AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (as
amended, modified, restated and/or supplemented from time to time, this
"Agreement") is made and entered into as of December 22, 2006, by and between
XxxxXxx.xxx Inc., a Delaware (the "Company"), and Laurus Master Fund, Ltd. (the
"Purchaser").
This Agreement is made (i) pursuant to the Securities Purchase
Agreement, dated as of June 30, 2006, by and among the Purchaser and the Company
(as amended, modified, restated or supplemented from time to time, the "Purchase
Agreement"), and pursuant to the Warrants referred to (and as defined) therein,
(ii) pursuant to the Securities Purchase Agreement dated as of the date hereof,
by and among the Purchaser and the Company (as amended, modified, restated or
supplemented from time to time, the "Second Purchase Agreement") and pursuant to
the Warrants referred to (and as defined) therein; and (iii) pursuant to that
certain Letter Agreement dated December 22, 2006 (the "Letter Agreement") and
pursuant to the Warrants referred to (and as defined) therein.
The Company and the Purchaser hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein that are defined in the Purchase Agreement shall have the
meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means shares of the Company's common stock, par
value $0.001 per share.
"EFFECTIVENESS DATE" means, (i) with respect to the
Registration Statement required to be filed in connection with the Common Stock
underlying Warrants issued on the date hereof, a date no later than two hundred
seventy (270) days following such date, subject to the provisions of the Warrant
Side Letter, and (ii) with respect to each additional Registration Statement
required to be filed hereunder (if any), a date no later than thirty (30) days
following the applicable Filing Date (provided that if such registration
statement is reviewed by Commission, such period shall be extended to 270 days).
"EFFECTIVENESS PERIOD" has the meaning set forth in Section
2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"FILING DATE" means, with respect to (1) the Registration
Statement required to be filed in connection with the shares of Common Stock
issuable to the Holder upon due and timely exercise of a Warrant, the date which
is one hundred twenty (120) days after the issuance of such Warrant, and (2) the
Registration Statement required to be filed in connection with the
shares of Common Stock issuable to the Holder as a result of adjustments to the
Exercise Price made pursuant to Section 4 of the Warrant or otherwise, thirty
(30) days after the occurrence of such event or the date of the adjustment of
the Exercise Price.
"HOLDER" or "HOLDERS" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities,
other then those purchasing Registrable Securities in a market transaction.
"INDEMNIFIED PARTY" has the meaning set forth in Section 5(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section
5(c).
"LETTER AGREEMENT" has the meaning set forth in the preamble
hereto.
"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 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 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 such 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.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"REGISTRABLE SECURITIES" means the shares of Common Stock
issuable upon the exercise of the Warrants; PROVIDED THAT upon the sale of any
such shares in the market such shares shall no longer be Registrable Securities.
"REGISTRATION STATEMENT" means each registration statement
required to be filed hereunder, including the Prospectus therein, amendments and
supplements to 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 such registration
statement.
"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 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.
"SECOND PURCHASE AGREEMENT" has the meaning set forth in the
preamble hereto.
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"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute.
"TRADING MARKET" means any of the NASD Over The Counter
Bulletin Board, NASDAQ Capital Market, the NASDAQ National Market, the American
Stock Exchange or the New York Stock Exchange
"WARRANTS" means (i) Warrant A, Warrant B and Warrant C issued
in connection with the Purchase Agreement, as such terms are defined in the
Purchase Agreement, whether on the date thereof or thereafter; (ii) the
"Warrants" as such term is defined in the Purchase Agreement; and (iii) the
"Warrants" as such term is defined in the Letter Agreement.
2. REGISTRATION.
(a) On or prior to each Filing Date, the Company shall prepare
and file with the Commission a Registration Statement covering the Registrable
Securities for a selling stockholder resale offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement shall be on Form S-3
(except if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration shall be on
another appropriate form in accordance herewith, subject to the provisions of
Section 2(b)).. The Company shall cause each Registration Statement to become
effective and remain effective as provided herein. The Company shall use its
best efforts to cause each Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in any
event no later than the Effectiveness Date. The Company shall use its reasonable
commercial efforts to keep each Registration Statement continuously effective
under the Securities Act until the date which is the earlier date of when (i)
all Registrable Securities covered by such Registration Statement have been sold
or (ii) all Registrable Securities covered by such Registration Statement may be
sold immediately without registration under the Securities Act and without
volume restrictions pursuant to Rule 144(k), as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent and the affected Holders (each, an
"Effectiveness Period").
