REGISTRATION RIGHTS AGREEMENT
EXHIBIT
“G”
THIS REGISTRATION RIGHTS AGREEMENT
(the “Agreement”)
is made as of [______ __, 2009] by and among TRESTLE
HOLDINGS, INC. (to be renamed
MOQIZONE
HOLDING CORPORATION), a Delaware corporation (the “Company”), and the Persons who
have executed the counterpart signature pages of this Agreement as an Investor
(collectively, the “Investor”).
WITNESSETH:
WHEREAS, the Investors are
holders of units of securities consisting of (a) 8% exchangeable notes due March
31, 2011 (the “Notes”)
of MoqiZone Holdings Limited, a Hong Kong corporation (“MoqiZone”), and (b) three year
callable Class A Warrants and three year non-callable Class B Warrants of the
Company, issued pursuant to the terms of a securities purchase agreement, dated
as of the date hereof, between the Company, certain of its Subsidiaries, the
Investor and other Persons (the “Securities Purchase
Agreement”);
WHEREAS, upon consummation of the
“Trestle Reverse Split”
(as defined in the Securities Purchase Agreement) and the filing of an amended
and restated certificate of incorporation of Trestle with the Secretary of State
of the State of Delaware, all of the Notes shall, by their terms, be deemed to
be cancelled and exchanged for a like stated amount of Series A convertible
preferred stock, $0.01 par value per share, of Trestle (the “Series A Preferred Stock”).
The Series A Preferred Stock is convertible at any time after issuance, at the
option of the holder, into shares of Trestle Common Stock, at a conversion price
of $1.80 per share; and
WHEREAS, the Company has
agreed with the Investor to grant certain registration rights with respect to
the “Registrable Securities” (as hereinafter defined);
NOW THEREFORE, in
consideration of the foregoing, the parties agree as follows:
1.
Definitions. All
capitalized terms not otherwise defined in this Agreement shall have the same
meaning as they are defined in the Securities Purchase Agreement. In
addition, as used in this Agreement, the following terms shall have the
following meanings:
“Business Day” - shall mean any
day other than Saturday or Sunday or any other day when Citibank NA, New York,
New York, is not open for business.
“Class A Warrants” shall mean
the three year warrants expiring on May 31, 2012 entitling the Holder to
purchase shares of Common Stock of the Company at an exercise price of $2.50 per
share, and subject to redemption under certain circumstances.
“Class B Warrants” shall mean
the three year warrants expiring on May 31, 2012 entitling the Holder to
purchase shares of Common Stock of the Company at an exercise price of $3.00 per
share.
“Commission” or “SEC” - shall
mean the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Securities Act.
“Common Stock” shall mean the
common stock, $0.001 par value per share of the Company.
“Conversion Shares” shall mean
the shares of Common Stock issuable upon conversion of the Series A Preferred
Stock.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, or any similar federal statute and
the rules and regulations thereunder, all as the same shall be in effect at the
time.
“Holder” shall mean the
Investor and any other holder of outstanding Registrable Securities or anyone
who holds outstanding Registrable Securities to whom the registration rights
conferred by this Agreement have been transferred in compliance with this
Agreement.
“Initiating Holders” shall mean
any Holder or Holders of at least fifty-one percent (51%) of the Registrable
Securities then outstanding.
“Offering” shall mean the
offering of up to $8,000,000 of units of securities of MoqiZone and the Company
consisting of the Notes, the Class A Warrants and the Class B
Warrants.
“Placement Agent Warrants”
shall mean the three year warrants expiring May 31, 2012 issued to
[ ], as placement agent to MoqiZone and the Company, entitling the
Holder to purchase, for $3.00 per share, that number of shares of Common Stock
of the Company equal to 10% of the aggregate number of Conversion Shares and
Warrant Shares issuable to Investors upon completion of the
Offering.
“Register,” “registered” and “registration” shall refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registrable Securities.
