Contract
EXHIBIT 4.3
REGISTRATION
RIGHTS
AGREEMENT
THIS AGREEMENT is made as of
this ___ day of February, 2008, by and between Hybrook Resources Corp., a Nevada
corporation (the ¡¡ãCompany¡¡À), and the
purchasers of the Company¡¯s Units identified in Exhibit A attached hereto
(each, ¡¡ãStockholder,¡¡À and
collectively, the ¡¡ãStockholders¡¡À),
pursuant to the Company¡¯s Confidential Private Placement Memorandum originally
dated January 3, 2008 as supplemented (the ¡¡ãMemorandum¡¡À)and
pursuant to their separate Subscription Agreements made with the Company
(collectively, the ¡¡ãSubscription
Agreements¡¡À). In order to induce the Stockholders to enter
into the Subscription Agreements, the Company has agreed to provide to the
Stockholders and their direct and indirect transferees and assigns the
registration rights set forth in this Agreement.
NOW THEREFORE, in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Registration
Rights.
(a) Grant of Registration
Rights. The Company agrees to use its best efforts to file a
Registration Statement (¡¡ãRegistration
Statement¡¡À)under the Securities Act of 1933, as amended (the ¡¡ãSecurities Act¡¡À),
that will register all of the shares of (i) the Company¡¯s common stock included
in the Units and, (ii) the Company¡¯s Series A Preferred Stock included in the
Units, which Units have been issued to the Stockholder by the Company through
the Offering described in the Memorandum (the (¡¡ãRegistrable
Securities¡¡À)within 60 days following the Closing of the Offering
(¡¡ãClosing
Date¡¡À). The Company further agrees to use its reasonable best
efforts to have the Registration Statement declared effective within 180 days of
its initial filing date.
(b) Additional Registration
Statements. In the event the Company is unable for any reason
to register all of the Registrable Securities, including but not limited to an
SEC interpretation of Rule 415 as to the amount of securities eligible in any
one offering, the Company agrees to file a subsequent registration statement
within a reasonable time frame and delay, and as many registration statements as
are necessary to fulfill and accomplish the registration rights granted to
Stockholder as contained in section 1(a).
(c) Maintenance of Registration
Statement. The Company will maintain the effectiveness of the
Registration Statement filed hereunder from its effective date through and until
24 months after the Closing Date, unless all Registrable Securities have been
sold or are otherwise able to be sold pursuant to Rule 144, at which time the
Company will no longer be required to maintain the Registration Statement
further.
(d) Liquidated
Damages. In the event that the Company is not able to file the
Registration Statement within 90 days of the Closing Date or fails to use its
best efforts to have the Registration Statement declared effective, the Company
shall pay to Stockholder as liquidated damages an amount equal to 0.5% of the
Stockholders¡¯ investment, payable in cash or Common Stock valued at the
original purchase price for the Common Stock, in the discretion of the Company,
up to a maxi mum of 6% of the Stockholders¡¯ investment, for each month the
Company continues to be in violation of this provision.
2. Registration
Procedures. The Company shall use its best efforts to
effectuate the registration and the sale of such Registrable Securities, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare
and file with the SEC a Registration Statement with respect to such Registrable
Securities and use all commercially reasonable efforts to cause such
Registration Statement to become effective;
(b) notify
the Stockholder of the effectiveness of the Registration Statement filed
hereunder and prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective;
(c) furnish
to the Stockholder such number of copies of the Registration Statement, each
amendment and supplement thereto, the prospectus included in the Registration
Statement (including each preliminary prospectus) and such other documents as
the Stockholder may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by the Stockholder;
(d) notify
the Stockholder, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event as a result
of which the prospectus included in such Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of the Stockholder, the
Company shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not
misleading;
(e) in
the event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any common stock included
in such Registration Statement for sale in any jurisdiction, the Company shall
use its best efforts promptly to obtain the withdrawal of such
order;
3. Registration
Expenses. All expenses incident to the Company¡¯s performance
of or compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, fees and disbursements of counsel for the Company
and all independent certified public accountants (all such expenses being herein
called ¡¡ãRegistration
Expenses¡¡À) shall be borne by the Company. The Stockholder will pay any
commissions or other fees payable to brokers or dealers in connection with any
sale of the Registrable Securities.
4. Indemnification.
(a) The
Company agrees to indemnify, to the extent permitted by l aw, the Stockholder,
its stockholders, members, managers, officers and directors and each person who
controls the Stockholder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained i n any Registration
Statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished to the Company by the Stockholder.
(b) In
connection with any Registration Statement in which the Stockholder is
participating, the Stockholder shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such Registration Statement or prospectus and, to the extent
permitted by law, shall indemnify the Company, its directors and officers and
each person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
Registration Statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by the
Stockholder.
(c) Any
person entitled to indemnification hereunder shall (i) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any person¡¯s right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party¡¯s reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld, conditioned or delayed). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
(d) The
indemnification provided for under this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling person of such indemnified party
and shall survive the transfer of securities. The Company also agrees to make
such provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company¡¯s indemnification is
unavailable for any reason.
5. Miscellaneous.
(a) This
Agreement and the Subscription Agreement of even date submitted herewith between
the Company and Stockholder embody the complete agreement and understanding
among the parties and supersede and preempt any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof i n any way.
(b) Any
person having rights under any provision of this Agreement shall be entitled to
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages may
not be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(c) The
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the Stockholder.
(d) All
covenants and agreements in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. Notwithstanding the
foregoing, however, this Agreement is not assignable without the prior written
consent of both parties hereto.
(e) Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
(f) This
Agreement may be executed simultaneously in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
Agreement.
(g) The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
(h) The
corporate law of Nevada shall govern all issues and questions concerning the
relative rights of the Company and its stockholders. All other issues and
questions concerning the construction, validity, interpretation and enforcement
of this Agreement shall be governed by, and construed in accordance with, the
laws of the Nevada, without giving effect to any choice of law or conflict of
law rules or provisions (whether of Nevada law or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the
Nevada. Any dispute arising out of or relating to this Agreement shall be
resolved in the state or federal courts sited in Xxxxx County, Nevada to the
exclusion of all other venues and the parties hereby irrevocably consent to the
personal jurisdiction of said courts in connection with any such
dispute.
(i) All notices, demands or other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be deemed to have been given when
delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid) or mailed to the recipient by
certified or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the following
addresses:
Hybrook
Resources Corp.
0000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxxxxxx (CEO)
With
copies to:
Cane
Xxxxx LLP
0000 X. X
xxx Xxxxxxx, Xx.
Xxx
Xxxxx, XX
Attention:
Xxxxx Xxxxx
Stockholder:
At the
address provided below
or to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written
above.
HYBROOK
RESOURCES CORP.
By:
Name: Xxxxx
Xxxxxxxx
Title: CEO
STOCKHOLDER
By:
Name:
Title:
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