Exhibit 10.2
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and entered
into as of January 2, 2014, between TUNGSTEN CORP., a Nevada corporation (the
"COMPANY"), and HANOVER HOLDINGS I, LLC, a New York limited liability company
(the "INVESTOR").
In connection with the Note Purchase Agreement, dated as of January 2,
2014, entered into by the Company and the Investor (the "NOTE PURCHASE
AGREEMENT"), the Company has agreed, upon the terms and subject to the
conditions of the Note Purchase Agreement, to issue and sell to the Investor a
note of the Company (the "NOTE"), which will, among other things, be convertible
into shares of the Company's common stock, $0.0001 par value per share (the
"COMMON STOCK", as converted, the "CONVERSION SHARES") in accordance with the
terms of the Note.
To induce the Investor to consummate the transactions contemplated by the
Note Purchase Agreement, the Company has agreed to provide certain registration
rights under the 1933 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.
The Company and the Investor hereby agrees as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein that are defined in the Note Purchase Agreement shall have the meanings
given such terms in the Note Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"INITIAL REGISTRATION STATEMENT" means the initial Registration
Statement filed pursuant to this Agreement.
"PROSPECTUS" means the prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated by the SEC
pursuant to the 1933 Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"EFFECTIVENESS DEADLINE" means, (i) with respect to the Initial
Registration Statement required to be filed hereunder, the earlier of (A)
the 100th calendar day after the date of hereof in the event that such
Registration Statement is subject to a limited or full review by the SEC
and (B) the fifth Trading Day after the date the Company is notified
(orally or in writing, whichever is earlier) by the SEC that such
Registration Statement will not be reviewed or will not be subject to
further review, and (ii) with respect to any additional Registration
Statements which may be required pursuant to Section 2, the earlier of (A)
the 90th calendar day following the date on which an additional
Registration Statement is required to be filed hereunder in the event that
such Registration Statement is subject to a limited or full review by the
SEC and (B) the fifth Trading Day after the date the Company is notified
(orally or in writing, whichever is earlier) by the SEC that such
Registration Statement will not be reviewed or will not be subject to
further review.
"FILING DEADLINE" means, with respect to the Initial Registration
Statement required hereunder, the 45th calendar day following the date
hereof and, with respect to any additional Registration Statements which
may be required pursuant to Section 2, the earliest practical date on which
the Company is permitted to file such additional Registration Statement
related to the Registrable Securities (taking into account any Staff
position with respect to date on which the Staff will permit such
additional Registration Statement to be filed with the SEC).
"REGISTRABLE SECURITIES" means, as of any date of determination, (a)
all Conversion Shares then issuable upon conversion in full of the Notes
(assuming on such date the Notes are converted in full without regard to
any conversion limitations therein), and (b) any securities issued or then
issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing; provided,
however, that any such Registrable Securities shall cease to be Registrable
Securities for so long as (x) a Registration Statement with respect to the
sale of such Registrable Securities is declared effective by the SEC under
the 1933 Act and such Registrable Securities have been disposed of by the
holder in accordance with such effective Registration Statement, or (y)
such Registrable Securities have been previously sold in accordance with
Rule 144.
"REGISTRATION STATEMENT" means any registration statement required to
be filed hereunder pursuant to Section 2, including (in each case) the
Prospectus, amendments and supplements to any such registration statement
or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be
incorporated by reference in any such registration statement.
"RESTRICTION TERMINATION DATE" shall have the meaning set forth in
Section 2.
"RULE 415" means Rule 415 promulgated by the SEC pursuant to the 1933
Act, as such Rule may be amended or interpreted from time to time, or any
similar rule or regulation hereafter adopted by the SEC having
substantially the same purpose and effect as such Rule.
"SEC" means the United States Securities and Exchange Commission.
