REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
made and entered into as of August __, 2004, by and among INYX,
Inc. (the "Company") and each purchaser named on the signature
pages hereto (each a "Purchaser" and collectively, the
"Purchasers").
This Agreement is made pursuant to the Subscription
Agreement, dated as of the date hereof, by and between the
Company and the Purchaser (the "Subscription Agreement"),
submitted in accordance with and subject to the terms and
conditions described in the Subscription Agreement and the
Confidential Investor Proposal of the Company dated August 11,
2004, as amended or supplemented from time to time, including all
documents incorporated by reference therein and all attachments,
schedules and exhibits thereto (the "Investment Proposal"),
relating to the offering (the "Offering") by the Company of a
minimum amount of 40 Units ($4,000,000) (the "Minimum Amount")
and a maximum amount of 70 Units ($7,000,000) (the "Maximum
Amount").
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein that are defined in the Subscription Agreement
shall have the meanings given such terms in the Subscription
Agreement. As used in this Agreement, the following terms shall
have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means common stock of the Company, $0.001 par
value per share.
"Effectiveness Date" means, with respect to the Registration
Statement required to be filed hereunder, no later than one
hundred twenty (120) calendar days following the Final Closing
Date.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means, with respect to the Registration
Statement required to be filed hereunder, no later than forty-
five (45) calendar days following the Final Closing Date.
"Final Closing Date" means the date of the Final Closing (as
defined in the Investment Proposal) of the Offering.
"Holder" or "Holders" means the holder or holders, as the
case may be, from time to time of Registrable Securities
(including any permitted assignee).
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
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"Losses" shall have the meaning set forth in Section 5(a).
"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 or deemed to be incorporated by reference in such
Prospectus.
"Registrable Securities" means the Shares, the Warrant
Shares and any shares of Common Stock issued or issuable upon any
stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing or in connection with
any provisions in the Warrants.
"Registration Statement" means the registration statements
required to be filed hereunder (which, at the Company's option,
may be an existing registration statement of the Company
previously filed with the Commission, but not declared
effective), including (in each case) the Prospectus, amendments
and supplements to the 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 the registration statement.
"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 Act" means the Securities Act of 1933, as
amended.
"Trading Day" means a day on which the principal exchange on
which the Common Stock is then listed is open for purposes of
trading securities.
2. Registration.
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(a) Mandatory Registration. No later than the Filing Date,
the Company shall prepare and file with the Commission the Registration
Statement covering the resale of all of the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement required hereunder shall be on Form SB-1 or
Form SB-2 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form SB-1 or Form SB-2, in which
case the Registration shall be on another appropriate form in
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accordance herewith). The Registration Statement required
hereunder shall contain the Plan of Distribution, attached hereto
as Annex A (which may be modified to respond to comments, if any,
received by the Commission). The Company shall cause the
Registration Statement to become effective and remain effective
as provided herein. The Company shall use its best efforts to
cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing
thereof and shall use its best efforts to keep the Registration
Statement continuously effective under the Securities Act until
the earlier date when all Registrable Securities covered by the
Registration Statement (a) have been sold pursuant to the
Registration Statement or an exemption from the registration
requirements of the Securities Act or (b) may be sold pursuant to
Rule 144(k) (the "Effectiveness Period").
(b) Filing Default Damages. If a Registration Statement is
not filed on or prior to the Filing Date, then the Company shall pay
to the Holder, for each thirty (30) day period of such failure
and until the date a Registration Statement is filed and/or the
Registrable Securities may be sold pursuant to Rule 144(k), as
the case may be, an amount in cash, as partial liquidated damages
and not as a penalty, equal to two (2%) percent of the aggregate
Issue Price (as defined in the Subscription Agreement) paid by
the Holder for the Company's securities pursuant to the
Subscription Agreement.
(c) Effectiveness Default Damages. If a Registration Statement
is not declared effective by the Company on or prior to the
Effectiveness Date, then the Company shall pay to the Holder, for
each thirty (30) day period until the Registration Statement is
declared effective, an amount in cash, as partial liquidated
damages and not as a penalty, equal to two (2%) percent of the
aggregate Issue Price paid by the Purchaser for the Company's
securities pursuant to the Subscription Agreement.
