REGISTRATION RIGHTS AGREEMENT
Exhibit
10.8
This
Registration Rights Agreement (this “Agreement”) is made and
entered into as of
November
27, 2019 by and among Exactus,
Inc., a Nevada corporation (the “Company”), and each
purchaser identified on the signature pages hereto (including its
successors and assigns, the “Purchaser”).
This
Agreement is being entered into pursuant to the Securities Purchase
Agreement dated as of the date hereof between the Company and the
Purchaser (the “Purchase
Agreement”).
The
Company and each Purchaser hereby agrees as follows:
“Advice” shall have
meaning set forth in Section 3(m).
“Affiliate” means, with
respect to any Person, any other Person which directly or
indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person. For
the avoidance of doubt, with respect to a Purchaser which is a
general or limited partnership, an Affiliate shall be deemed to
include affiliated partnerships managed by the same management
company or managing general partner or by an entity which controls,
is controlled by, or is under common control with, such management
company or managing general partner.
“Board” shall have meaning
set forth in Section 3(n).
“Business Day” means any
day except Saturday, Sunday and any day which shall be a legal
holiday or a day on which banking institutions in the State of New
York generally are authorized or required by law or other
government actions to close.
“Closing Date” means the
date of the closing of the purchase and sale of the Securities
pursuant to the Purchase Agreement.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means the
Company’s common stock, par value $0.0001 per
share.
“Conversion Shares” means
the Common Stock issuable upon conversion of the
Notes.
“Control” (including the
terms “controlling”, “controlled by” or
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.
“Effectiveness Date” means
with respect to the Registration Statement under Section 2(a), the
earlier of (A) the ninetieth (90th) day following the Closing Date,
or (B) the date which is within three (3) Business Days after the
date on which the Commission informs the Company (i) that the
Commission will not review the Registration Statement or
(ii) that the Company
may request the acceleration of the effectiveness of the
Registration Statement; provided, however, that, if the Effectiveness Date
falls on a Saturday, Sunday or any other day which shall be a legal
holiday or a day on which the Commission is authorized or required
by law or other government actions to close, the Effectiveness Date
shall be the following Business Day.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall have the
meaning set forth in Section 7(f).
“Event Date” shall have
the meaning set forth in Section 7(f).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
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“Filing Date” means with
respect to a Registration Statement under Section 2(a), the date
that is the forty-fifth (45th) day following the Closing Date;
provided,
however that if the
Filing Date falls on a Saturday, Sunday or any other day which
shall be a legal holiday or a day on which the Commission is
authorized or required by law or other government actions to close,
the Filing Date shall be the following Business Day.
“Holder” or
“Holders” means the holder
or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party” shall
have the meaning set forth in Section 5(c).
“Indemnifying Party” shall
have the meaning set forth in Section 5(c).
“Losses” shall have the
meaning set forth in Section 5(a).
“Notes” means the original
issue discount 8% Senior Secured Convertible Notes issued or to be
issued to the Purchaser pursuant to the Purchase Agreement and such
additional original issue discount 8% Senior Secured Convertible
Notes as may thereafter be issued and sold to the Purchaser
pursuant to the terms and conditions of the Purchase
Agreement.
“Offering” means the
offering made pursuant to Section 4(a)(2) of the Securities Act and
Rule 506 promulgated thereunder of the Securities of the Company
pursuant to the Purchase Agreement.
“Person” means an
individual or a corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including,
without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
“Prospectus” means the
prospectus included in the 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 under
the Securities 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 the Registration
Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
“Purchase Agreement” means
the Securities Purchase Agreement, dated the date hereof by and
between the Company and the Purchaser.
“Registrable Securities”
means, collectively (i) the Conversion Shares; (ii) the Warrant
Shares; (iii) any other securities of the Company subsequently
acquired by the Purchaser pursuant to the Purchase Agreement; (iv)
any securities issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event with respect
to the foregoing; provided, that the Holder has
completed and delivered to the Company a Selling Stockholder
Questionnaire; and provided, further, that the Conversion
Shares and Warrant Shares shall cease to be Registrable Securities
upon the sale pursuant to a Registration Statement or Rule 144
under the Securities Act (in which case, only such security sold
shall cease to be a Registrable Security).