“Registrable Securities” shall
mean all of the following to the extent the same have not been sold to the
public: (i) any and all of the Warrant Shares; (ii) any and all of the
Conversion Shares; (iii) any shares of capital stock issued in respect of the
Warrant Shares or Conversion Shares referred to in (i) or (ii) above in any
reorganization; (iv) any shares of capital stock issued in respect of the
Warrant Shares, Conversion Shares or capital stock referred to in (i), (ii) or
(iii) as a result of a stock split, stock dividend, recapitalization or
combination; or (v) any shares of capital stock issued in respect of the Warrant
Shares, Conversion Shares or capital stock referred to in (i), (ii), (iii) or
(iv) as a result of the application of the anti-dilution provisions of the
Series A Preferred Stock or the Warrants. Notwithstanding the foregoing,
Registrable Securities shall not include otherwise Registrable Securities (i)
sold by a person in a transaction in which his rights under this Agreement are
not properly assigned; or (ii) (A) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, or (B)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions, and restrictive legends with respect thereto, if any, are
removed upon the consummation of such sale or (C) the registration rights
associated with such securities have been terminated pursuant to Section 13 of
this Agreement. Notwithstanding the foregoing, the
Registrable Securities shall cease to be Registrable Securities if and to the
extent that the Holder is able to dispose of all of such Holder’s Registrable
Securities (i) in one three-month period pursuant to the provisions of Rule 144,
or (ii) otherwise pursuant to the provisions of Rule
144(i).
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“Rule 144” shall mean Rule 144,
as amended from time to time, under the Securities Act or any successor or
similar rule as may be enacted by the Commission from time to time, but shall
not include Rule 144A.
“Rule 144A” shall mean Rule
144A under the Securities Act or any successor or similar rule as may be enacted
by the Commission from time to time, but shall not include Rule
144.
“Securities Act” shall mean the
Securities Act of 1933, as amended, or any similar federal statute and the rules
and regulations thereunder, all as the same shall be in effect at the
time.
“Warrants” shall mean the
collective reference to the Class A Warrants, the Class B Warrants, and the
Placement Agent Warrants.
“Warrant Shares” shall mean the
collective reference to the shares of Common Stock issuable upon exercise of the
Warrants.
2.
Restrictions
on Transferability. The Registrable Securities shall not be
sold, assigned, transferred or pledged except upon the conditions specified in
this Agreement, which conditions are intended to ensure compliance with the
provisions of the Securities Act. Each Holder will cause any proposed purchaser,
assignee, transferee, or pledgee of the Registrable Securities held by a Holder
to agree to take and hold such securities subject to the provisions and upon the
conditions specified in this Agreement.
3.
Restrictive
Legend. Each certificate representing Registrable Securities
shall (unless otherwise permitted by the provisions of Section 4 below) be
stamped or otherwise imprinted with a legend as provided in Warrant (in addition
to any legend required under applicable state securities laws or
otherwise). Each Holder consents to the Company making a notation on
its records and giving instructions to any transfer agent of the Registrable
Securities in order to implement the restrictions on transfer established in
this Agreement.
4.
Notice of
Proposed Transfer. The Holder of each certificate representing
Registrable Securities, by acceptance thereof, agrees to comply in all respects
with the provisions of this Section 4. Each such Holder agrees not to
make any disposition of all or any portion of any Registrable Securities unless
and until:
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a. There
is in effect a Registration Statement under the Securities Act covering such
proposed disposition and such disposition is made in accordance with such
Registration Statement; or
b. Such
Holder shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and if reasonably requested by the
Company, such Holder shall furnish the Company with an opinion of counsel,
reasonably satisfactory to the Company that such disposition shall not require
registration of such shares under the Securities Act. It is agreed,
however, that no such opinion will be required for Rule 144 or Rule 144A
transactions, except as required by the Company’s transfer agent or in unusual
circumstances.
c. Notwithstanding
the provisions of paragraphs (a) and (b) above, no such Registration Statement
or opinion of counsel shall be necessary for a transfer by a Holder which is a
partnership to a partner of such partnership or a retired partner of such
partnership who retires after the date hereof, or to the estate of any such
partner or retired partner or the transfer by gift, will, or intestate
succession of any partner to his spouse or siblings, lineal descendants or
ancestors of such partner or spouse, provided, however, that such transferee
agrees in writing to be subject to all of the terms hereof to the same extent as
if he were an original Holder hereunder.