(b) In the event that Form S-3 is not available for the
registration of the resale of the Registrable Securities hereunder, the Company
shall (i) register the resale of the Registrable Securities on another
appropriate form reasonably acceptable to the Purchaser and undertake to
register the Registrable Securities on Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of the
Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the Commission.
(c) Within three business days of the date on which the
Commission declares effective any Registration Statement, the Company shall
cause its counsel to issue a blanket opinion in the form attached hereto as
Exhibit A, to the transfer agent stating that the Registrable Securities subject
to such Registration Statement are subject to an effective registration
statement and can be reissued free of restrictive legend upon notice of a sale
by the Purchaser and confirmation by the Purchaser that it has complied with the
prospectus delivery requirements,
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provided that the Company has not advised the transfer agent orally or in
writing that the opinion has been withdrawn. Copies of the blanket opinion
required by this Section 2(c) shall be delivered to the Purchaser within the
time frame set forth above.
3. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions hereof to effect the registration of any Registrable
Securities under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities, respond as promptly as
possible to any comments received from the Commission, and use its best efforts
to cause such Registration Statement to become and remain effective for the
Effectiveness Period with respect thereto, and promptly provide to the Purchaser
copies of all filings and Commission letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by
such Registration Statement and to keep such Registration Statement effective
until the expiration of the Effectiveness Period applicable to such Registration
Statement;
(c) furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein (including each
preliminary Prospectus) as the Purchaser reasonably may request to facilitate
the public sale or disposition of the Registrable Securities covered by such
Registration Statement;
(d) use its best efforts to register or qualify the
Purchaser's Registrable Securities covered by such Registration Statement under
the securities or "blue sky" laws of such jurisdictions within the United States
as the Purchaser may reasonably request, provided, however, that the Company
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such
Registration Statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event 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; and
(g) make available for inspection by the Purchaser and any
attorney, accountant or other agent retained by the Purchaser, all publicly
available, non-confidential financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all publicly available, non-
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confidential information reasonably requested by the attorney, accountant or
agent of the Purchaser.
4. REGISTRATION EXPENSES. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, 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 NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders are called "Registration Expenses". All selling
commissions applicable to the sale of Registrable Securities, including any fees
and disbursements of any special counsel to the Holders beyond those included in
Registration Expenses, are called "Selling Expenses." The Company shall only be
responsible for all Registration Expenses.
5. INDEMNIFICATION.
(a) In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless each Holder, and its officers, directors and each
other person, if any, who controls such Holder within the meaning of the
Securities Act, against any losses, claims, damages, expenses (including
reasonable legal fees) or liabilities, joint or several, to which such Holder or
such persons may become subject under the Securities Act or otherwise
(collectively, "Holder Losses"), insofar as such Holder Losses (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
pursuant to this Agreement, any preliminary Prospectus or final Prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse such Holder, and each such person for any
reasonable legal or other expenses incurred by them 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 if and
to the extent that any Holder Losses (a) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by or on behalf of the Purchaser
or any such person in writing, or (b) are occasioned by the gross negligence,
willful misconduct or bad faith of any such indemnified person as finally
determined pursuant to applicable law.
(b) In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the Purchaser
will indemnify and hold harmless the Company, and its officers, directors and
each other person, if any, who controls the Company within the meaning of the
Securities Act, against all losses, claims, damages, expenses (including
reasonable legal fees) or liabilities, joint or several, to which the Company or
such persons may become subject under the Securities Act or otherwise
(collectively, "Company Losses"), insofar as such Company Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact which was furnished in writing by the
Purchaser to the Company expressly for use in (and such information is contained
in) the Registration Statement under which such Registrable Securities were
registered under the
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Securities Act pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and each such person for
any reasonable legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that the Purchaser will be liable in any such case if and
only to the extent that any such Company Losses (a) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished in writing to the
Company by or on behalf of the Purchaser specifically for use in any such
document or (b) are occasioned by the gross negligence, willful misconduct or
bad faith of any such indemnified person as finally determined pursuant to
applicable law. Notwithstanding the provisions of this paragraph, the Purchaser
shall not be required to indemnify any person or entity in excess of the amount
of the aggregate net proceeds received by the Purchaser in respect of
Registrable Securities in connection with any such registration under the
Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the commencement
of any action, such Indemnified Party shall, if a claim for indemnification in
respect thereof is to be made against a party hereto obligated to indemnify such
Indemnified Party (an "Indemnifying Party"), notify the Indemnifying Party in
writing thereof, but the omission so to notify the Indemnifying Party shall not
relieve it from any liability which it may have to such Indemnified Party other
than under this Section 5(c) and shall only relieve it from any liability which
it may have to such Indemnified Party under this Section 5(c) if and to the
extent the Indemnifying Party is prejudiced by such omission. In case any such
action shall be brought against any Indemnified Party and it shall notify the
Indemnifying Party of the commencement thereof, the Indemnifying Party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such Indemnified
Party, and, after notice from the Indemnifying Party to such Indemnified Party
of its election so to assume and undertake the defense thereof, the Indemnifying
Party shall not be liable to such Indemnified Party under this Section 5(c) for
any legal expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof; if the Indemnified Party retains its own counsel, then
the Indemnified Party shall pay all fees, costs and expenses of such counsel,
PROVIDED, HOWEVER, that, if the defendants in any such action include both the
Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the Indemnifying
Party or if the interests of the Indemnified Party reasonably may be deemed to
conflict with the interests of the Indemnifying Party, the Indemnified Party
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the Indemnifying Party as incurred.