“Registration Statement”
means either (a) an appropriate Registration Statement that
register the Registrable Securities, or (b) a registration
statement and any additional registration statements contemplated
by Section 2, including (in each case) the Prospectus, amendments
and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference in such registration
statement.
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“Required Registration
Amount” means the number
of shares of Common Stock equal to the Required
Minimum.
“Rule 144” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 158” means Rule 158
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 415” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Rule 424” means Rule 424
promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially
the same effect as such Rule.
“Securities” means the
Note, the Conversion Shares, the Warrant and the Warrant
Shares.
“Securities Act” means the
Securities Act of 1933, as amended.
“SEC Guidance” means (i)
any publicly available written or oral guidance of the Commission
staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“Selling Stockholder
Questionnaire” means a questionnaire in the form
attached as Exhibit
B hereto, or such other form of questionnaire as may
reasonably be adopted by the Company from time to
time.
“Warrants” means the
warrants to purchase the Warrant Shares issued to the Purchaser
pursuant to the Purchase Agreement.
“Warrant Shares” means the
shares of Common Stock issuable upon exercise of the
Warrant.
(a) On
or prior to the Filing Date, the Company shall prepare and file
with the Commission a “resale” Registration Statement
providing for the resale of all Registrable Securities by means of
an offering to be made on a continuous basis pursuant to Rule 415
provided that such initial
Registration Statement shall register for resale at least the
number of shares of Common Stock equal to the Required Registration
Amount as of the date such Registration Statement is initially
filed with the Commission. The Registration Statement shall
be on Form S-1 (or another appropriate form in accordance
herewith). The Company shall (i) not permit any securities other
than the Registrable Securities to be included in the Registration
Statement and (ii) use its commercially reasonable efforts to cause
the Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof,
but in any event prior to the Effectiveness Date, and to keep such
Registration Statement continuously effective under the Securities
Act until such date when all Registrable Securities covered by such
Registration Statement have been sold (the “Effectiveness Period”).
The Company shall request that the effective time of the
Registration Statement be 4:00 p.m. Eastern Time on the
Effectiveness Date. If at any time and for any reason, an
additional Registration Statement is required to be filed because
at such time the actual number of Registrable Securities exceeds
the number of Registrable Securities remaining under the
Registration Statement, the Company shall have thirty (30) Business
Days to file such additional Registration Statement, and the
Company shall use its commercially reasonable efforts to cause such
additional Registration Statement to be declared effective by the
Commission as soon as possible, but in no event later than ninety
(90)) days after such filing; provided, however that if the prior
Registration Statement was filed within six months of such sixty
(60) or ninety (90) day period, then the sixty (60) and ninety (90)
days shall commence immediately after the expiration of the date
that is six months after the filing of the prior Registration
Statement, unless then current securities laws permit the earlier
registration of same.
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(b) Notwithstanding
anything to the contrary set forth in this Section 2, in the event
the Commission does not permit the Company to register all of the
Registrable Securities in the Registration Statement because of the
Commission’s application of Rule 415, the number of
Registrable Securities to be registered on such Registration
Statement will be reduced in the order of the Registrable
Securities represented by the total number of Conversion Shares and
Warrant Shares owned by the Holders, applied on a pro rata basis.
In the event the number of shares available under any Registration
Statement is insufficient to cover all of the Registrable
Securities required to be covered by such Registration Statement,
the Company shall amend such Registration Statement (if
permissible), or file with the Commission a new Registration
Statement (on the short form available therefor, if applicable), or
both, so as to cover at least the Required Registration Amount as
of the Trading Day immediately preceding the date of the filing of
such amendment or new Registration Statement twenty (20)) days
after the necessity therefor arises (but taking account of any
Commission position with respect to the date on which the
Commission will permit such amendment to the Registration Statement
and/or such new Registration Statement (as the case may be) to be
filed with the Commission). The Company shall use its reasonable
best efforts to cause such amendment to such Registration Statement
and/or such new Registration Statement (as the case may be) to
become effective as soon as practicable following the filing
thereof with the Commission, but in no event later than the
applicable Effectiveness Date for such Registration Statement. For
purposes of the foregoing provision, the number of shares available
under a Registration Statement shall be deemed “insufficient
to cover all of the Registrable Securities” if at any time
the number of shares of Common Stock available for resale under the
applicable Registration Statement is less than the Required
Registration Amount. The calculation set forth in the foregoing
sentence shall be made without regard to any limitations on
conversion, amortization and/or redemption of the Notes (and such
calculation shall assume (A) that the Notes are then convertible in
full into shares of Common Stock at the then prevailing Conversion
Rate (as defined in the Notes), and (B) the initial outstanding
principal amount of the Notes remains outstanding through the
scheduled Maturity Date (as defined in the Notes) and no
redemptions of the Notes occur prior to the scheduled Maturity
Date).
