Exhibit 10.12 Registration Rights Agreement-Edge
PETCARE TELEVISION NETWORK, INC.
REGISTRATION RIGHTS AGREEMENT
AGREEMENT made this 10th day of March, 2003 by and between PetCARE
Television Network, Inc. having an address at 000 X. Xxxxxxxx Xxxxxx, Xxxxx 0,
Xxxxxxxx, Xxxxxxx 00000 (the "Company") and Pet Edge, LLC, having an address at
00-00 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Holder").
W I T N E S S E T H:
WHEREAS, simultaneously herewith, the Company and the Holder are entering
into a Note Purchase Agreement (the "Purchase Agreement"), pursuant to which the
Company is issuing, and the Holder is purchasing a Senior Convertible Promissory
Note of the Company due March 1, 2006, in the aggregate principal amount of
$1,000,000 (the "Note"); and
WHEREAS, the execution and delivery of this Agreement is a condition to the
closing of the Purchase Agreement.
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. CERTAIN DEFINITIONS.
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As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, $.0005 par value per share, of the
Company and any equity securities issued or issuable with respect to the Common
Stock in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"Conversion Shares" means the shares of Common Stock or other equity
securities issued or issuable upon conversion of the Note.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Holder" or "Holders" means Pet Edge, LLC and any party who shall hereafter
acquire and hold Registrable Securities.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in paragraph 4.
"Registrable Securities" means any (i) Conversion Shares owned by the
Holder and (ii) shares of Common Stock issued or issuable, directly or
indirectly, with respect to the Common Stock referenced in clause (i) above by
way of stock dividends, stock split or combination of shares. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have been declared effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, or (ii) such securities shall have been sold (other than in a
privately negotiated sale) pursuant to Rule 144 (or any successor provision)
under the Securities Act, or (iii) the Note has been paid in full.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may from time to time, be in effect.
2. REGISTRATION.
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(a) If the Holder on its own behalf or on behalf of its members shall at
any time on one occasion on or after March ___, 2003, give notice to the Company
to the effect that the Holder and/or its Members contemplates (i) the transfer
of all or any part of the Shares in a manner which may constitute a public
offering thereof, then the Company shall, as soon as practicable (but in any
event within ninety days thereafter), file a registration statement pursuant to
the Act, in order that the Registrable Securities may be sold under the Act as
promptly as practicable thereafter, and the Company will use its best efforts to
cause such registration to become effective; provided that the Holder shall
furnish the Company with appropriate information (relating to the intentions of
the Holder and/or of its members and the identity of its members), in connection
therewith as the Company shall reasonably request in writing. The Company shall
use its best efforts to keep the registration statement current for a period of
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nine months or until all Registrable Securities registered thereunder have been
sold, which ever is sooner. If at the time of the request, the Company has fixed
plans to engage within 30 days of the date of the request a registered public
offering which in the good faith opinion of the Board of Directors, would be
adversely affected by the requested registration, then the Company may direct
that the request be delayed for a period not to exceed 90 days from the
effective date of such registration or material activity. All such requests
pursuant to this Section 2(a) are referred to herein as Demand Registration
Rights.
(b) If, at any time, the Company proposes or is required to register any of
its equity securities or securities convertible or exchangeable for equity
securities under the Securities Act (other than pursuant to (i) registration on
such form or similar form(s) solely for registration of securities in connection
with an employee benefit plan or dividend reinvestment plan, Form S-8 or (ii) a
merger, consolidation or acquisition, Form S-4) on a registration statement on
Form SB-2, Form S-1 or Form S-3 (or an equivalent general registration form then
in effect), whether or not for its own account, the Company shall give prompt
written notice of its intention to do so to each of the Holders of record of
Registrable Securities. Upon the written request of any Holder, made within 10
days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), the Company
shall use its best efforts to cause all such Registrable Securities, the Holders
of which have so requested the registration thereof, to be registered under the
Securities Act (with the securities which the Company at the time proposes to
register) to permit the sale or other disposition by the Holders (in accordance
with the intended method of distribution thereof) of the Registrable Securities
to be so registered. There is no limitation on the number of piggyback
registrations pursuant to the preceding sentence which the Company is obligated
to effect. No registration effected under this Section 2(b) shall relieve the
Company of its obligation to effect one Demand Registration for the Holder under
Section 2(a) hereof.
(c) The Holder's rights under this paragraph shall be subject of the
limitation that, in the event that the Company files a Registration Statement
for an underwritten public offering or if another Holder initiates a
Registration, intending to distribute their Shares in an Underwritten Offering,
the inclusion of the Registrable Securities shall be upon the condition that:
(i) if requested by the managing underwriter as a condition of the offering,
they be sold through the underwriters on the same terms and conditions as are
applicable to the Company or all other selling stockholders of the Company; or
(ii) if such condition is imposed by the managing underwriter, and the Holder
does not wish to sell the Registrable Securities upon such terms and conditions,
the Holder will agree not to transfer or otherwise dispose of any Registrable
Securities for a period of time from the effective date of the Registration
Statement (not to exceed 120 days) specified by the managing underwriter.