5.
Resale
Registration Statement.
Not later than thirty (30) days after
the completion of the Trestle Reverse Split, the Company shall file with the SEC
a Registration Statement (the “Resale Registration
Statement”) registering for resale at prevailing market prices all of the
Registrable Securities. The Company shall use its best efforts to
obtain effectiveness of the Registration Statement with respect to all
Registrable Securities no later than one hundred and fifty (150) days after the
completion of the Trestle Reverse Split, and shall respond to all oral and
written comments from the staff of the SEC.
a. The
parties shall endeavor to take all actions reasonably required to obtain
effectiveness of such Resale Registration Statement or, if and to the extent
such rule becomes available, utilize the re-sale exemptions provided under Rule
144 in order to provide liquidity for these shares.
b. In
the event that the Company shall for any reason fail to:
(i) file
with the SEC the initial Resale Registration Statement within thirty (30) days
after the date of the Series A Preferred Stock Issuance (the “Required Filing Date”);
or
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(ii) cause
such Resale Registration Statement to be declared effective by the SEC within
one hundred and fifty (150) days after the completion of the Offering (the
“Required Effective
Date”), then and in either such event, the Company shall pay to the
Investors a cash amount that shall be equal to two percent (2%) of the aggregate
principal amount of the Notes or aggregate Stated Value of the Series A
Preferred Stock (as applicable) for each month (or part thereof) following the
Required Filing Date that the Resale Registration Statement shall not have been
duly filed with the SEC, and/or for each month (or part thereof) following the
Required Effective Date that the Resale Registration Statement shall not have
been declared effective by the SEC (the “Late Registration
Payment”). Such Late Registration Payment shall be paid to the
Investors within 30 days after the end of each month in which such Late
Registration Payment shall be payable, and until the Company shall have complied
with the provisions of this Section 5b.
Without
limiting any of the other rights of the holders of Registrable Securities
hereunder, the failure by the Company to timely make any or all of such Late
Registration Payments shall constitute an Event of Default under the
Notes.
Notwithstanding
the foregoing, the aggregate amount of the Late Registration Payment shall: (a)
not exceed ten percent (10%) of the aggregate principal amount of the Notes or
aggregate Stated Value of the Series A Preferred Stock (as applicable); and (b)
in the event that the Company complies with Section 5b(i) above, but the
effectiveness of such Resale Registration Statement is delayed beyond such 150
day period solely by reason of comments from the SEC relating to the application
of Rule 415, as promulgated under the Securities Act, then the Late Payment
shall be based on two percent (2%) of the portion of the Investor’s initial
investment in the Notes that corresponds to the number of such Investor’s
Registrable Securities permitted to be registered by the Commission pursuant to
Rule 415.
c. Notwithstanding anything to the
contrary contained in this Section 5, in the event that the SEC, in its
application of Rule 415 as promulgated under the Securities Act, requires any
holder of Registrable Securities to be deemed to be a statutory underwriter,
then and in such event the Company may reduce the number of shares being
registred under such Resale Registration Statement in order to avoid such
statutory underwriter designation (if possible), or, at the request of the
holders of a majority of the Registrable Securities, the Company shall reduce or
withdraw such Resale Registration Statement, as
applicable. In the event the
Commission does not permit the Company to register all of the Registrable
Securities in the initial Registration Statement, the Company shall use its best
efforts to register the Registrable Securities, subject to the terms of this
Section 2, that were not registered in the initial Registration Statement, as
promptly as possible and in a manner permitted by the Commission, whether by
filing a subsequent registration statement as soon as the Commission permits the
Company to do so, providing demand registration rights, or
otherwise.
6.