For
purposes of this Section 2(b), “Effectiveness Date” means
with respect to each subsequent Registration Statement filed
pursuant hereto, the earlier of (A) the sixtieth (60th) day following the
filing date of such Registration Statement (or in the event such
Registration Statement receives a “full review” by the
Commission, the ninetieth (90th) day following such
filing date) or (B) the date which is within three (3) Business
Days after the date on which the Commission informs the Company (i)
that the Commission will not review such Registration Statement or
(ii) that the Company
may request the acceleration of the effectiveness of such
Registration Statement; provided, that, if the
Effectiveness Date falls on a Saturday, Sunday or any other day
which shall be a legal holiday or a day on which the Commission is
authorized or required by law or other government actions to close,
the Effectiveness Date shall be the following Business
Day.
(c) Each
Holder agrees to furnish to the Company a completed Selling
Stockholder Questionnaire not more than ten (10) Business Days
prior to the filing of a Registration Statement. Each Holder
further agrees that it shall not be entitled to be named as a
selling security holder in the Registration Statement or use the
Prospectus for offers and resales of Registrable Securities at any
time, unless such Holder has returned to the Company a completed
and signed Selling Stockholder Questionnaire. If a Holder of
Registrable Securities returns a Selling Stockholder Questionnaire
after the deadline specified in the previous sentence, the Company
shall use its commercially reasonable efforts to take such actions
as are required to name such Holder as a selling security holder in
the Registration Statement or any pre-effective or post-effective
amendment thereto and to include (to the extent not theretofore
included) in the Registration Statement the Registrable Securities
identified in such late Selling Stockholder Questionnaire;
provided that the
Company shall not be required to file an additional Registration
Statement solely for such shares. Each Holder acknowledges and
agrees that the information in the Selling Stockholder
Questionnaire will be used by the Company in the preparation of the
Registration Statement and hereby consents to the inclusion of such
information in the Registration Statement.
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In
connection with the Company’s registration obligations
hereunder, the Company shall:
(a) Prepare
and file with the Commission, on or prior to the Filing Date, a
Registration Statement on Form S-1 (or another appropriate form in
accordance herewith) in accordance with the plan of distribution as
set forth on Exhibit
A hereto and in accordance with applicable law, and cause
the Registration Statement to become effective and remain effective
as provided herein; provided, however, that not less than
five (5) Business Days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall (i) furnish to the Holders copies of all
such documents proposed to be filed, which documents will be
subject to the review of such Holders, and (ii) cause its officers
and directors, counsel and independent certified public accountants
to respond to such inquiries as shall be necessary to conduct a
reasonable review of such documents. The Company shall not file the
Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Purchasers shall reasonably object
in writing within three (3) Business Days of their receipt
thereof.
(b) (i)
Prepare and file with the Commission such amendments, including
post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective
as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional
Registration Statements as necessary in order to register for
resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by
any required Prospectus supplement, and as so supplemented or
amended to be filed pursuant to Rule 424 (or any similar provisions
then in force) promulgated under the Securities Act; (iii) respond
as promptly as possible, but in no event later than twenty (20)
Business Days, to any comments received from the Commission with
respect to the Registration Statement or any amendment thereto and
as promptly as possible provide the Holders true and complete
copies of all correspondence from and to the Commission relating to
the Registration Statement; (iv) file the final prospectus pursuant
to Rule 424 of the Securities Act no later than two (2) Business
Days following the date the Registration Statement is declared
effective by the Commission; and (v) comply in all material
respects with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by
the Holders thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities as promptly as possible (i)
when a Prospectus or any Prospectus supplement or post-effective
amendment to the Registration Statement is filed; with respect to
the Registration Statement or any post-effective amendment, when
the same has become effective; (ii)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; (iii) 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; and (iv) of the occurrence of any
event that makes any statement made in the Registration Statement
or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to the Registration Statement,
Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not
misleading.