(d) In order to provide for just and equitable contribution in
the event of joint liability under the Securities Act in any case in which
either (i) the Purchaser, or any officer, director or controlling person of the
Purchaser, makes a claim for indemnification pursuant to this Section 5 but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial of
the last right of
6
appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 5 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of the Purchaser or such officer, director or controlling person of the
Purchaser in circumstances for which indemnification is provided under this
Section 5; then, and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that the
Purchaser is responsible only for the portion represented by the percentage that
the public offering price of its securities offered by the Registration
Statement bears to the public offering price of all securities offered by such
Registration Statement, PROVIDED, HOWEVER, that, in any such case, (A) the
Purchaser will not be required to contribute any amount in excess of the public
offering price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
6. REPRESENTATIONS AND WARRANTIES. The Company hereby represents
and warrants to the Purchaser as follows as of the date hereof (unless an
earlier date is indicated):
(a) The Common Stock is registered pursuant to Section 12(b)
or 12(g) of the Exchange Act and, except with respect to certain matters which
the Company has disclosed to the Purchaser on SCHEDULE 4.21 to the Purchase
Agreement or SCHEDULE 4.21 to the Second Purchase Agreement, the Company has
timely filed all proxy statements, reports, schedules, forms, statements and
other documents required to be filed by it under the Exchange Act. The Company
has filed (i) its Annual Report on Form 10-K for the fiscal year ended June 30,
2005 and (ii) its Quarterly Report on Form 10-Q for the fiscal quarters ended
December 30, 2005, (collectively, the "SEC Reports"). Each SEC Report was, at
the time of its filing, in substantial compliance with the requirements of its
respective form and none of the SEC Reports, nor the financial statements (and
the notes thereto) included in the SEC Reports, as of their respective filing
dates, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Reports
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis during the periods involved (except (i)
as may be otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed) and fairly present in all material
respects the financial condition, the results of operations and the cash flows
of the Company and its subsidiaries, on a consolidated basis, as of, and for,
the periods presented in each such SEC Report. The Common Stock is currently
quoted for trading on the Pink Sheets, but shall, pursuant to Section 6.2 of the
Purchase Agreement and Section 6.2 of the Second Purchase Agreement, be quoted
for trading on a Trading Market within twelve (12) months of the date hereof.
After such date, the Company shall do all things necessary for the continuation
of such listing.
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(b) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales of any security or solicited any offers to buy any security (other than
as set forth on SCHEDULE 6(B) hereto) under circumstances that would cause the
offering of the Securities pursuant to the Purchase Agreement, the Second
Purchase Agreement or the Letter Agreement to be integrated with prior offerings
by the Company for purposes of the Securities Act which would prevent the
Company from selling the Common Stock pursuant to Rule 506 under the Securities
Act, or any applicable exchange-related stockholder approval provisions, nor
will the Company or any of its affiliates or subsidiaries take any action or
steps that would cause the offering of the Common Stock to be integrated with
other offerings (other than such concurrent offering to the Purchaser).
(c) The Warrants and the shares of Common Stock that the
Purchaser may acquire pursuant to the Warrants are all restricted securities
under the Securities Act as of the date of this Agreement. The Company will not
issue any stop transfer order or other order impeding the sale and delivery of
any of the Registrable Securities after such time as such Registrable Securities
are registered for public sale or an exemption from registration is available,
except as required by federal or state securities laws.
