available under a Registration Statement shall be deemed "insufficient to
cover
all of the Registrable Securities" if at any time the number of ADRs available
for resale under the Registration Statement is less than the product determined
by multiplying (i) the Required Registration Amount by (ii) 0.90. The
calculation set forth in the foregoing sentence shall be made without regard
to
any limitations on the conversion of the Notes or the exercise of the Warrants
and such calculation shall assume that the Notes and the Warrants are then
convertible into ADRs and are issuable at the then prevailing Interest
Conversion Price (as defined in the Notes), Conversion Rate (as defined in
the
Notes) or Exercise Price (as defined in the Warrants), as
applicable.
g. Effect
of Failure to File and Obtain and Maintain Effectiveness of Registration
Statement.
If (i)
a Registration Statement covering all of the Registrable Securities required
to
be covered thereby and required to be filed by the Company pursuant to this
Agreement is not (A) with respect to a Subsequent Registration Statement,
filed
with the SEC on or before the Subsequent Filing Deadline (a "Filing
Failure")
or (B)
declared effective by the SEC on or before the respective Effectiveness Deadline
(an "Effectiveness
Failure")
or
(ii) on any day after the Effective Date (A) sales of all of the Registrable
Securities required to be included on such Registration Statement cannot
be made
(other than during an Allowable Grace Period (as defined in Section 3(r))
pursuant to such Registration Statement (including, without limitation, because
of a failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of ADRs), (B) the Registrable
Securities are not listed or included for quotation on an Eligible Market
(as
defined in the Notes) or trading of the ADRs is suspended or halted thereon
(other than during an Allowable Trading Grace Period) (each, a "Maintenance
Failure"),
then,
as partial relief for the damages to any holder by reason of any such delay
in
or reduction of its ability to sell the ADRs (which remedy shall not be
exclusive of any other remedies available at law or in equity), the Company
shall pay to each holder of Registrable Securities relating to such Registration
Statement an amount in cash equal to one and one half percent (1.5%) of the
aggregate Purchase Price of such Investor's Registrable Securities included
in
such Registration Statement on each of the following dates: (A) every thirtieth
day (pro rated for periods totaling less than thirty days) after a Filing
Failure until such Filing Failure is cured; (B) every thirtieth day (pro
rated
for periods totaling less than thirty days) from the date of an Effectiveness
Failure until such Effectiveness Failure is cured and (C) every thirtieth
day
(pro rated for periods totaling less than thirty days) from the date of a
Maintenance Failure until such Maintenance Failure is cured. The payments
to
which a holder shall be entitled pursuant to this Section 2(g) are referred
to
herein as "Registration
Delay Payments."
Registration Delay Payments shall be paid on the earlier of (I) the last
day of
the calendar month during which such Registration Delay Payments are incurred
and (II) the fifth Business Day after the event or failure giving rise to
the
Registration Delay Payments is cured. In the event the Company fails to make
Registration Delay Payments in a timely manner, such Registration Delay Payments
shall bear interest at the rate of 1.0% per month (prorated for partial months)
until paid in full.
3. Related
Obligations.
At
such
time as the Company is obligated to file a Registration Statement with the
SEC
pursuant to Section 2(a), 2(b) or 2(f), the Company will use its reasonable
best
efforts to effect the registration of the Registrable Securities consistent
with
the Plan of Distribution and, pursuant thereto, the Company shall have the
following obligations:
a. The
Company shall promptly prepare and file with the SEC a Registration Statement
with respect to the Registrable Securities and use its reasonable best efforts
to cause such Registration Statement relating to the Registrable Securities
to
become effective as soon as practicable after such filing (but in no event
later
than the Effectiveness Deadline). The Company shall keep each Registration
Statement effective pursuant to Rule 415 at all times until the earlier of
(i)
the date as of which the Investors may sell all of the Registrable Securities
covered by such Registration Statement without restriction pursuant to Rule
144(k) (or successor thereto) promulgated under the 1933 Act or (ii) the
date on
which the Investors shall have sold all the Registrable Securities covered
by
such Registration Statement (the "Registration
Period"),
which
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein,
or
necessary to make the statements therein, in the light of the circumstances
in
which they were made, not misleading. The term "best efforts" shall mean,
among
other things, that the Company shall submit to the SEC, within four (4) Business
Days after the later of the date that (i) Company learns that no review of
a
particular Registration Statement will be made by the staff of the SEC or
that
the staff has no further comments on the Registration Statement, as the case
may
be, and (ii) the approval of Legal Counsel pursuant to Section 3(c) (which
approval is immediately sought), a request for acceleration of effectiveness
of
such Registration Statement to a time and date not later than 48 hours after
the
submission of such request.