(d)
Use its
commercially reasonable efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of, as promptly as possible, (i) any
order suspending the effectiveness of the Registration Statement or
(ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction.
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(e) If
requested by the Holders of a majority in interest of the
Registrable Securities, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration
Statement such information as the Company reasonably agrees should
be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(f) If
requested by any Holder, furnish to such Holder, without charge, at
least one conformed copy of each Registration Statement and each
amendment thereto, including financial statements and schedules,
all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested by such Person
(including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the
Commission.
(g) Promptly
deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto as such Persons may reasonably
request; and subject to the provisions of Sections 3(m) and 3(n),
the Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement
thereto.
(h) Prior
to any resale of Registrable Securities, use its commercially
reasonable efforts to register or qualify or cooperate with the
selling Holders in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder requests in writing, to keep each
such registration or qualification (or exemption therefrom)
effective during the Effectiveness Period and to do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities
covered by a Registration Statement; provided, however, that the Company shall
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any
action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the
Company to any material tax in any such jurisdiction where it is
not then so subject.
(i) Cooperate
with the Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold
pursuant to a Registration Statement, which certificates, to the
extent permitted by the Purchase Agreement and applicable federal
and state securities laws, shall be free of all restrictive
legends, and to enable such Registrable Securities to be in such
denominations and registered in such names of the Holder in
connection with any sale of Registrable Securities.
(j) Upon
the occurrence of any event contemplated by Section 3(c)(iv), as
promptly as possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither
the Registration Statement nor such Prospectus will contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not
misleading.
(k) Use
its commercially reasonable efforts to cause all Registrable
Securities relating to the Registration Statement, to continue to
be quoted or listed on a securities exchange, quotation system or
market, if any, on which similar securities issued by the Company
are then listed or traded as and when required pursuant to the
Purchase Agreement.
(l) Comply
in all material respects with all applicable rules and regulations
of the Commission and make generally available to its security
holders all documents filed or required to be filed with the
Commission, including, but not limited, to, earning statements
satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 not later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such
period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Company after the effective date of the
Registration Statement, which statement shall conform to the
requirements of Rule 158.
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(m) The
Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock
beneficially owned by such Holder and the natural persons thereof
that have voting and dispositive control over the Registrable
Securities. During any periods that the Company is unable to meet
its obligations hereunder with respect to the registration of the
Registrable Securities solely because any Holder fails to furnish
such information within five (5) Business Days of the
Company’s request, any liquidated damages that are accruing
at such time as to such Holder only shall be tolled and any Event
that may otherwise occur solely because of such delay shall be
suspended as to such Holder only, until such information is
delivered to the Company.
If the
Registration Statement refers to any Holder by name or otherwise as
the holder of any securities of the Company, then such Holder shall
have the right to require (if such reference to such Holder by name
or otherwise is not required by the Securities Act or any similar
federal statute then in force) the deletion of the reference to
such Holder in any amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each
Holder covenants and agrees that it will not sell any Registrable
Securities under the Registration Statement until the Company has
electronically filed the Prospectus as then amended or supplemented
as contemplated in Section 3(e) and notice from the Company that
the Registration Statement and any post-effective amendments
thereto have become effective as contemplated by Section
3(c).
Each
Holder agrees by its acquisition of such Registrable Securities
that, upon receipt of a notice from the Company of the occurrence
of any event of the kind described in Section 3(c)(ii), 3(c)(iii),
or 3(c)(iv)or 3(n), such Holder will forthwith discontinue
disposition of such Registrable Securities under the Registration
Statement until such Holder’s receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement
contemplated by Section 3(e), or until it is advised in writing
(the “Advice”) by the Company
that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental
filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration
Statement.
(n) If
(i) there is material non-public information regarding the Company
which the Company’s Board of Directors (the
“Board”) determines not to
be in the Company’s best interest to disclose and which the
Company is not otherwise required to disclose, (ii) there is a
significant business opportunity (including, but not limited to,
the acquisition or disposition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender
offer or other similar transaction) available to the Company which
the Board determines not to be in the Company’s best interest
to disclose, or (iii) the Company is required to file a
post-effective amendment to the Registration Statement to
incorporate the Company’s quarterly and annual reports and
audited financial statements on Forms 10-Q and 10-K, then the
Company may (x) postpone or suspend filing of a registration
statement for a period not to exceed thirty (30) consecutive days
or (y) postpone or suspend effectiveness of a registration
statement for a period not to exceed thirty (30) consecutive days;
provided that the
Company may not postpone or suspend effectiveness of a registration
statement under this Section 3(n) for more than sixty (60) days in
the aggregate during any three hundred sixty (360) day period;
provided,
however, that no
such postponement or suspension shall be permitted for consecutive
twenty (20) day periods arising out of the same set of facts,
circumstances or transactions.