Piggyback
Registration.
a. If
at any time or from time to time, the Company shall determine to register any of
its securities, for its own account or the account of any of its shareholders,
other than (A) a registration relating solely to employee benefit plans, (B) a
registration relating solely to an SEC Rule 145 transaction, or (C) a
Registration Statement on any form (excluding Form XX-0, X-0, X-0, F-1 or F-3,
or their successor forms) which does not include substantially the same
information as would be required to be included in a Resale Registration
Statement covering the sale of Registrable Securities, the Company
will:
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i. give
to each Holder written notice thereof as soon as practicable prior to filing the
Registration Statement; and
ii. use
its best efforts include in such registration and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within fifteen (15) days after receipt of such written notice
from the Company, by any Holder or Holders, except as set forth in subsection
6(b) below.
b. If
the registration is for a registered public offering involving an underwriting,
the Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event, the right of any Holder
to registration pursuant to Section 6 shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Notwithstanding any other provision of this Section 6, it is
anticipated and, by their execution of this Agreement, each Holder acknowledges,
that the managing underwriter(s):
(i)
may require that each Holder including Registrable Securities in such registered
underwritten public offering agree to “lock up” such Registrable Securities and
refrain from effecting any sale of distribution of such Registrable Securities
for a period of up to one hundred and eighty (180) days following the effective
date of the Registration Statement in respect of such underwritten public
offering by the Company; or
(ii) may
determine that marketing factors require: (A) either a limitation on the number
of shares to be underwritten, in which event, the managing underwriter(s) may
limit the number of Registrable Securities to be included in the registration
and underwriting; or (B) that all of the
Registrable Securities must be excluded entirely from such underwritten public
offering registration for the Company (provided that no shares held by officers
and directors of the Company, other than Registrable Securities that may be
owned by officers and directors, shall be included in the registration and
underwriting).
c. The
Company shall so advise all Holders and the other Holders distributing their
securities through such underwriting pursuant to piggyback registration rights
similar to this Section 6, and the number of shares of Registrable Securities
and other securities that may be included in the registration and underwriting
shall be allocated among all Holders and other holders in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities held by such
Holders and other securities held by other holders at the time of filing the
Registration Statement. If any Holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the managing underwriter. If, by the withdrawal of such Registrable
Securities, a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the limit imposed by the underwriters),
the Company shall offer to all Holders who have included Registrable Securities
in the registration the right to include additional Registrable Securities. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
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7.
Expenses
of Registration. In addition to the fees and expenses
contemplated by Section 8 hereof, all expenses incurred in connection with all
registrations pursuant to Section 5 or Section 6 hereof, including without
limitation all registration, filing and qualification fees, printing expenses,
and all fees and disbursements of counsel for the Company and any reasonable
fees for legal counsel to the Investor and all other Holders of Registrable
Securities (provided that any fees for counsel shall be approved by the Company
in writing in advance if greater then $10,000), and expenses of any special
audits of the Company’s financial statements incidental to or required by such
registration, shall be borne by the Company, except that the Company shall not
be required to pay underwriters’ fees, discounts or commissions relating to
Registrable Securities or fees of a separate legal counsel of a Holder other
than the counsel described above.
8.