b. The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may
be
necessary to keep such Registration Statement effective at all times during
the
Registration Period, subject to Allowable Grace Periods, and, during such
period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement. In the case of amendments and supplements to a
Registration Statement which are required to be filed pursuant to this Agreement
(including pursuant to this Section 3(b)) by reason of the Company filing
a
report on Form 10-K or 10-KSB, as applicable, Form 10-Q or 10-QSB, as
applicable, or Form 8-K or any analogous report under the Securities Exchange
Act of 1934, as amended (the "1934
Act"),
the
Company shall have incorporated such report by reference into such Registration
Statement, if applicable, or shall file such amendments or supplements with
the
SEC on the same day on which the 1934 Act report is filed which created the
requirement for the Company to amend or supplement such Registration
Statement.
c. The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least five (5) Business Days prior to its filing
with
the SEC and (ii) all amendments and supplements to all Registration Statements
(except for reports incorporated by reference therein) within a reasonable
number of days prior to their filing with the SEC, and (B) not file any
Registration Statement or amendment or supplement thereto in a form to which
Legal Counsel reasonably objects. The Company shall not submit a request
for
acceleration of the effectiveness of a Registration Statement or any amendment
or supplement thereto without the prior approval of Legal Counsel, which
consent
shall not be unreasonably withheld. The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff
of
the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC,
one
copy of any Registration Statement and any amendment(s) thereto, including
financial statements and schedules, all documents incorporated therein by
reference, if requested by an Investor, and all exhibits and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto.
The
Company shall reasonably cooperate with Legal Counsel in performing the
Company's obligations pursuant to this Section 3.
d. The
Company shall furnish to each Investor whose Registrable Securities are included
in any Registration Statement, without charge, (i) promptly after the same
is
prepared and filed with the SEC, at least one copy of such Registration
Statement and any amendment(s) thereto, including financial statements and
schedules, all documents incorporated therein by reference, if requested
by an
Investor, all exhibits and each preliminary prospectus, (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the prospectus
included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may reasonably request)
and (iii) such other documents, including copies of any preliminary or final
prospectus, as such Investor may reasonably request from time to time in
order
to facilitate the disposition of the Registrable Securities owned by such
Investor.
e. The
Company shall use its reasonable best efforts to (i) register and qualify,
unless an exemption from registration and qualification applies, the resale
by
Investors of the Registrable Securities covered by a Registration Statement
under such other securities or "blue sky" laws of all applicable jurisdictions
in the United States, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall
not be
required in connection therewith or as a condition thereto to (x) qualify
to do
business in any jurisdiction where it would not otherwise be required to
qualify
but for this Section 3(e), (y) subject itself to general taxation in any
such
jurisdiction, or (z) file a general consent to service of process in any
such
jurisdiction. The Company shall promptly notify Legal Counsel and each Investor
who holds Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or qualification
of any of the Registrable Securities for sale under the securities or "blue
sky"
laws of any jurisdiction in the United States or its receipt of actual notice
of
the initiation or threatening of any proceeding for such purpose.