(d) The Company understands the nature of the Registrable
Securities issuable upon the exercise of each Warrant and recognizes that the
issuance of such Registrable Securities may have a potential dilutive effect.
The Company specifically acknowledges that its obligation to issue the
Registrable Securities is binding upon the Company and enforceable regardless of
the dilution such issuance may have on the ownership interests of other
shareholders of the Company.
(e) Except for agreements made in the ordinary course of
business or as disclosed in the schedules to the Purchase Agreement or the
Second Purchase Agreement, there is no agreement that has not been filed with
the Commission as an exhibit to a registration statement or to a form required
to be filed by the Company under the Exchange Act, the breach of which could
reasonably be expected to have a material and adverse effect on the Company and
its subsidiaries, or would prohibit or otherwise interfere with the ability of
the Company to enter into and perform any of its obligations under this
Agreement in any material respect.
(f) As of the nine-month anniversary of the date hereof, the
Company will at all times have authorized and reserved a sufficient number of
shares of Common Stock for the full exercise of the Warrants.
7. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement, each Holder
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, will be entitled to specific performance of its rights under this
Agreement.
(b) NO PIGGYBACK ON REGISTRATIONS. Except as and to the extent
set forth in on Schedule 7(b) hereto or in any Securities Filings filed as of
the date hereof, neither the
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Company nor any of its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in any Registration
Statement other than the Registrable Securities, and the Company shall not after
the date hereof enter into any agreement providing any such right for inclusion
of shares in the Registration Statement to any of its security holders. Except
and as to the extent specified in Schedule 7(b) hereto or in any Securities
Filings filed as of the date hereof, the Company has not previously entered into
any agreement granting any registration rights with respect to any of its
securities to any Person that have not been fully satisfied.
(c) COMPLIANCE. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities pursuant to
any Registration Statement.
(d) DISCONTINUED DISPOSITION. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a notice from
the Company of the occurrence of a Discontinuation Event (as defined below),
such Holder will forthwith discontinue disposition of such Registrable
Securities under the applicable Registration Statement until such Holder's
receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement 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. The Company may provide appropriate stop orders to enforce the
provisions of this paragraph. For purposes of this Agreement, a "Discontinuation
Event" shall mean (i) when the Commission notifies the Company whether there
will be a "review" of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement (the Company shall provide
true and complete copies thereof and all written responses thereto to each of
the Holders); (ii) any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the issuance by the
Commission of any stop order suspending the effectiveness of such Registration
Statement covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) 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/or (v) the occurrence of any event or passage of time that makes
the financial statements included in such Registration Statement ineligible for
inclusion therein or any statement made in such 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 such
Registration Statement, Prospectus or other documents so that, in the case of
such Registration Statement or 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 light of the circumstances under which they were made, not misleading.
(e) PIGGY-BACK REGISTRATIONS. If at any time after the date
hereof there is not an effective Registration Statement covering all of the
Registrable Securities required to be covered hereunder and the Company shall
determine to prepare and file with the Commission a
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registration statement relating to an offering for its own account or the
account of others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) 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 stock option or other employee benefit
plans, then the Company shall send to each Holder written notice of such
determination and, if within fifteen (15) days after receipt of such notice, any
such Holder shall so request in writing, the Company shall include in such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered, to the extent the Company may do so without
violating registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable to all holders
of registration rights and subject to obtaining any required consent of any
selling stockholder(s) to such inclusion under such registration statement.
(f) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of the majority of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
certain Holders and that does not directly or indirectly affect the rights of
other Holders may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates; PROVIDED, HOWEVER, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(g) NOTICES. Any notice or request hereunder may be given to
the Company or the Purchaser at the respective addresses set forth below or as
may hereafter be specified in a notice designated as a change of address under
this Section 7(g). Any notice or request hereunder shall be given by registered
or certified mail, return receipt requested, hand delivery, overnight mail,
Federal Express or other national overnight next day carrier (collectively,
"Courier") or telecopy (confirmed by mail). Notices and requests shall be, in
the case of those by hand delivery, deemed to have been given when delivered to
any party to whom it is addressed, in the case of those by mail or overnight
mail, deemed to have been given three (3) business days after the date when
deposited in the mail or with the overnight mail carrier, in the case of a
Courier, the next business day following timely delivery of the package with the
Courier, and, in the case of a telecopy, when confirmed. The address for such
notices and communications shall be as follows:
IF TO THE COMPANY: XxxxXxx.xxx, Inc.