(d) Piggyback Registrations Rights. If, at any time during
the Effectiveness Period, there is not an effective Registration
Statement covering the Registrable Securities (other than the
Registrable Securities of a Holder that failed to comply with its
obligations under Section 3(j) hereof), and the Company shall
determine to prepare and file with the Commission a 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 a written notice of such determination at least twenty
(20) days prior to the filing of any such registration statement
and, if within ten (10) days after receipt by a Holder, the
Company shall receive a request in writing from any such Holder,
the Company shall include in such registration statement all or
any part of such Registrable Securities such Holder requests to
be registered; provided, however, that (i) if, at any time after
giving written notice of is intention to register any securities
and prior to the effective date of the registration statement
filed in connection with such registration, the Company
determines for any reason not to proceed with such registration,
the Company will be relieved of its obligation to register any
Registrable Securities in connection with such registration, and
(ii) in case of a determination by the Company to delay
registration of its securities, the Company will be permitted to
delay the registration of Registrable Securities for the same
period as the delay in registering such other securities.
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3. Registration Procedures. In connection with the Company's
registration obligations hereunder, the Company shall:
(a) 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 furnish to the
Holder a draft of the Registration Statement.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration
Statement and the Prospectus used in connection therewith as may
be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the
Effectiveness Period; (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; and (iii) respond to any comments received from the
Commission with respect to the Registration Statement or any
amendment thereto.
(c) Notify the Holders of Registrable Securities to be sold
as promptly as reasonably possible: (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review"
of the Registration Statement and whenever the Commission
comments in writing on the Registration Statement (the Company
shall upon request provide true and complete copies thereof and
all written responses thereto to each of the Holders, subject, if
appropriate, to the execution of confidentiality agreements in
form acceptable to the Company); and (C) with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission
or any other Federal or state governmental authority during the
period of effectiveness of the Registration Statement for
amendments or supplements to the Registration Statement or
Prospectus or for additional information; (iii) of the issuance
by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose;
(iv) 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 (v) of the occurrence of any
event or passage of time that makes the financial statements
included in the Registration Statement ineligible for inclusion
therein or 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 light of the
circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (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, at the earliest practicable moment.
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(e) Promptly deliver to each Holder no later than five (5)
business days after the Effectiveness Date, without charge, two
(2) copies of the Prospectus or Prospectuses (including each form
of prospectus) and each amendment or supplement thereto (and,
upon the request of the Holder such additional copies as such
Persons may reasonably request in connection with resales by the
Holder of Registrable Securities). The Company hereby consents to
the use of such Prospectus and each amendment or supplement
thereto by the Holder in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto, except after the giving of any
notice pursuant to Section 3(c).
(f) Prior to any resale of Registrable Securities by a Holder,
use its best efforts to register or qualify or cooperate with the
selling Holders in connection with the registration or
qualification (or exemption from the registration or
qualification) of such Registrable Securities for the resale by
the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably
requests in writing, to keep such registration or qualification
(or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the
Registrable Securities covered by the 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, subject the Company to any material tax in
any such jurisdiction where it is not then so subject or file a
general consent to service of process in any such jurisdiction.
(g) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably 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 light of the
circumstances under which they were made, not misleading.
(h) Use its best efforts to comply with all applicable rules
and regulations of the Commission relating to the registration of the
Registrable Securities pursuant to the Registration Statement or
otherwise.
(i) The Company agrees that the Selling Shareholder
Questionnaire attached hereto as Exhibit A, satisfies all of the
information required to be provided by each Holder in connection
with the Registration Statement. The Company shall not be
required to include any Holder that does not complete, date and
execute a Selling Shareholder Questionnaire.
(j) The Company shall either (a) cause all the Registrable
Securities covered by a Registration Statement to be listed on
each securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the
listing of such Registrable Securities is then permitted under
the rules of such exchange, or (b) secure designation and
quotation of all the Registrable Securities covered by the
Registration Statement on the Nasdaq National Market or the
Nasdaq SmallCap Market, or, (c) if the Company is unsuccessful in
satisfying the preceding clauses (a) or (b), the Company shall
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secure the inclusion for quotation on The American Stock
Exchange, Inc. or if it is unable to, the Over The Counter
Bulletin Board for such Registrable Securities and, without
limiting the generality of the foregoing, to arrange for at least
two (2) market makers to register with the National Association
of Securities Dealers, Inc. ("NASD") as such with respect to such
Registrable Securities. The Company shall pay all fees and
expenses in connection with satisfying its obligation under this
Section 3(j).