f. The
Company shall notify Legal Counsel and each Investor in writing, of the
happening of any event, as promptly as practicable after becoming aware of
such
event, as a result of which the prospectus included in a Registration Statement,
as then in effect, includes an untrue statement of a material fact or omission
to state a material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that in no event shall such notice contain any
material, nonpublic information), and, subject to Section 3(r), promptly
prepare
a supplement or amendment to such Registration Statement to correct such
untrue
statement or omission, and deliver ten (10) copies of such supplement or
amendment to Legal Counsel and each Investor (or such other number of copies
as
Legal Counsel or such Investor may reasonably request). The Company shall
also
promptly notify Legal Counsel and each Investor in writing, (i) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and when a Registration Statement or any post-effective amendment
has
become effective (notification of such effectiveness shall be delivered to
Legal
Counsel and each Investor by facsimile or e-mail on the same day of such
effectiveness and by overnight mail), (ii) of any request by the SEC for
amendments or supplements to a Registration Statement or related prospectus
or
related information, and (iii) of the Company's reasonable determination
that a
post-effective amendment to a Registration Statement would be
appropriate.
g. The
Company shall use its reasonable best efforts to prevent the issuance of
any
stop order or other suspension of effectiveness of a Registration Statement,
or
the suspension of the qualification of any of the Registrable Securities
for
sale in any jurisdiction and, if such an order or suspension is issued, to
obtain the withdrawal of such order or suspension at the earliest possible
moment and to notify Legal Counsel and each Investor who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
h. If
any
Investor is required under applicable securities law to be described in the
Registration Statement as an underwriter, at the reasonable request of any
Investor, the Company shall furnish to such Investor, on the date of the
effectiveness of the Registration Statement and thereafter from time to time
on
such dates as an Investor may reasonably request (i) a letter, dated such
date,
from the Company's independent certified public accountants in form and
substance as is customarily given by independent certified public accountants
to
underwriters in an underwritten public offering, addressed to the Investors,
and
(ii) an opinion, dated as of such date, of counsel representing the Company
for
purposes of such Registration Statement, in form, scope and substance as
is
customarily given in an underwritten public offering, addressed to the
Investors.
i. The
Company shall make available for inspection by (i) any Investor, (ii) Legal
Counsel and (iii) one firm of accountants or other agents retained by the
Investors (collectively, the "Inspectors"),
all
pertinent financial and other records, and pertinent corporate documents
and
properties of the Company (collectively, the "Records"),
as
shall be necessary and reasonably requested by each Inspector, and cause
the
Company's officers, directors and employees, counsel and the Company's
independent certified public accountants to supply all information which
may be
necessary and any Inspector may reasonably request; provided, however, that
each
Inspector shall agree to hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, and such inspector executes
any
non-disclosure, non-use or similar document which may be reasonably required
by
Company, its independent certified public accountants or its counsel (and
upon
execution of which the Company shall not be deemed to be in violation of
its
agreement not to provide to such Investor any material, nonpublic information
or
to publicly disclose such information) unless (a) the disclosure of such
Records
is necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of
such
Records is ordered pursuant to a final, non-appealable subpoena or order
from a
court or government body of competent jurisdiction, or (c) the information
in
such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement of which the Inspector
has knowledge. Each Investor agrees that it shall, upon learning that disclosure
of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and
allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein (or in any other confidentiality agreement between
the Company and any Investor) shall be deemed to limit the Investors' ability
to
sell Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations.
j. The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws,
(ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release
of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available
to the
public other than by disclosure in violation of this Agreement or any other
agreement of which the Company has knowledge. The Company agrees that it
shall,
upon learning that disclosure of such information concerning an Investor
is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt written notice to such Investor and allow
such
Investor, at the Investor's expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, such
information.
k. The
Company shall use its reasonable best efforts either to (i) 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 (ii) secure
designation and quotation of all the Registrable Securities covered by the
Registration Statement on the Nasdaq National Market, or (iii) if, despite
the
Company's best efforts to satisfy the preceding clause (i) or (ii), the Company
is unsuccessful in satisfying the preceding clause (i) or (ii), to secure
the
inclusion for quotation on The Nasdaq SmallCap Market for such Registrable
Securities and, without limiting the generality of the foregoing, to use
its
best efforts to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. ("NASD")
as
such with respect to such Registrable Securities. The Company shall pay all
fees
and expenses in connection with satisfying its obligation under this Section
3(k).