Section 2. Registration Statement Requirements. The Company shall prepare
and, as soon as practicable, but in no event later than the Filing Deadline,
file with the SEC the Initial Registration Statement on Form S-1, or such other
form reasonably acceptable to the Investor, covering the resale by the Investor
of all or such portion of the Registrable Securities as permitted by the SEC
(provided that the Company shall use diligent efforts to advocate with the SEC
for the registration of all of the Registrable Securities) pursuant to Rule 415.
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The Company shall use its reasonable best efforts to have such Initial
Registration Statement, and each other Registration Statement required to be
filed pursuant to the terms hereof, declared effective by the SEC as soon as
practicable, but in no event later than the applicable Effectiveness Deadline.
If at any time all Registrable Securities are not covered by the Initial
Registration Statement filed pursuant to this Section 2, the Company shall file
with the SEC one or more additional Registration Statements so as to cover all
of the Registrable Securities not covered by the Initial Registration Statement,
in each case, as soon as practicable (taking into account any Staff position
with respect to date on which the Staff will permit such additional Registration
Statement(s) to be filed with the SEC), but in no event later than the
applicable Filing Deadline for such additional Registration Statement(s). If the
staff of the SEC (the "STAFF") or the SEC seeks to characterize any offering
pursuant to a Registration Statement filed pursuant to this Agreement as
constituting an offering of securities that does not permit such Registration
Statement to become effective and be used for resales by the Investor on a
delayed or continuous basis under Rule 415 at then-prevailing market prices (and
not fixed prices) (or as otherwise may be acceptable to the Investor), or if
after the filing of the Initial Registration Statement with the SEC pursuant to
this Section 2, the Company is otherwise required by the Staff or the SEC to
reduce the number of Registrable Securities included in such Initial
Registration Statement, then the Company shall reduce the number of Registrable
Securities to be included in such Initial Registration Statement (with the prior
consent of the Investor as to the specific Registrable Securities to be removed
therefrom) until such time as the Staff and the SEC shall so permit such
Registration Statement to become effective and be used as aforesaid.
Notwithstanding anything in this Agreement to the contrary, if after giving
effect to the actions referred to in the immediately preceding sentence, the
Staff or the SEC does not permit such Registration Statement to become effective
and be used for resales by the Investor on a delayed or continuous basis under
Rule 415 at then-prevailing market prices (and not fixed prices) (or as
otherwise may be acceptable to the Investor), the Company shall not request
acceleration of the effective date of such Registration Statement, the Company
shall promptly (but in no event later than 48 hours) request the withdrawal of
such Registration Statement pursuant to Rule 477 under the 1933 Act, and the
Effectiveness Deadline shall automatically be deemed to have elapsed with
respect to such Registration Statement at such time as the Staff or the SEC has
made a final and non-appealable determination that the SEC will not permit such
Registration Statement to be so utilized (unless prior to such time the Company
and the Investor have received assurances from the Staff or the SEC reasonably
acceptable to the Investor that a new Registration Statement filed by the
Company with the SEC promptly thereafter may be so utilized). In the event of
any reduction in Registrable Securities pursuant to this paragraph, the Company
shall file additional Registration Statements in accordance with this Section 2
until such time as all Registrable Securities have been included in Registration
Statements that have been declared effective and the prospectus contained
therein is available for use by the Investor.