Registration
Procedures. In the case of each registration affected by the
Company pursuant to this Agreement, the Company will keep each Holder
participating therein advised in writing as to the initiation of each
registration and as to the completion thereof. In addition, at its expense the
Company will:
a. keep
such registration pursuant to Section 5 continuously effective until all of the
securities covered by such Registration Statement have been sold pursuant to
such Registration Statement or all of the Registrable Securities covered by such
Registration Statement may be sold without registration under Rule 144 of the
Securities Act;
b. promptly
prepare and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act, and to keep such
Registration Statement effective for that period of time specified in Section
9(a) above;
c. furnish
such number of prospectuses and other documents incident thereto as a Holder
from time to time may reasonably request;
d. use
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement, or the lifting of any suspension of
the qualification of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
e. register
or qualify such Registrable Securities for offer and sale under the securities
or blue sky laws of such jurisdictions as any Holder or underwriter reasonably
requires, and keep such registration or qualification effective during the
period set forth in Section 8(a) above;
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f. cause
all Registrable Securities covered by such registrations to be listed or quoted
on each securities exchange, including the NYSE Amex, on which similar
securities issued by the Company are then listed or quoted,
g. enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the holders of a majority of the
Registrable Securities being sold or the underwriters, if any, reasonably,
request in order to expedite or facilitate the disposition of such Registrable
Securities (including, without limitation, effecting a stock split or a
combination of shares);
h. make
available for inspection upon reasonable request by any seller of Registrable
Securities and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement;
i. notify
each Holder, at any time a prospectus covered by such 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 such
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;
j. notify
the Holders of Registrable Securities as promptly as possible (and, in the case
of (i)(A) below, not less than three (3) days prior to such filing, and in the
case of (iii) below, on the same day of receipt by the Company of such notice
from the Commission) and (if requested by any such Person) confirm such notice
in writing no later than two (2) Business Days following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is filed; (B) when the Commission notifies the Company
whether there will be a "review" of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement and (C) with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation or threatening of any Proceedings for that purpose; and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose;
i. take
such other actions as shall be reasonably requested by any
Holder.
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9.
Indemnification.
a. In
the event of a registration of any of the Registrable Securities under the
Securities Act pursuant to Section 5 or Section 6 of this Agreement, the Company
will indemnify and hold harmless each Holder of such Registrable Securities
thereunder and each other person, if any, who controls such Holder within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Holder, underwriter 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 under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, 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, or any violation by the Company of any
rule or regulation promulgated under the Securities Act or any state securities
law applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, and will reimburse each such
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any reasonable legal and any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage or liability arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by an instrument duly executed by such
Holder or underwriter specifically for use therein.
b. Each
Holder will, if Registrable Securities held by or issuable to such Holder are
included in the securities as to which such registration is being effected,
indemnify and hold harmless the Company, each of its directors and officers,
each underwriter, if any, of the Company’s securities covered by such a
Registration Statement, each person who controls the Company and each
underwriter within the meaning of the Securities Act, and each other such
Holder, each of its officers, directors and partners and each person controlling
such Holder, against all claims, losses, expenses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such Registration
Statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, partners, persons or
underwriters for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such Registration Statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein; provided, however, the total amount for
which any Holder, its officers, directors and partners, and any person
controlling such Holder, shall be liable under this Section 9(b) shall not in
any event exceed the aggregate proceeds received by such Holder from the sale of
Registrable Securities sold by such Holder in such
registration.
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c. Each
party entitled to indemnification under this Section 9 (the “Indemnified Party”) shall give
notice to the party required to provide indemnification (the “Indemnifying Party”) promptly
after such Indemnified Party has actual knowledge of any claims as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom, provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party’s expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations hereunder, unless such failure resulted in
actual detriment to the Indemnifying Party. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect of such claim or litigation.
d. Notwithstanding
the foregoing, to the extent that the provisions on indemnification contained in
the underwriting agreements entered into among the selling Holders, the Company
and the underwriters in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall be controlling as to the Registrable Securities included in the
public offering;
e. If
the indemnification provided for in this Section 9 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, liability, claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relevant
fault of the indemnifying party and the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. Notwithstanding the foregoing,
the amount any Holder shall be obligated to contribute pursuant to this Section
9(e) shall be limited to an amount equal to the proceeds to such Holder of the
Restricted Securities sold pursuant to the Registration Statement which gives
rise to such obligation to contribute (less the aggregate amount of any damages
which the Holder has otherwise been required to pay in respect of such loss,
claim, damage, liability or action or any substantially similar loss, claim,
damage, liability or action arising from the sale of such Restricted
Securities).
f. The
indemnification provided by this Section 9 shall be a continuing right to
indemnification and shall survive the registration and sale of any securities by
any Person entitled to indemnification hereunder and the expiration or
termination of this Agreement.
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10. Information
by Holder. The Holder or Holders of Registrable Securities
included in any registration shall promptly furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may reasonably request in writing and as
shall be required in connection with any registration referred to
herein.