l. The
Company shall cooperate with the Investors who hold Registrable Securities
being
offered and, to the extent applicable, facilitate the timely preparation
and
delivery of certificates (not bearing any restrictive legend) representing
the
Registrable Securities to be offered pursuant to a Registration Statement
and
enable such certificates to be in such denominations or amounts, as the case
may
be, as the Investors may reasonably request and registered in such names
as the
Investors may request.
m. If
reasonably requested by an Investor, the Company shall as soon as reasonably
practicable (i) incorporate in a prospectus supplement or post-effective
amendment such information as an Investor reasonably requests to be included
therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being offered or sold, the purchase price being paid
therefor and any other terms of the offering of the Registrable Securities
to be
sold in such offering; and (ii) make all required filings of such prospectus
supplement or post-effective amendment after being notified of the matters
to be
incorporated in such prospectus supplement or post-effective amendment if
reasonably requested by an Investor holding any Registrable
Securities.
n. The
Company shall use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.
o. The
Company shall make generally available to its security holders as soon as
practical, but not later than one hundred eighty (180) days after the close
of
the period covered thereby, an earnings statement (in form complying with
the
provisions of Rule 158 under the 0000 Xxx) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
p. The
Company shall otherwise use its best efforts to comply with all applicable
rules
and regulations of the SEC in connection with any registration
hereunder.
q. Within
three (3) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver, and
shall
cause legal counsel for the Company to deliver, to the transfer agent for
such
Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) confirmation that
such
Registration Statement has been declared effective by the SEC substantially
in
the form attached hereto as Exhibit
A.
r. Notwithstanding
anything to the contrary herein, the Company may delay, including by delaying
the filing of a Registration Statement, the disclosure of material, non-public
information concerning the Company the disclosure of which at the time is
not,
in the good faith opinion of the Board of Directors of the Company and its
counsel, in the best interest of the Company and, in the opinion of counsel
to
the Company, otherwise required (a "Grace
Period")
and,
as applicable, suspend sales of Registered Securities under an effective
Registration Statement; provided, that the Company shall promptly (i) notify
the
Investors in writing of the existence of material, non-public information
giving
rise to a Grace Period (provided that in each notice the Company will not
disclose the content of such material, non-public information to the Investors)
and the date on which the Grace Period will begin, and (ii) notify the Investors
in writing of the date on which the Grace Period ends; and, provided further,
that no Grace Period shall exceed 15 consecutive days and during any 365
day
period such Grace Periods shall not exceed an aggregate of 45 days and the
first
day of any Grace Period must be at least 2 Trading Days after the last day
of
any prior Grace Period (an "Allowable
Grace Period").
For
purposes of determining the length of a Grace Period above, the Grace Period
shall begin on and include the date the holders receive the notice referred
to
in clause (i) and shall end on and include the later of the date the holders
receive the notice referred to in clause (ii) and the date referred to in
such
notice. The provisions of Sections 2(f) and 3(e) hereof shall not be applicable
during the period of any Allowable Grace Period. Upon expiration of the Grace
Period, the Company shall again be bound by the first sentence of Section
3(f)
with respect to the information giving rise thereto unless such material
non-public information is no longer applicable. Notwithstanding anything
to the
contrary, the Company shall cause its transfer agent to deliver unlegended
certificates for ADRs to a transferee of an Investor in accordance with the
terms of the Securities Purchase Agreement in connection with any sale of
Registrable Securities with respect to which an Investor has entered into
a
contract for sale, and delivered a copy of the prospectus included as part
of
the applicable Registration Statement, prior to the Investor's receipt of
the
notice of a Grace Period and for which the Investor has not yet settled.