Section 3. Registration Procedures. If and whenever the Company is required
by the provisions of Section 2 to effect the registration of any Registrable
Securities under the 1933 Act, the Company will, as expeditiously as possible:
(a) subject to the timelines provided in this Agreement, prepare and file
the Registration Statement with the SEC, with respect to such Registrable
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Securities and use its commercially reasonable efforts to cause such
Registration Statement to become and remain effective for the period of the
distribution contemplated thereby (determined as herein provided), respond as
promptly as commercially practicable to any comments received from the SEC with
respect to a Registration Statement or any amendment thereto and file any
pre-effective amendments with respect to a Registration Statement as promptly as
reasonable possible, and promptly provide to Investors copies of all filings and
SEC letters of comment (provided that the Company shall excise any information
contained therein which would constitute material non-public information
regarding the Company or any subsidiary) and notify the Investors (by telecopier
or by e-mail addresses provided by the Investors) on or before the second
business day thereafter that the Company receives notice that (i) the SEC has no
comments or no further comments on the registration statement, and (ii) the
registration statement has been declared effective;
(b) 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 and prepare and file
with the SEC such additional Registration Statements as may be required
hereunder and to keep each additional Registration Statement effective;
(c) furnish to the Investors such number of copies of the Registration
Statement and the prospectus included therein (including each preliminary
prospectus) as such Investors reasonably may request in order to facilitate the
public sale or their disposition of the securities covered by such Registration
Statement or make them electronically available;
(d) use its commercially reasonable efforts to register or qualify the
Registrable Securities covered by such Registration Statement under the
securities or "Blue Sky" laws of such jurisdictions as the Investors shall
request in writing, provided, however, that the Company shall not for any such
purpose be required to qualify to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to service of
process in any such jurisdiction;
(e) list the Registrable Securities covered by such Registration Statement
with the principal market or exchange on which the Common Stock is then listed;
(f) promptly notify the Investors of the Company's becoming aware that a
prospectus relating thereto is required to be delivered under the 1933 Act, of
the happening of any event or passage of time of which the Company has knowledge
as a result of which the prospectus contained 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 light of the circumstances then existing or
the financial statements included therein ineligible for inclusion or which
becomes subject to a SEC, state or other governmental order suspending the
effectiveness of the Registration Statement covering any of the Registrable
Securities. Each Investor hereby covenants that it will not sell any Registrable
Securities pursuant to such prospectus during the period commencing at the time
at which the Company gives such Investor notice of the suspension of the use of
such prospectus in accordance with this Section 3(f) and ending at the time the
Company gives such Investor notice that such Investor may thereafter effect
sales pursuant to the prospectus, or until the Company delivers to such Investor
or files with the SEC an amended or supplemented prospectus.
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(g) The Company shall cooperate with any broker-dealer through which an
Investor proposes to resell its Registrable Securities in effecting a filing
with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as
requested by any such Investor, and the Company shall pay the filing fee
required by such filing within two (2) business days of request therefor.
Section 4. Provision of Documents. 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 the Investor that the
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.
Section 5. Expenses. All expenses incurred by the Company in complying with
Section 2, including, without limitation, all registration and filing fees,
printing expenses (if required), fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
reasonable counsel fees) incurred in connection with complying with state
securities or "Blue Sky" laws, fees of the Financial Industry Regulatory
Authority, Inc. ("FINRA") in connection with any filing with FINRA pursuant to
FINRA Rule 5110 that may be required to be made by any broker through which an
Investor intends to make sales of Registrable Securities, transfer taxes, and
fees of transfer agents and registrars, are called "REGISTRATION EXPENSES." The
Company will pay all Registration Expenses in connection with any Registration
Statement described in Section 2.
Section 6. Indemnification.
(a) In the event any Registrable Securities are included in any
Registration Statement under this Agreement, to the fullest extent permitted by
law, the Company will, and hereby does, indemnify, hold harmless and defend the
Investor, each of its directors, officers, shareholders, members, partners,
employees, agents, advisors, representatives (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding the
lack of such title or any other title) and each Person, if any, who controls the
Investor within the meaning of the 1933 Act or the 1934 Act and each of the
directors, officers, shareholders, members, partners, employees, agents,
advisors, representatives (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding the lack of such title or
any other title) of such controlling Persons (each, an "INVESTOR PARTY" and
collectively, the "INVESTOR PARTIEs"), against any losses, obligations, claims,
damages, liabilities, contingencies, judgments, fines, penalties, charges, costs
(including, without limitation, court costs, reasonable attorneys' fees, costs
of defense and investigation), 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 Investor Party is or may be a party thereto ("INDEMNIFIED
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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 or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus (as amended or supplemented) or in any prospectus supplement 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 (the matters in the foregoing
clauses (i) and (ii) being, collectively, "VIOLATIONS"). Subject to Section
6(c), the Company shall reimburse the Investor Parties, 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 Investor Party 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 Investor Party for such Investor
Party expressly for use in connection with the preparation of such Registration
Statement, prospectus or prospectus supplement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the Investor to the extent
such Claim is based on a failure of the Investor to deliver or to cause to be
delivered the prospectus (as amended or supplemented) made available by the
Company (to the extent applicable), including, without limitation, a corrected
prospectus, if such prospectus (as amended or supplemented) or corrected
prospectus was timely made available by the Company pursuant to Section 3 and
then only if, and to the extent that, following the receipt of the corrected
prospectus no grounds for such Claim would have existed; and (iii) 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 Investor
Party and shall survive the transfer of any of the Registrable Securities by the
Investor pursuant to Section 8(f).