(k) The Company covenants that it shall file the reports
required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC
thereunder so long as the Holder owns any Registrable Securities,
but in no event longer than two (2) years; provided, however, the
Company may delay any such filing but only pursuant to Rule 12b-
25 under the Exchange Act, and the Company shall take such
further reasonable action as the Holder may reasonably request
(including, without limitation, promptly obtaining any required
legal opinions from Company counsel necessary to effect the sale
of Registrable Securities under Rule 144 and paying the related
fees and expenses of such counsel), all to the extent required
from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144 under
the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
4. Registration Expenses. All fees and expenses incident to
the performance of or compliance with this Agreement by the
Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration
Statement, other than fees and expenses of counsel or any other
advisor retained by the Holders and discounts and commissions
with respect to the sale of any Registrable Securities by the
Holders. 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 the Trading
Market on which the Common Stock is then listed for trading, and
(B) in compliance with applicable state securities or Blue Sky
laws), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities and
of printing prospectuses if the printing of prospectuses is
reasonably requested by the holders of a majority of the
Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act
liability insurance, if the Company so desires such insurance,
and (vi) fees and expenses of all other Persons retained by the
Company in connection with the consummation of the transactions
contemplated by this Agreement.
5. Indemnification
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and
hold harmless the Holder, the officers, directors, agents and
employees of it, each Person who controls the Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, agents and employees
of each such controlling Person, to the fullest extent permitted
by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation,
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reasonable attorneys' fees) and expenses (including the cost
(including without limitation, reasonable attorneys' fees) and
expenses relating to an Indemnified Party's actions to enforce
the provisions of this Section 5) (collectively, "Losses"), as
incurred, to the extent arising out of or relating to any untrue
or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that (1) such
untrue statements or omissions are based solely upon information
regarding such Holder furnished (or in the case of an omission,
not furnished) in writing to the Company by or on behalf of such
Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed
and expressly approved in writing by such Holder expressly for
use in the Registration Statement, such Prospectus or such form
of Prospectus or in any amendment or supplement thereto (it being
understood that the Holder has approved Annex A hereto for this
purpose), (2) in the case of an occurrence of an event of the
type specified in Section 3(c)(ii)-(v), the use by such Holder of
an outdated or defective Prospectus after the Company has
notified such Holder in writing that the Prospectus is outdated
or defective and prior to the receipt by such Holder of the
Advice contemplated in Section 6(d), or (3) the failure of the
Holder to deliver a prospectus prior to the confirmation of a
sale. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the
Company is aware in connection with the transactions contemplated
by this Agreement.
(b) Indemnification by Holder. The Holder shall indemnify and
hold harmless the Company, its directors, officers, agents and
employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees
of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, to the
extent arising out of or based upon: (x) the Holder's failure to
comply with the prospectus delivery requirements of the
Securities Act or (y) any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, any
Prospectus, or any form of prospectus, or in any amendment or
supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading (i) to the extent, but only
to the extent, that such untrue statement or omission is
contained in any information so furnished (or in the case of an
omission, not furnished) in writing by or on behalf of such
Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus or (ii) to the extent
that (1) such untrue statements or omissions are based solely
upon information regarding such Holder furnished (or in the case
of an omission, not furnished) in writing to the Company by or on
behalf of such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities, such
Prospectus or such form of Prospectus or in any amendment or
supplement thereto, or (2) in the case of an occurrence of an
event of the type specified in Section 3(c)(ii)-(v), the use by
such Holder of an outdated or defective Prospectus after the
Company has notified such Holder in writing that the Prospectus
is outdated or defective and prior to the receipt by such Holder
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of the Advice contemplated in Section 6(b), or (3) the failure of
the Holder to deliver a Prospectus prior to the confirmation of a
sale. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the
Subscription Amount paid by the Holder in the Subscription
Agreement.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified
Party shall promptly notify the Person from whom indemnity is
sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall have the right to assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof;
provided, that the failure of any Indemnified Party to give such
notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except
(and only) to the extent that such failure shall have materially
prejudiced the Indemnifying Party.
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; (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 Indemnified Party
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 the reasonable fees and
expenses of one separate counsel for all Indemnified Parties in
any matters related on a factual basis shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be
liable for any settlement of any such Proceeding affected without
its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are
the subject matter of such Proceeding.
All reasonable fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall
be paid to the Indemnified Party, as incurred, within ten (10)
Trading Days of written notice thereof to the Indemnifying Party;
provided, that the Indemnified Party shall promptly reimburse the
Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is
not entitled to indemnification hereunder, determined based upon
the relative faults of the parties.
(d) Contribution. If a claim for indemnification under Section
5(a) or Section 5(b) is unavailable to an Indemnified Party (by
reason of public policy or otherwise), then each Indemnifying
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Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified
Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as
any other relevant equitable considerations. The relative fault
of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified
Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action,
statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable attorneys'
or other reasonable fees or expenses incurred by such party in
connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to
such party in accordance with its terms.