Notwithstanding
anything to the contrary herein, the Company may suspend trading of its equity
securities on the applicable Eligible Market on which its equity securities
are
then trading, due to the existence of material, non-public information
concerning the Company the disclosure of which at the time is not, in the
good
faith opinion of the Board of Directors of the Company and its counsel, in
the
best interest of the Company (a "Trading
Grace Period");
provided, that the Company shall promptly (i) notify the Investors in writing
of
the existence of such suspension (provided that in each notice the Company
will
not disclose the content of any material, non-public information to the
Investors) and the date on which the Trading Grace Period will begin, and
(ii)
notify the Investors in writing of the date on which the Trading Grace Period
ends; and, provided further, that no Trading Grace Period shall exceed 5
consecutive days and during any 365 day period such Trading Grace Periods
shall
not exceed an aggregate of 15 days and the first day of any Trading Grace
Period
must be at least 2 Trading Days after the last day of any prior Trading Grace
Period (an "Allowable
Grace Trading Period").
For
purposes of determining the length of a Trading Grace Period above, the Trading
Grace Period shall begin on and include the date the holders receive the
notice
referred to in clause (i) and shall end on and include the later of the date
the
holders receive the notice referred to in clause (ii) and the date referred
to
in such notice. The provisions of Sections 2(f) hereof shall not be applicable
during the period of any Allowable Trading Grace Period.
4. Obligations
of the Investors.
a. At
least
five (5) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing
of the
information the Company requires from each such Investor if such Investor
elects
to have any of such Investor's Registrable Securities included in such
Registration Statement. It shall be a condition precedent to the obligations
of
the Company to complete the registration pursuant to this Agreement with
respect
to the Registrable Securities of a particular Investor that such Investor
shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it, as shall be reasonably required to effect and maintain
the effectiveness of the registration of such Registrable Securities and
shall
execute such documents in connection with such registration as the Company
may
reasonably request.
b. Each
Investor, by such Investor's acceptance of the Registrable Securities, agrees
to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder,
unless
such Investor has notified the Company in writing of such Investor's election
to
exclude all of such Investor's Registrable Securities from such Registration
Statement.
c. Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or the first
sentence of 3(f), such Investor will immediately discontinue disposition
of
Registrable Securities pursuant to any Registration Statement(s) covering
such
Registrable Securities until such Investor's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first
sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall cause
its
transfer agent to deliver unlegended certificates for ADRs to a transferee
of an
Investor in accordance with the terms of the Securities Purchase Agreement
in
connection with any sale of Registrable Securities with respect to which
an
Investor has entered into a contract for sale prior to the Investor's receipt
of
a notice from the Company of the happening of any event of the kind described
in
Section 3(g) or the first sentence of 3(f) and for which the Investor has
not
yet settled.
d. Each
Investor covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it in connection with sales
of
Registrable Securities pursuant to the Registration Statement.
5. Expenses
Of Registration.
All
reasonable expenses, other than underwriting discounts and commissions, incurred
in connection with registrations, filings or qualifications pursuant to Sections
2 and 3, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, and fees and disbursements
of
counsel for the Company shall be paid by the Company. The Company shall also
reimburse Castlerigg Master Investments Ltd. for the fees and disbursements
of
Legal Counsel incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3 of this Agreement which amount
shall
be limited to $10,000 in the aggregate.
6. Indemnification.
In
the
event any Registrable Securities are included in a Registration Statement
under
this Agreement:
a. To
the
fullest extent permitted by law, the Company will, and hereby does, indemnify,
hold harmless and defend each Investor, the directors, officers, partners,
members, employees, agents, representatives of, and each Person, if any,
who
controls any Investor within the meaning of the 1933 Act or the 1934 Act
(each,
an "Indemnified
Person"),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys' fees, amounts paid in settlement or
expenses, joint or several, (collectively, "Claims")
incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by
or
before any court or governmental, administrative or other regulatory agency,
body or the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto ("Indemnified
Damages"),
to
which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of
or are based upon: (i) any untrue statement or alleged untrue statement of
a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction
in
which Registrable Securities are offered ("Blue
Sky Filing"),
or
the omission or alleged omission to state a material fact required to be
stated
therein or necessary to make the statements therein not misleading, (ii)
any
untrue statement or alleged untrue statement of a material fact contained
in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented,
if
the Company files any amendment thereof or supplement thereto with the SEC)
or
the omission or alleged omission to state therein any material fact necessary
to
make the statements made therein, in light of the circumstances under which
the
statements therein were made, not misleading, (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to a Registration Statement or (iv) any material violation
of this Agreement (the matters in the foregoing clauses (i) through (iv)
being,
collectively, "Violations").