(d) At the election of the Holder, the Registrable Securities may be
registered on behalf of the Holder or the Holders members on a pro rata basis
based on their percentage of ownership of the Note.
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(e) All registration rights under this paragraph 2, shall terminate on
March 1, 2006.
3. REGISTRATION PROCEDURES.
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If and whenever the Company is required by the provisions of this Agreement
to use its best efforts to effect the registration of any of the Registrable
Securities under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the Commission any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than nine months from
the effective date;
(c) as expeditiously as possible furnish to Holder such reasonable numbers
of copies of the prospectus, including a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents as the
selling Stockholder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities owned by the selling
Stockholder and promptly notify the selling stockholder at any time when a
prospectus is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus would include an
untrue statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Securities covered by the Registration Statement under
the securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Securities
owned by the selling Stockholder; provided, however, that the Company shall not
be required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
Holder and, after having done so, the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the Holder
and, if requested, the Holder shall immediately cease making offers of
Registrable Securities and return all prospectuses to the Company. The Company
shall promptly provide the Holder with revised prospectuses and, following
receipt of the revised prospectuses, the Holder shall be free to resume making
offers of the Registrable Securities.
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4. ALLOCATION OF EXPENSES.
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The Company will pay all Registration Expenses of all registrations under
this Agreement; provided, however, that if a registration filed pursuant to
demand made by holder under Section 2(a) above is withdrawn at the request of
the Holder (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Holder after the
date on which such registration was requested) and if the Holder elects not to
have such registration counted as a registration requested under Section 2(a),
the Holder shall pay the portion of Registration Expenses in the proportion that
the market value of their Registrable Securities included in such registration
bear to all of securities included therein. For purposes of this Section, the
term "Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company state Blue Sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts, selling commissions and the
fees and expenses of Holder's own counsel.
5. INDEMNIFICATION.
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In the event of any registration of any of the Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will indemnify and
hold harmless the seller of such Registrable Securities, and its directors and
officers, each underwriter of such Registrable Securities, and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, in so far as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, and any document incorporated therein
by reference or arise out of or are based upon the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
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In the event of any registration of any of the Registrable Securities under
the Securities Act pursuant to this Agreement, each seller of Registrable
Securities, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriters or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the preparation
of such Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of such seller hereunder shall be limited to an
amount equal to the proceeds to such Stockholder from Registrable Securities
sold as contemplated herein.
Each party entitled to Indemnification under this paragraph 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; providing, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
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6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING.
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In the event that Registrable Securities are sold pursuant to a
Registration Statement in an underwritten offering pursuant to sub-paragraph
2(a) or 2(b), the Company agrees to enter into an underwriting agreement
containing customary representations and warranties with respect to the business
and operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including without
limitation customary provisions with respect to indemnification by the Company
of the underwriters of such offering.
7. INFORMATION BY HOLDER.
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The Holder shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
8. SELECTION OF UNDERWRITER.
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In the case of any registration effected pursuant to this Agreement, the
Company shall have the right to designate the managing underwriter in any
underwritten offering.
9. SUCCESSORS AND ASSIGNS.
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The provisions of this Agreement shall be binding upon, and inure to the
benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto.
10. FURTHER ASSURANCES.
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From and after the date hereof, all persons subject to or bound by this
Agreement shall from time to time, at the request of any such other person and
without further consideration, do, execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may
reasonably be requested or required more effectively to evidence and give effect
to the provisions, intent and purposes of this Agreement (including, without
limitation, certificates to the effect that this Agreement continues operative
and as to any defaults hereunder or modifications hereof).
11. NOTICE.
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All notices, requests, demands, offerings, acceptances, consents and other
communications required or permitted under this Agreement shall, unless
otherwise provided, be in writing and shall be deemed to have been duly given if
personally delivered and actually received or if mailed by first class
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registered or certified mail, return receipt requested, or by first class mail,
addressed to the parties hereto at their respective addresses set forth on the
first page of this Agreement or in each case to such other person or address as
may be designated by notice hereunder. Any such notice, etc. shall be deemed
given on the date of delivery, if delivered, or on the fifth day after the date
of mailing, if mailed.
12. GOVERNING LAW; INTERPRETATION.
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(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Florida applicable to contracts made
and to be performed exclusively therein as to all matters, without reference to
the conflicts of law provision thereof.
(b) All pronouns and words shall be read in appropriate number and gender,
the masculine, feminine and neuter shall be interpreted interchangeably and
singular shall include the plural and vice versa, as the circumstances may
require.
13. SUBMISSION TO JURISDICTION.
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Each of the parties hereto irrevocably submits to the non-exclusive
jurisdiction of the federal and state courts located in the State of Florida,
Connecticut and New York.
14. The Company represents that it has not offered superior or more
advantageous registration rights to any other shareholder, but that if it does
so it will offer the same rights to Holder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals to this instrument, as of the date first above written.
PETCARE TELEVISION NETWORK, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President
and CEO
HOLDER:
PET EDGE, LLC
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, President
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