11. Rule 144
Reporting. With a view to making available to Holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees at all times to file with the Commission all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
12. Transfer
of Registration Rights. The rights to cause the Company to
register Registrable Securities of a Holder and keep information available
granted to a Holder by the Company under Section 5 or Section 6 of this
Agreement may be assigned by a Holder to any partner or shareholder of such
Holder, to any other Holder, or to a transferee or assignee; provided, that the
Company is given written notice by the Holder at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned.
13. Termination
of Rights. The rights of any particular Holder to cause the
Company to register securities under Section 5 or Section 6 of this Agreement
shall terminate with respect to such Holder at such time that such Holder is
able to dispose of all of such Holder’s Registrable Securities (i) in one
three-month period pursuant to the provisions of Rule 144, provided that such
Holder holds not more than one percent (1%) of the outstanding voting stock of
the Company, or (ii) otherwise pursuant to the provisions of Rule
144.
14 Remedies
upon Default or Delay. Without limitation of any other remedy
available to a Holder under applicable law or otherwise, if the Company shall
(1) fail to register Registrable Securities after it shall have been requested
to do so by a Holder or otherwise required to do so in accordance with Section 5
or Section 6 of this Agreement, or (2) fail to perform any of its obligations
hereunder and as a result of such failure Holders have not been able to sell
their Registrable Securities, or (3) act or fail to act in any manner such that
one or more Holders have been delayed in the sale of their Registrable
Securities, which delay is not expressly permitted by this Agreement, then any
Holder adversely affected by such action, failure or delay shall be entitled to
the relief set forth in Section 5 or Section 6 above.
15. Miscellaneous.
a. Amendments. This
Agreement may be amended only by a writing signed by the Holders of a majority
of the Registrable Securities, as constituted from time to time. The Holders
hereby consent to future amendments to this Agreement that permit future
investors, other than employees, officers or directors of the Company, to be
made parties hereto and to become Holders of Registrable Securities; provided, however, that no such future
amendment (even if approved by Holders of a majority of the Registrable
Securities), may materially impair or adversely affect the rights of the Holders
hereunder without obtaining the requisite consent of the effected Holders, as
set forth above. For purposes of this Section, Registrable Securities held by
the Company or beneficially owned by any officer or employee of the Company
shall be disregarded and deemed not to be outstanding.
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b. Counterparts. This
Agreement may be executed in any number of counterparts, all of which shall
constitute a single instrument.
c. Notices, Etc. All
notices and other communications required or permitted hereunder shall be in
writing and may be sent initially by facsimile transmission and shall be mailed
by registered or certified mail, postage prepaid, or otherwise delivered by hand
or by messenger, addressed to the addresses set forth in the Settlement
Agreement. Each such notice or other communication shall for all
purposes of this Agreement be treated as effective or having been given when
delivered if delivered personally, or, if sent by first class, postage prepaid
mail, at the earlier of its receipt or seventy-two (72) hours after the same has
been deposited in a regularly maintained receptacle for the deposit of the
United States mail, addressed and mailed as aforesaid.
d. Severability. If any
provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall attach only
to such provision and shall not in any manner affect or render illegal, invalid
or unenforceable any other provision of this Agreement, and this Agreement shall
be carried out as if any such illegal, invalid or unenforceable provision were
not contained herein.
e. Governing Law. This
Agreement shall be governed by and construed under the laws of the State of New
York without regard to principles of conflict of law.
f. Facsimile
Signature. This
Agreement may be executed and delivered to the Investor containing a facsimile
signature of an executive officer of the Company; which facsimile signature the
Company acknowledges and agrees shall have the same validity and enforceability
as those the same were a ribbon original signature
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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.
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THE
COMPANY:
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(to
be renamed MoqiZone Holdings Corporation)
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By:
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Name:
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Title:
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Investor
signature page to Registration Rights Agreement
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed on the day and year first above
written.
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Address
of Investor:
|
Name
of Investor:
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By:
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|||
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