4.
Registration
Expenses. All fees and expenses incident to the performance
of or compliance with this Agreement by the Company, except as and
to the extent specified in this Section 4, shall be borne by the
Company whether or not the Registration Statement is filed or
becomes effective and whether or not any Registrable Securities are
sold pursuant to the Registration Statement. The fees and expenses
referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings
required to be made with any securities exchange or market on which
Registrable Securities are required hereunder to be listed, if any,
(B) with respect to filing fees required to be paid to the
Financial Industry Regulatory Authority, Inc. (including, without
limitation, pursuant to FINRA Rule 5110) and (C) in compliance with
state securities or Blue Sky laws (including, without limitation,
fees and disbursements of one counsel for the Holders up to a
maximum amount of $5,000), (ii) printing expenses (including,
without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing
of prospectuses is requested by the holders of a majority of the
Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) Securities
Act liability insurance, if the Company so desires such insurance,
and (v) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions
contemplated by this Agreement, including, without limitation, the
Company’s independent public accountants (including the
expenses of any comfort letters or costs associated with the
delivery by independent public accountants of a comfort letter or
comfort letters). In addition, the Company shall be responsible for
all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement
(including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in
connection with the listing of the Registrable Securities on any
securities exchange if required hereunder. The Company shall not be
responsible for any discounts, commissions, transfer taxes or other
similar fees incurred by the Holders in connection with the sale of
the Registrable Securities.
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5.
Indemnification.
An
Indemnified Party shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party or Parties unless: (1) the Indemnifying
Party has agreed in writing to pay such fees and expenses; or (2)
the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or
(3) the named parties to any such Proceeding (including any
impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such parties shall have been advised by
counsel that a conflict of interest is likely to exist if the same
counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ
separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense
thereof and such counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for
any settlement of any such Proceeding effected without its written
consent, which consent shall not be unreasonably withheld or
delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending or threatened Proceeding in respect of which any
Indemnified Party is a party and indemnity has been sought
hereunder, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
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The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro
rata allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the
immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent
misrepresentation.
The
indemnity and contribution agreements contained in this Section are
in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties pursuant to applicable law.
-9-
-10-
-11-
(j)
Assignment of Registration
Rights. The rights of each Holder hereunder, including the
right to have the Company register for resale Registrable
Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder to any Person who acquires
all or a portion of the
Warrants or the Registrable Securities if: (i) the Holder agrees in
writing with the transferee or assignee to assign such rights, and
a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (ii) the Company is, within
a reasonable time 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)
following such transfer or assignment the further disposition of
such securities by the transferee or assignees is restricted under
the Securities Act and applicable state securities laws unless such
securities are registered in a Registration Statement under this
Agreement (in which case the Company shall be obligated to amend
such Registration Statement to reflect such transfer or assignment)
or are otherwise exempt from registration, (iv) at or before the
time the Company receives the written notice contemplated by clause
(ii) of this Section, the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions of this
Agreement, and (v) such transfer shall have been made in accordance
with the applicable requirements of the Purchase Agreement. The
rights to assignment shall apply to the Holders (and to subsequent)
successors and assigns.
(l) Governing
Law; Jurisdiction. All questions concerning the
construction, validity, enforcement and interpretation of the
Transaction Documents shall be governed by and construed and
enforced in accordance with the internal laws of the State of New
York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal Proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York. Each party
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in 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 (including with respect to the enforcement of any
of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any Action or Proceeding, any claim that it
is not personally subject to the jurisdiction of any such court,
that such Action or Proceeding is improper or is an inconvenient
venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in
any such Action or Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for 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 other manner permitted by
law. If any party shall commence an Action or Proceeding to enforce
any provisions of the Transaction Documents, then, in addition to
the obligations of the Company elsewhere in this Agreement, the
prevailing party in such Action or Proceeding shall be reimbursed
by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Action or
Proceeding.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized
persons as of the date first indicated above.