Subject to Section 6(c), the Company shall reimburse the Indemnified Persons,
promptly as such expenses are incurred and are due and payable, for any legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising
out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Indemnified
Person
for such Indemnified Person expressly for use in connection with the preparation
of the Registration Statement or any such amendment thereof or supplement
thereto, if such prospectus was timely made available by the Company pursuant
to
Section 3(d); (ii) with respect to any preliminary prospectus, shall not
inure
to the benefit of any such person from whom the person asserting any such
Claim
purchased the Registrable Securities that are the subject thereof (or to
the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(d), and the
Indemnified Person was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to a Violation and such Indemnified
Person, notwithstanding such advice, used it or failed to deliver the correct
prospectus as required by the 1933 Act and such correct prospectus was timely
made available pursuant to Section 3(d); (iii) shall not be available to
the
extent such Claim is based on a failure of the Investor to deliver or to
cause
to be delivered the prospectus made available by the Company, including a
corrected prospectus, if such prospectus or corrected prospectus was timely
made
available by the Company pursuant to Section 3(d); and (iv) shall not apply
to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed. Such indemnity shall remain in full force
and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9.
b. In
connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is
set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement and each Person, if any, who controls
the
Company within the meaning of the 1933 Act or the 1934 Act (each, an
"Indemnified
Party"),
against any Claim or Indemnified Damages to which any of them may become
subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim
or
Indemnified Damages arise out of or are based upon any Violation, in each
case
to the extent, and only to the extent, that such Violation occurs in reliance
upon and in conformity with written information furnished to the Company
by such
Investor expressly for use in connection with such Registration Statement;
and,
subject to Section 6(c), such Investor will reimburse any legal or other
expenses reasonably incurred by an Indemnified Party in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written
consent of such Investor, which consent shall not be unreasonably withheld
or
delayed; provided, further, however, that the Investor shall be liable under
this Section 6(b) for only that amount of a Claim or Indemnified Damages
as does
not exceed the net proceeds to such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or
on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any preliminary prospectus
shall
not inure to the benefit of any Indemnified Party if the untrue statement
or
omission of material fact contained in the preliminary prospectus was corrected
on a timely basis in the prospectus, as then amended or
supplemented.
c. Promptly
after receipt by an Indemnified Person or Indemnified Party under this Section
6
of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving a Claim, such Indemnified Person
or
Indemnified Party shall, if a Claim in respect thereof is to be made against
any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying party similarly noticed, to
assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the
case may be; provided, however, that an Indemnified Person or Indemnified
Party
shall have the right to retain its own counsel with the fees and expenses
of not
more than one counsel for such Indemnified Person or Indemnified Party to
be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of
the
Indemnified Person or Indemnified Party and the indemnifying party would
be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by
such
counsel in such proceeding. In the case of an Indemnified Person, legal counsel
referred to in the immediately preceding sentence shall be selected by the
Required Holders to which the Claim relates. The Indemnified Party or
Indemnified Person shall cooperate reasonably with the indemnifying party
in
connection with any negotiation or defense of any such action or Claim by
the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to
the
status of the defense or any settlement negotiations with respect thereto.
No
indemnifying party shall be liable for any settlement of any action, claim
or
proceeding effected without its prior written consent, provided, however,
that
the indemnifying party shall not unreasonably withhold, delay or condition
its
consent. No indemnifying party shall, without the prior written consent of
the
Indemnified Party or Indemnified Person, consent to entry of any judgment
or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation. Following indemnification as provided
for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties,
firms
or corporations relating to the matter for which indemnification has been
made.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve
such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party
is
prejudiced in its ability to defend such action.
d. The
indemnification required by this Section 6 shall be made by periodic payments
of
the amount thereof during the course of the investigation or defense, as
and
when Indemnified Damages are incurred and applicable bills are
received.
e. The
indemnity agreements contained herein shall be in addition to (i) any cause
of
action or similar right of the Indemnified Party or Indemnified Person against
the indemnifying party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to the law.
f. Nothing
herein shall the right of any party to this Agreement to bring a contractual
claim against any other party to this Agreement for a breach of this
Agreement.