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. Notwithstanding the provisions of this Section 5(d),
no Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the proceeds actually
received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any
damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission, except in the case of fraud by such Holder.
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.
6. Miscellaneous.
(a) Compliance. The 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 the Registration Statement.
(b) Discontinued Disposition. The 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), 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 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.
(c) 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
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from the provisions hereof may not be given, unless the same
shall be in writing and signed by the Company and each Holder of
the then outstanding Registrable Securities.
(d) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the
earliest of (i) the Trading Day following the date of mailing, if
sent by nationally recognized overnight courier service, or (ii)
upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications
shall be delivered and addressed as set forth in the Subscription
Agreement.
(e) 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
the Holder.
(f) 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.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any
suit or proceeding arising directly and/or indirectly pursuant to
or under this Agreement, shall be brought solely in a federal or
state court located in the City, County and State of New York. By
its execution hereof, the parties hereby covenant and irrevocably
submit to the in personam jurisdiction of the federal and state
courts located in the City, County and State of New York and
agree that any process in any such action may be served upon any
of them personally, or by certified mail or registered mail upon
them or their agent, return receipt requested, with the same full
force and effect as if personally served upon them in New York
City. The parties hereto waive any claim that any such
jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction
with respect thereto. In the event of any such action or
proceeding, the party prevailing therein shall be entitled to
payment from the other party hereto of its reasonable counsel
fees and disbursements.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find
and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
-10-
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Remedies. In the event of a breach by the Company or by a
Holder, of any of their 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. The
Company and each Holder agree that monetary damages would not
provide adequate compensation for any losses incurred by reason
of a breach by it of any of the provisions of this Agreement and
hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate.
(k) Independent Nature of Purchasers' Obligations and
Rights. The obligations of each Purchaser hereunder are several
and not joint with the obligations of any other Purchaser
hereunder, and no Purchaser shall be responsible in any way for
the performance of the obligations of any other Purchaser
hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any
Purchaser pursuant hereto or thereto, shall be deemed to
constitute the Purchasers as a partnership, an association, a
joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert
with respect to such obligations or the transactions contemplated
by this Agreement. Each Purchaser shall be entitled to protect
and enforce its rights, including without limitation the rights
arising out of this Agreement, and it shall not be necessary for
any other Purchaser to be joined as an additional party in any
proceeding for such purpose.
[Remainder of page intentionally left blank]
-11-
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
INYX, INC
By:
-----------------------------
Name: Xxx Xxxxx
Title: Executive Vice President
(PURCHASERS SIGNATURE TO REGISTRATION RIGHTS AGREEMENT)
--------------------------------
By:
-----------------------------
Name:
Title:
-12-
ANNEX A
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Plan of Distribution
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The holders of Registrable Securities (the "Selling Stockholders")
and any of their pledgees, assignees and successors-in-interest may,
from time to time, sell any or all of their shares of Common Stock on any
stock exchange, market or trading facility on which the shares are traded or
in private transactions. These sales may be at fixed or negotiated prices.
The Selling Stockholders may use any one or more of the following
methods when selling 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 resale by the
broker/dealer for its account;
* an exchange distribution in accordance with the Rules of the
applicable exchange;
* privately negotiated transactions;
* settlement of short sales;
* broker/dealers may agree with the Selling Stockholders to
sell a specified number of such shares at a stipulated price per
share;
* a combination of any such methods of sale; and
* any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144
under the Securities Act, if available, rather than under this prospectus.
Broker/dealers engaged by the Selling Stockholders may
arrange for other brokers/dealers to participate in sales.
Broker/dealers may receive commissions from the Selling
Stockholders (or, if any broker/dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these
commissions to exceed what is customary in the types of
transactions involved.
The Selling Stockholders may from time to time pledge or
grant a security interest in some or all of the shares of common
stock owned by them and, if they default in the performance of
their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time under
this prospectus, or under an amendment to this prospectus under
Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of Selling Stockholders to include
the pledgee, transferee or other successors in interest as
Selling Stockholders under this prospectus.
The Selling Stockholders and any broker/dealers or agents
that are involved in selling the shares may be deemed to be
"underwriters" within the meaning of the Securities Act in
connection with such sales. In such event, any commissions
received by such broker/dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be
underwriting commissions under the Securities Act. The Selling
Stockholders have informed the Company that it does not have any
agreement or understanding, directly or indirectly, with any
person to distribute the Common Stock.
The Company is required to pay all fees and expenses
incident to the registration of the shares. The Company has
agreed to indemnify the Selling Stockholders against certain
losses, claims, damages and liabilities, including liabilities
under the Securities Act.