By:
/s/ Xxxxxxxx
Xxxx
Name:
Xxxxxxxx Xxxx
Title:
President & CEO
PURCHASER:
3I,
LP
By:
/s/ Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Authorized Signer
[Signature
Page to Registration Rights Agreement]
-13-
Exhibit A
The
selling security holders and any of their pledgees, donees,
assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock being offered under this
prospectus on any stock exchange, market or trading facility on
which shares of our common stock are traded or in private
transactions. These sales may be at fixed or negotiated prices. The
selling security holders may use any one or more of the following
methods when disposing of shares:
●
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
●
block
trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
●
purchases
by a broker-dealer as principal and resales by the broker-dealer
for its account;
●
an
exchange distribution in accordance with the rules of the
applicable exchange;
●
privately
negotiated transactions;
●
to
cover short sales made after the date that the registration
statement of which this prospectus is a part is declared effective
by the Commission;
●
broker-dealers
may agree with the selling security holders to sell a specified
number of such shares at a stipulated price per share;
●
a
combination of any of these methods of sale; and
●
any
other method permitted pursuant to applicable law.
The
shares may also be sold under Rule 144 under the Securities Act of
1933, as amended (“Securities Act”), if available,
rather than under this prospectus. The selling security holders
have the sole and absolute discretion not to accept any purchase
offer or make any sale of shares if they deem the purchase price to
be unsatisfactory at any particular time.
The
selling security holders may pledge their shares to their brokers
under the margin provisions of customer agreements. If a selling
security holder defaults on a margin loan, the broker may, from
time to time, offer and sell the pledged shares.
Broker-dealers
engaged by the selling security holders may arrange for other
broker-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling security holders (or, if
any broker-dealer acts as agent for the purchaser of shares, from
the purchaser) in amounts to be negotiated, which commissions as to
a particular broker or dealer may be in excess of customary
commissions to the extent permitted by applicable law.
If
sales of shares offered under this prospectus are made to
broker-dealers as principals, we would be required to file a
post-effective amendment to the registration statement of which
this prospectus is a part. In the post-effective amendment, we
would be required to disclose the names of any participating
broker-dealers and the compensation arrangements relating to such
sales.
The
selling security holders and any broker-dealers or agents that are
involved in selling the shares offered under this prospectus may be
deemed to be “underwriters” within the meaning of the
Securities Act in connection with these sales. Commissions received
by these broker-dealers or agents and any profit on the resale of
the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Any
broker-dealers or agents that are deemed to be underwriters may not
sell shares offered under this prospectus unless and until we set
forth the names of the underwriters and the material details of
their underwriting arrangements in a supplement to this prospectus
or, if required, in a replacement prospectus included in a
post-effective amendment to the registration statement of which
this prospectus is a part.
The
selling security holders and any other persons participating in the
sale or distribution of the shares offered under this prospectus
will be subject to applicable provisions of the Exchange Act, and
the rules and regulations under that act, including Regulation M.
These provisions may restrict activities of, and limit the timing
of purchases and sales of any of the shares by, the selling
security holders or any other person. Furthermore, under Regulation
M, persons engaged in a distribution of securities are prohibited
from simultaneously engaging in market making and other activities
with respect to those securities for a specified period of time
prior to the commencement of such distributions, subject to
specified exceptions or exemptions. All of these limitations may
affect the marketability of the shares.
If
any of the shares of common stock offered for sale pursuant to this
prospectus are transferred other than pursuant to a sale under this
prospectus, then subsequent holders could not use this prospectus
until a post-effective amendment or prospectus supplement is filed,
naming such holders. We offer no assurance as to whether any of the
selling security holders will sell all or any portion of the shares
offered under this prospectus.
We have
agreed to pay all fees and expenses we incur incident to the
registration of the shares being offered under this prospectus.
However, each selling security holder and purchaser is responsible
for paying any discounts, commissions and similar selling expenses
they incur.
We and
the selling security holders have agreed to indemnify one another
against certain losses, damages and liabilities arising in
connection with this prospectus, including liabilities under the
Securities Act.
A-1
Exhibit B
Selling Stockholder Questionnaire
1.