(b) In connection with any Registration Statement in which the Investor is
participating, the 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 "COMPANY
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 relating to the
Investor furnished to the Company by the Investor expressly for use in
connection with such Registration Statement; and, subject to Section 6(c) and
the below provisos in this Section 6(b), the Investor will reimburse a Company
Party any legal or other expenses reasonably incurred by such Company Party in
connection with investigating or defending any such Claim; provided, however,
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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 the Investor, which consent shall not be unreasonably
withheld or delayed, provided further 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 the Investor as a result of the applicable 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 Company Party and shall survive the transfer of any
of the Registrable Securities by the Investor pursuant to Section 8(f).
(c) Promptly after receipt by an Investor Party or Company Party (as the
case may be) under this Section 6 of notice of the commencement of any action or
proceeding (including, without limitation, any governmental action or
proceeding) involving a Claim, such Investor Party or Company Party (as the case
may be) 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 Investor Party or the Company Party (as the case may
be); provided, however, an Investor Party or Company Party (as the case may be)
shall have the right to retain its own counsel with the fees and expenses of
such counsel to be paid by the indemnifying party if: (i) the indemnifying party
has agreed in writing to pay such fees and expenses; (ii) the indemnifying party
shall have failed promptly to assume the defense of such Claim and to employ
counsel reasonably satisfactory to such Investor Party or Company Party (as the
case may be) in any such Claim; or (iii) the named parties to any such Claim
(including, without limitation, any impleaded parties) include both such
Investor Party or Company Party (as the case may be) and the indemnifying party,
and such Investor Party or such Company Party (as the case may be) shall have
been advised by counsel that a conflict of interest is likely to exist if the
same counsel were to represent such Investor Party or such Company Party and the
indemnifying party (in which case, if such Investor Party or such Company Party
(as the case may be) notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, then the
indemnifying party shall not have the right to assume the defense thereof on
behalf of the indemnified party and such counsel shall be at the expense of the
indemnifying party, provided further that in the case of clause (iii) above the
indemnifying party shall not be responsible for the reasonable fees and expenses
of more than one (1) separate legal counsel for all Investor Parties or Company
Parties (as the case may be). The Company Party or Investor Party (as the case
may be) shall reasonably cooperate 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 Company Party or Investor Party (as the case may be) which
relates to such action or Claim. The indemnifying party shall keep the Company
Party or Investor Party (as the case may be) reasonably 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, the indemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the prior written
consent of the Company Party or Investor Party (as the case may be), consent to
entry of any judgment or enter into any settlement or other compromise which
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does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Company Party or Investor Party (as the case may be) of a
release from all liability in respect to such Claim or litigation, and such
settlement shall not include any admission as to fault on the part of the
Company Party. For the avoidance of doubt, the immediately preceding sentence
shall apply to Sections 6(a) and 6(b) hereof. Following indemnification as
provided for hereunder, the indemnifying party shall be subrogated to all rights
of the Company Party or Investor Party (as the case may be) 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
Investor Party or Company Party (as the case may be) under this Section 6,
except to the extent that the indemnifying party is materially and adversely
prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities who 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 indemnification from any
Person involved in such sale of Registrable Securities who is not guilty of
fraudulent misrepresentation.