7. Contribution.
To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with
respect
to any amounts for which it would otherwise be liable under Section 6 to
the
fullest extent permitted by law; provided, however, that: (i) no person involved
in the sale of Registrable Securities which person is guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) in
connection with such sale shall be entitled to contribution from any person
involved in such sale of Registrable Securities who was not guilty of fraudulent
misrepresentation; and (ii) contribution by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such
seller
from the sale of such Registrable Securities pursuant to such Registration
Statement.
8. Reports
Under The 1934 Act.
Until
the
date on which (A) the Investors shall have sold all the Conversion Shares
and
the Warrant Shares and (B) none of the Notes or Warrants is outstanding,
with a
view to making available to the Investors the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that
may
at any time permit the Investors to sell securities of the Company to the
public
without registration ("Rule
144"),
the
Company agrees to:
a. make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
b. file
with
the SEC in a timely manner all reports and other documents required of the
Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements (it being understood that nothing herein shall
limit the Company's obligations under Section 4(c) of the Securities Purchase
Agreement) and the filing of such reports and other documents is required
for
the applicable provisions of Rule 144; and
c. furnish
to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company, if true, that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the
1934
Act, (ii) a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, to the extent
not
available on XXXXX, and (iii) such other information as may be reasonably
requested to permit the Investors to sell such securities pursuant to Rule
144
without registration.
9. Assignment
of Registration Rights.
The
rights under this Agreement shall be automatically assignable by the Investors
to any transferee of Registrable Securities if: (i) the Investor agrees in
writing with the transferee or assignee to assign such rights, and a copy
of
such agreement is furnished to the Company within three (3) Business Days
after
such assignment; (ii) the Company is, within three (3) Business Days after
such
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect
to
which such registration rights are being transferred or assigned; (iii)
immediately following such transfer or assignment the further disposition
of
such securities by the transferee or assignee is restricted under the 1933
Act
and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence
the
transferee or assignee agrees in writing with the Company to be bound by
all of
the provisions contained herein; and (v) such transfer shall have been made
in
accordance with the applicable requirements of the Securities Purchase
Agreement.
10. Amendment
of Registration Rights.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders. Any amendment or waiver effected in accordance with this Section
10
shall be binding upon each Investor and the Company. No such amendment shall
be
effective to the extent that it applies to less than all of the holders of
the
Registrable Securities. No consideration shall be offered or paid to any
Person
to amend or consent to a waiver or modification of any provision of any of
this
Agreement unless the same consideration also is offered to all of the parties
to
this Agreement.
11. Miscellaneous.
a. A
Person
is deemed to be a holder of Registrable Securities whenever such Person owns
or
is deemed to own of record such Registrable Securities. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the
basis
of instructions, notice or election received from the such record owner of
such
Registrable Securities.
b. Any
notices, consents, waivers or other communications required or permitted
to be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party);
or (iii) one Business Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive
the
same. The addresses and facsimile numbers for such communications shall
be:
If
to the
Company:
pSivida
Limited.
Xxxxx
00,
XXX Xxxxxx
00
Xxx
Xxxxxxxxx, Xxxxx
XX
0000
Xxxxxxxxx
Telephone: 00
0 0000
0000
Facsimile: 61
8 9226
5499
Attention: Xxxxx
Xxxxx, Managing Director
With
a
copy (which shall not constitute notice) to:
Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
X.X. 00000
X.X.X.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxx
Xxxxxxx, Esq.
Xxxxx Xxxxxxx, Esq.
If
to
Legal Counsel:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Attention: Xxxxxxx
Xxxxx, Esq.
If
to a
Buyer, to its address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer's representatives as set forth
on the
Schedule of Buyers, or to such other address and/or facsimile number and/or
to
the attention of such other person as the recipient party has specified by
written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by
the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the
first
page of such transmission or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. The
Company hereby irrevocably appoints National Corporate Research Ltd., 000
Xxxx
00xx
Xxxxxx,
Xxxxx 000, Xxx Xxxx, X.X. 00000 ("NCR") as its agent for the receipt of service
of process in the United States. The Company agrees that any document may
be
effectively served on it in connection with any action, suit or proceeding
in
the United States by service on its agents. The Buyers consent and agree
that
the Company may, in its reasonable discretion, irrevocably appoint a substitute
agent for the receipt of service of process located within the Untied States,
and that upon such appointment, the appointment of NCR may be
revoked.
(1)
Any document shall be deemed to have been duly served if marked for the
attention of the agent at its address (as set forth in Section 9(f) of the
Securities Purchase Agreement) or such other address in the United States
as may
be notified to the party wishing to serve the document and (a) left at the
specified address if its receipt is acknowledged in writing; or (b) sent
to the
specified address by post, registered mail return receipt requested. In the
case
of (a), the document will be deemed to have been duly served when it is left
and
signed for. In the case of (b), the document shall be deemed to have been
duly
served when received and acknowledged.
(2)
If the Company's agent at any time ceases for any reason to act as such,
the
Company shall appoint a replacement agent having an address for service in
the
United States and shall notify each Buyer of the name and address of the
replacement agent. Failing such appointment and notification, the Buyer shall
be
entitled by notice to the Company to appoint a replacement agent to act on
the
Company's behalf. The provisions of this Section 11(c) applying to service
on an
agent apply equally to service on a replacement agent.
d. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate
as a
waiver thereof.
e. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court,
that
such suit, action or proceeding is brought in an inconvenient forum or that
the
venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to
such
party at the address for such notices to it under this Agreement and agrees
that
such service shall constitute good and sufficient service of process and
notice
thereof. Nothing contained herein shall be deemed to limit in any way any
right
to serve process in any manner permitted by law. If any provision of this
Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
f. This
Agreement and the other Transaction Documents (as defined in the Securities
Purchase Agreement) constitute the entire agreement among the parties hereto
with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set
forth
or referred to herein and therein. This Agreement and the other Transaction
Documents supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
g. Subject
to the requirements of Section 9, this Agreement shall inure to the benefit
of
and be binding upon the permitted successors and assigns of each of the parties
hereto.
h. The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
i. This
Agreement may be executed in identical counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by facsimile transmission of a copy of this Agreement bearing the
signature of the party so delivering this Agreement.
j. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
k. All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders, determined as if all of the Notes held by Investors
then outstanding have been converted into Registrable Securities and all
Warrants then outstanding have been exercised for Registrable Securities
without
regard to any limitations on conversion of the Notes or on exercises of the
Warrants.
l. The
language used in this Agreement will be deemed to be the language chosen
by the
parties to express their mutual intent and no rules of strict construction
will
be applied against any party.
m. This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may
any
provision hereof be enforced by, any other Person.
n. The
obligations of each Buyer hereunder are several and not joint with the
obligations of any other Buyer, and no provision of this Agreement is intended
to confer any obligations on any Buyer vis a vis any other Buyer. Nothing
contained herein, and no action taken by any Buyer pursuant hereto, shall
be
deemed to constitute the Buyers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Buyers
are
in any way acting in concert or as a group with respect to such obligations
or
the transactions contemplated herein.
*
* * * *
*
IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Registration Rights Agreement to be duly executed as of the date first written
above.
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COMPANY:
PSIVIDA LIMITED
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| By: | ||
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Name:
Xxxxx Xxxxx
Title: Managing
Director
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IN
WITNESS WHEREOF,
each
Buyer and the Company have caused their respective signature page to this
Registration Rights Agreement to be duly executed as of the date first written
above.
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BUYERS:
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| By: | ||
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Name:
Title:
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