(a)
Full Legal Name of
Selling Stockholder:
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(b)
Full Legal Name of
Registered Holder (if not the same as (a) above) through which
Registrable Securities Listed in Item 3 below are
held:
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(c)
Full Legal Name of
Natural Control Person (which means a natural person who directly
or indirectly alone or with others has power to vote or dispose of
the securities covered by the questionnaire):
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Telephone:
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Fax:
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Contact
Person:
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E-mail
address of Contact
Person:________________________________________________
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3.
Beneficial
Ownership of Registrable Securities:
(a)
Type
and Number of Registrable Securities beneficially
owned:
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___________________________________________________________________________
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___________________________________________________________________________
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___________________________________________________________________________
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(b)
Number
of shares of Common Stock to be registered pursuant to this Notice
for resale:
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___________________________________________________________________________
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___________________________________________________________________________
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___________________________________________________________________________
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B-1
(a)
Are you
a broker-dealer?
Yes
☐ No
☐
(b) If “yes” to Section 4(a),
did you receive your Registrable Securities as compensation for
investment banking services to the Company?
Yes
☐ No
☐
Note:
If no,
the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration
Statement.
(c)
Are you
an affiliate of a broker-dealer?
Yes
☐ No
☐
Note:
If yes,
provide a narrative explanation below:
(d)
If you
are an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and
at the time of the purchase of the Registrable Securities to be
resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable
Securities?
Yes
☐ No
☐
Note:
If no,
the Commission’s staff has indicated that you should be
identified as an underwriter in the Registration
Statement.
Except as set forth below in this Item 5, the undersigned is not
the beneficial or registered owner of any securities of the Company
other than the Registrable Securities listed above in Item
3.
Type
and amount of other securities beneficially owned:
______________________________________________________________________________
______________________________________________________________________________
6.
Relationships
with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (owners
of 5% of more of the equity securities of the undersigned) has held
any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the
past three years.
State
any exceptions here:
______________________________________________________________________________
______________________________________________________________________________
B-2
The undersigned has reviewed the form of Plan of Distribution
attached as Exhibit A to the Agreement, and hereby confirms that,
except as set forth below, the information contained therein
regarding the undersigned and its plan of distribution is correct
and complete.
State
any exceptions here:
______________________________________________________________________________
______________________________________________________________________________
***********
The
undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof and prior to the effective date
of any applicable Resale Registration Statement. All notices
hereunder shall be made in writing, by hand delivery, confirmed or
facsimile transmission, first-class mail or air courier
guaranteeing overnight delivery at the address set forth below. In
the absence of any such notification, the Company shall be entitled
to continue to rely on the accuracy of the information in this
Notice and Questionnaire.
By
signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through
(7) above and the inclusion of such information in the Resale
Registration Statement and the Prospectus. The undersigned
understands that such information will be relied upon by the
Company in connection with the preparation or amendment of any such
Registration Statement and the Prospectus.
By
signing below, the undersigned acknowledges that it understands its
obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations
thereunder, particularly Regulation M in connection with any
offering of Registrable Securities pursuant to the Resale
Registration Statement. The undersigned also acknowledges that it
understands that the answers to this Questionnaire are furnished
for use in connection with Registration Statements filed pursuant
to the Agreement and any amendments or supplements thereto filed
with the Commission pursuant to the Securities Act.
The
undersigned hereby acknowledges and is advised of the following
Interpretation A.65 of the July 1997 SEC Manual of Publicly
Available Telephone Interpretations regarding short
selling:
“An Issuer filed a Form S-3 registration statement for a
secondary offering of common stock which is not yet effective. One
of the selling stockholders wanted to do a short sale of common
stock “against the box” and cover the short sale with
registered shares after the effective date. The issuer was advised
that the short sale could not be made before the registration
statement become effective, because the shares underlying the short
sale are deemed to be sold at the time such sale is made. There
would, therefore, be a violation of Section 5 if the shares were
effectively sold prior to the effective date.”
By
returning this Questionnaire, the undersigned will be deemed to be
aware of the foregoing interpretation.
I
confirm that, to the best of my knowledge and belief, the foregoing
statements (including without limitation the answers to this
Questionnaire) are correct.
IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Questionnaire to be executed and delivered
either in person or by its duly authorized agent.
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Dated:_________________________
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Beneficial
Owner:
_______________
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By:__________________________
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Name:
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Title:
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B-3