000 Xxxxxxx 0, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: 203-295-2102
WITH A COPY TO:
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Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 212-704-6160
IF TO A PURCHASER: To the address set forth under such
Purchaser name on the signature
pages hereto.
IF TO ANY OTHER PERSON
WHO IS THEN THE REGISTERED
HOLDER: To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter in accordance
with this Section 7(g) by such Person.
(h) 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 and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
each Holder. Each Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Purchase Agreement and the
Second Purchase Agreement.
(i) EXECUTION AND COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and, all of which taken together shall constitute one and the
same agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(j) GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. The Company hereby
consents and agrees that the state or federal courts located in the County of
New York, State of New York shall have non-exclusion jurisdiction to hear and
determine any Proceeding between the Company, on the one hand, and the
Purchaser, on the other hand, pertaining to this Agreement or to any matter
arising out of or related to this Agreement; PROVIDED, that the Purchaser and
the Company acknowledge that any appeals from those courts may have to be heard
by a court located outside of the County of New York, State of New York, and
FURTHER PROVIDED, that nothing in this Agreement shall be deemed or operate to
preclude the Purchaser from bringing a Proceeding in any other jurisdiction to
collect the obligations, to realize on the Collateral or any other security for
the obligations, or to enforce a judgment or other court order in favor of the
Purchaser. The Company expressly submits and consents in advance to such
jurisdiction in any Proceeding commenced in any such court, and the Company
hereby waives any objection which it may have based upon lack of personal
jurisdiction, improper venue or FORUM NON CONVENIENS. The Company hereby waives
personal service of the summons, complaint and other process issued in any such
Proceeding and
11
agrees that service of such summons, complaint and other process may be made via
Federal Express or by registered or certified mail addressed to the Company at
the address set forth in Section 7(g) and that service so made shall be deemed
completed upon the earlier of the Company's actual receipt thereof or four (4)
days after deposit in the U.S. mails, proper postage prepaid in accordance with
the Purchase Agreement and the Second Purchase Agreement. The parties hereto
desire that their disputes be resolved by a judge applying such applicable laws.
Therefore, to achieve the best combination of the benefits of the judicial
system and of arbitration, the parties hereto waive all rights to trial by jury
in any Proceeding brought to resolve any dispute, whether arising in contract,
tort, or otherwise between the Purchaser and/or the Company arising out of,
connected with, related or incidental to the relationship established between
then in connection with this Agreement. If either party hereto shall commence a
Proceeding to enforce any provisions of this Agreement, the Purchase Agreement,
the Second Purchase Agreement or any Related Agreement (as such term is defined
in the Purchase Agreement or the Second Purchase Agreement), then the prevailing
party in such Proceeding shall be reimbursed by the other party for its
reasonable attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such Proceeding.
(k) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is finally determined 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 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.
(m) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(n) ENTIRE AGREEMENT. This Agreement, and the exhibits and
schedules hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof, and
supersede and completely replace any and all (and no party shall be liable or
bound to any other in any manner by any) prior or other representations,
warranties, covenants, promises, assurances or other agreements or
understandings (whether written, oral, express, implied or otherwise) except as
specifically set forth herein and therein.
[Balance of page intentionally left blank; signature page follows]
12
EXHIBIT A
____________, 200___
[Transfer Agent]
Two Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx]
Re: XXXXXXX.XXX, INC. REGISTRATION STATEMENT ON FORM [S-3]
Ladies and Gentlemen:
As counsel to XxxxXxx.xxx, Inc. , a _____________ (the "Company"), we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on SCHEDULE A attached hereto (the
"Selling Stockholders"), of an aggregate of __________ shares (the "Shares") of
the Company's Common Stock.
A Registration Statement on Form [S-3] under the Securities Act of
1933, as amended (the "Act"), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on [date]. Enclosed
is the Prospectus dated [date]. We understand that the Shares are to be offered
and sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at
any time while the registration statement remains effective, it is our opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration by the
Selling Stockholders may be issued without restrictive legend. We will advise
you if the registration statement is not available or effective at any point in
the future.
Very truly yours,
[Company counsel]
SCHEDULE A TO EXHIBIT A
Shares
Selling Stockholder R/N/O Being Offered
------------------- ----- -------------
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
XXXXXXX.XXX
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
LAURUS MASTER FUND, LTD.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Address for Notices:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Grin
Facsimile: 000-000-0000