(e) 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 bills are received or Indemnified Damages are incurred;
provided that the Investor shall promptly reimburse the Company for all such
payments to the extent a court of competent jurisdiction determines that any
Investor Party was not entitled to such payments.
(f) The indemnity and contribution agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Company Party or
Investor Party against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
Section 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: (i) no contribution shall be made under circumstances
where the maker would not have been liable for indemnification under the fault
standards set forth in Section 6 of this Agreement, (ii) 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 (iii) contribution by any seller of Registrable
Securities shall be limited in amount to the amount of net proceeds received by
such seller from the applicable sale of such Registrable Securities pursuant to
such Registration Statement. Notwithstanding the provisions of this Section 7,
the Investor shall not be required to contribute, in the aggregate, any amount
in excess of the amount by which the net proceeds actually received by the
Investor from the applicable sale of the Registrable Securities subject to the
Claim exceeds the amount of any damages that the Investor has otherwise been
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required to pay, or would otherwise be required to pay under Section 6(b), by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
Section 8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by the Investor of
any of their respective obligations under this Agreement, the Investor or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
shall be entitled to specific performance of its rights under this Agreement.
Each of the Company and the Investor agrees that monetary damages would not
provide adequate compensation for any losses incurred by reason of a breach by
it of any of the provisions of this Agreement and hereby further agrees that, in
the event of any action for specific performance in respect of such breach, it
shall not assert or shall waive the defense that a remedy at law would be
adequate.
(b) Compliance. The 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 a Registration
Statement.
(c) Piggy-Back Registrations. If, at any time prior to the six month
anniversary of the date hereof, there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall determine to
prepare and file with the SEC a registration statement relating to an offering
for its own account or the account of others under the 1933 Act of any of its
equity securities, other than on Form S-4 or Form S-8 (each as promulgated under
the 0000 Xxx) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or business or
equity securities issuable in connection with the Company's stock option or
other employee benefit plans, then the Company shall deliver to the Investor a
written notice of such determination and, if within fifteen days after the date
of the delivery of such notice, the Investor shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities the Investor requests to be registered; provided,
however, that the Company shall not be required to register any Registrable
Securities pursuant to this Section 8(c) that are the subject of a then
effective Registration Statement.
(d) Amendments and Waivers. No provision of this Agreement may be (i)
amended other than by a written instrument signed by both parties hereto or (ii)
waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought. 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) Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be delivered as set forth
in the Note Purchase Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties.
The Company may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of the Investor. The Investor may
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assign its rights hereunder if: (i) the Investor agrees in writing with such
transferee or assignee (as the case may be) to assign all or any portion of such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such transfer or assignment (as the case may be); (ii) the
Company is, within a reasonable time after such transfer or assignment (as the
case may be), furnished with written notice of (a) the name and address of such
transferee or assignee (as the case may be), and (b) the securities with respect
to which such registration rights are being transferred or assigned (as the case
may be); (iii) immediately following such transfer or assignment (as the case
may be) the further disposition of such securities by such transferee or
assignee (as the case may be) is restricted under the 1933 Act or applicable
state securities laws if so required; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence such
transferee or assignee (as the case may be) agrees in writing with the Company
to be bound by all of the provisions contained herein; (v) such transfer or
assignment (as the case may be) shall have been made in accordance with the
applicable requirements of the Note Purchase Agreement and the Note; and (vi)
such transfer or assignment (as the case may be) shall have been conducted in
accordance with all applicable federal and state securities laws. The term
"Investor" in this Agreement shall also include all such transferees and
assignees.
(g) Execution and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a ".pdf" format
data file, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile or ".pdf" signature page were an original
thereof.
(h) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Note Purchase Agreement.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for convenience only, do
not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(SIGNATURE PAGES FOLLOW)
10
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
TUNGSTEN CORP.
By:
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Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
HANOVER HOLDINGS I, LLC, A NEW YORK LIMITED
LIABILITY COMPANY
By:
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Name:
Title:
