NEURO-HITECH, INC. REGISTRATION RIGHTS AGREEMENT NOVEMBER 29, 2006
NEURO-HITECH,
INC.
NOVEMBER
29, 2006
TABLE
OF
CONTENTS
1.
|
Registration
Rights
|
1
|
|
1.1
|
Definitions
|
1
|
|
1.2
|
Company
Registration
|
3
|
|
1.3
|
Obligations
Of The Company
|
4
|
|
1.4
|
Furnish
Information
|
5
|
|
1.5
|
Delay
Of Registration
|
5
|
|
1.6
|
Indemnification
|
5
|
|
1.7
|
Reports
Uner Securities Exchange Act
|
7
|
|
1.8
|
Transfer
Or Assignment Of Registration Rights
|
7
|
|
1.9
|
“Market
Stand-Off” Agreement
|
8
|
|
2.
|
Covenants
Of The Company To The Investors
|
9
|
|
2.1
|
Information
Rights
|
9
|
|
2.2
|
Confidentiality
|
9
|
|
3.
|
Legend
|
10
|
|
4.
|
Miscellaneous
|
10
|
|
4.1
|
Governing
Law
|
10
|
|
4.2
|
Waivers
And Amendments
|
10
|
|
4.3
|
Successors
And Assigns
|
10
|
|
4.4
|
Entire
Agreement
|
10
|
|
4.5
|
Notices
|
11
|
|
4.6
|
Interpretation
|
11
|
|
4.7
|
Severability
|
11
|
|
4.8
|
Counterparts
|
11
|
|
4.9
|
Telecopy
Execution And Delivery
|
11
|
|
4.10
|
Warrant
Exercise
|
11
|
i
THIS
REGISTRATION RIGHTS AGREEMENT (this “AGREEMENT”) is made as of November 29,
2006, between Neuro-Hitech, Inc., a Delaware corporation (the “COMPANY”), and
the individuals and entities listed on Schedule A hereto (each, an “INVESTOR”
and collectively, the “INVESTORS”).
RECITALS
WHEREAS,
the Company and the Investors are parties to the Securities Purchase Agreement
dated November 16, 2006 (the “PURCHASE AGREEMENT”);
WHEREAS,
the Investors’ obligations under the Purchase Agreement are conditioned upon
certain registration rights under the Securities Act of 1933, as amended (the
“SECURITIES ACT”); and
WHEREAS,
the Investors and the Company desire to provide for the rights of registration
under the Securities Act as are provided herein upon the execution and delivery
of this Agreement by such investors and the Company.
NOW,
THEREFORE, in consideration of the promises, covenants, and conditions set
forth
herein, the parties hereto hereby agree as follows:
1. REGISTRATION
RIGHTS.
1.1 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth
below:
(a) “ADDITIONAL
FINANCING” means the sale by the Company, in one or more closings, of securities
raising proceeds equal to (x) $9.3 million less (y) the amount of proceeds
raised at the closing under the Purchase Agreement.
(b) “COMMISSION”
means the United States Securities and Exchange Commission.
(c) “COMMON
STOCK” means the Company’s common stock, par value $0.001 per share.
(d) “CONVERSION
STOCK” means the shares of Common Stock issued or issuable upon exercise of the
Warrants to purchase Common Stock issued pursuant to the Purchase Agreement.
(e) “EFFECTIVENESS
DATE” means the 120th day following the Filing Date.
(f) “EFFECTIVENESS
PERIOD” means the period beginning on the date of effectiveness of the
Registration Statement and ending on the earlier of when (i) all Registrable
Securities have been sold or (ii) all Registrable Securities 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
reasonably acceptable to the Company’s transfer agent and the affected
Investors.
(g) “EXCHANGE
ACT” means the Securities Exchange Act of 1934, as amended.
(h) “FAIR
MARKET VALUE” means the average of the high and low prices of publicly traded
shares of Common Stock, rounded to the nearest cent, on the principal national
securities exchange on which shares of Common Stock are listed (if the shares
of
Common Stock are so listed), or on the Nasdaq Stock Market (if the shares of
Stock are regularly quoted on the Nasdaq Stock Market), or, if not so listed
or
regularly quoted, the mean between the closing bid and asked prices of publicly
traded shares of Common Stock in the over-the-counter market, or, if such bid
and asked prices shall not be available, as reported by any nationally
recognized quotation service selected by the Company, or as determined by the
Board of Directors in a manner consistent with the provisions of the Internal
Revenue Code, as amended.
(i) “FILING
DATE” means, with respect to the Registration Statement required to be filed
hereunder, the earlier of (a) 60 days after the closing under the Purchase
Agreement or (b) two business days following the final closing pursuant to
the
Additional Financing.
(j) “INVESTOR”
means any person owning Registrable Securities.
(k) The
terms
“REGISTER,” “REGISTERED” and “REGISTRATION” refer to a registration effected by
preparing and filing a registration statement or similar document in compliance
with the Securities Act, and the declaration or ordering of effectiveness of
such registration statement or document.
(l) “REGISTRABLE
SECURITIES” means (i) the Shares, (ii) the Conversion Stock and (iii) any shares
issued or issuable upon the conversion or exercise of any warrant, right or
other security that is issued as, or a dividend or other distribution with
respect to, or in exchange for, or in replacement of, the shares referenced
in
(i) and (ii) above; PROVIDED, HOWEVER, that Registrable Securities shall not
include any shares of Common Stock which have previously been registered or
which have been sold to the public either pursuant to a registration statement
or Rule 144, or which have been sold in a private transaction in which the
transferor’s rights under this Section 1 are not assigned.
(m) “REGISTRATION
STATEMENT” means the registration statement filed with the Commission pursuant
to Section 1.2(a) of this Agreement.
2
(n) “RULE
144” means Rule 144 as promulgated by the Commission under the Securities Act,
as such Rule may be amended from time to time, or any similar successor rule
that may be promulgated by the Commission.
(o) “RULE
145” means Rule 145 as promulgated by the Commission under the Securities Act,
as such Rule may be amended from time to time, or any similar successor rule
that may be promulgated by the Commission.
(p) “SHARES”
means the shares of the Common Stock issued pursuant to the Purchase Agreement.
(q) “WARRANTS”
means the warrants to purchase Common Stock issued pursuant to the Purchase
Agreement.
1.2 COMPANY
REGISTRATION.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a registration statement covering the Registrable Securities for an offering
to
be made on a continuous basis pursuant to Rule 415. The Registration Statement
shall be on Form SB-2 or Form S-3 (except if the Company is not then eligible
to
register for resale the Registrable Securities on Form SB-2 or Form S-3, in
which case such registration shall be on another appropriate form in accordance
herewith). The Company shall cause the Registration Statement to become
effective and remain effective as provided herein. The Company shall use its
reasonable commercial efforts to cause the Registration Statement to be declared
effective under the Securities Act as promptly as possible after the filing
thereof, but in any event no later than the Effectiveness Date. The Company
shall use its reasonable commercial efforts to keep the Registration Statement
continuously effective under the Securities Act during the Effectiveness Period.
(b) If:
(i)
the Registration Statement is not filed on or prior to the Filing Date; (ii)
the
Registration Statement is not declared effective by the Commission by the
Effectiveness Date; or (iii) after the Registration Statement is filed with
and
declared effective by the Commission, the Registration Statement ceases to
be
effective (by suspension or otherwise) as to all Registrable Securities to
which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an additional
registration statement filed and declared effective) for a period of time which
shall exceed 30 days in the aggregate per year or more than 20 consecutive
calendar days (defined as a period of 365 days commencing on the date the
Registration Statement is declared effective); (any such failure or breach being
referred to as an “Event,” and for purposes of clause (i) or (ii) the date on
which such Event occurs, or for purposes of clause (iii) the date which such
30
day or 20 consecutive day period (as the case may be) is exceeded, or for
purposes of clause (iv) the date on which such three (3) Trading Day period
is
exceeded, being referred to as “Event Date”), then until the applicable Event is
cured, the Company shall pay to each Investor in Common Stock at Fair Market
Value, as liquidated damages and not as a penalty, equal to 1.0%, for each
thirty (30) day period (prorated for partial periods), calculated on a daily
basis, up to a maximum of 6%, of the aggregate amount invested by such Investor.
While such Event continues, such liquidated damages shall be paid not less
often
than each thirty (30) days. Any unpaid liquidated damages as of the date when
an
Event has been cured by the Company shall be paid within three (3) days
following the date on which such Event has been cured by the Company.
3
(c) The
Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect
to
the registrations pursuant to this Section 1.2 for each Investor, including
(without limitation) all registration, filing and qualification fees, printer’s
fees, accounting fees and fees and disbursements of counsel for the Company,
but
excluding underwriting discounts and commissions relating to Registrable
Securities and fees and disbursements of counsel for the Investors.
1.3 OBLIGATIONS
OF THE COMPANY. Whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and use its commercially reasonable efforts to cause
such
registration statement to become effective, and, upon the request of the
Investors of at least a majority of the Registrable Securities registered
thereunder, keep such Registration Statement effective during the Effectiveness
Period;
(b) Prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the
Securities Act with respect to the disposition of all securities covered by
such
Registration Statement;
(c) Furnish
to the Investors such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them (provided that the Company
would not be required to print such prospectuses if readily available to
Investors from any electronic service, such as on the XXXXX filing database
maintained at xxx.xxx.xxx);
(d) Use
its
commercially reasonable efforts to register and qualify the securities covered
by such Registration Statement under such other securities’ or blue sky laws of
such jurisdictions as shall be reasonably requested by the Investors; provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
(e) In
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering (each Investor participating in
such underwriting shall also enter into and perform its obligations under such
an agreement);
(f) Notify
each Investor of Registrable Securities covered by such Registration Statement
at any time when a prospectus relating thereto is required to be delivered
under
the Securities Act of the happening of any event as a result of which the
prospectus included 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 the light of the circumstances then existing;
4
(g) Cause
all
such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange or nationally recognized quotation system on which similar
securities issued by the Company are then listed; and
(h) Provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration.
1.4 FURNISH
INFORMATION. It shall be a condition precedent to the Company’s obligations to
take any action pursuant to this Section 1 with respect to the Registrable
Securities of any selling Investor that such Investor shall furnish to the
Company such information regarding such Investor, the Registrable Securities
held by such Investor, and the intended method of disposition of such securities
as shall be required by the Company or the managing underwriters, if any, to
effect the registration of such Investor’s Registrable Securities.
1.5 DELAY
OF
REGISTRATION. No Investor shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.6 INDEMNIFICATION.
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for such Investor
and each person, if any, who controls such Investor 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 any of the foregoing persons
may become subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a “VIOLATION”): (i)
any untrue statement or alleged untrue statement of a material fact contained
in
the Registration Statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto
(collectively, the “FILINGS”), (ii) the omission or alleged omission to state in
the Filings a material fact required to be stated therein, or necessary to
make
the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will pay any
legal
or other expenses reasonably incurred by any person to be indemnified pursuant
to this Section 1.6(a) in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 1.6(a) shall not apply to amounts paid
in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such
case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation that occurs in reliance upon and
in
conformity with written information furnished expressly for use in connection
with such registration by any such Investor, underwriter or controlling person.
5
(b) To
the
extent permitted by law, each Investor will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
Registration Statement, each person, if any, who controls the Company within
the
meaning of the Securities Act, any underwriter, any other Investor selling
securities in such Registration Statement and any controlling person of any
such
underwriter or other Investor, against any losses, claims, damages, or
liabilities (joint or several) to which any of the foregoing persons may become
subject under the Securities Act, the Exchange Act or other federal or state
securities law insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in
reliance upon and in conformity with written information furnished by such
Investor expressly for use in connection with such registration; and each such
Investor will pay any legal or other expenses reasonably incurred by any person
to be indemnified pursuant to this Section 1.6(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the indemnity agreement contained in this Section 1.6(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Investor (which consent shall not be unreasonably withheld); PROVIDED, HOWEVER,
in no event shall any indemnity under this subsection 1.6(b) exceed the gross
proceeds from the offering received by such Investor.
(c) Promptly
after receipt by an indemnified party under this Section 1.6 of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1.6, deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the right
to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; PROVIDED, HOWEVER,
that an indemnified party (together with all other indemnified parties that
may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by the indemnifying
party, 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 such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.6, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any
indemnified party otherwise than under this Section 1.6.
(d) If
the
indemnification provided for in Sections 1.6(a) and (b) is held by a court
of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any loss, claim, damage or expense referred to therein, then the indemnifying
party in lieu of indemnifying such indemnified party hereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or expense in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such loss, liability, claim
or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. In no event shall any Investor be required to contribute an amount
in
excess of the gross proceeds from the offering received by such Investor.
6
(e) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions of the underwriting agreement shall control.
(f) The
obligations of the Company and Investors under this Section 1.6 shall survive
the completion of any offering of Registrable Securities in the Registration
Statement under this Section 1, and otherwise.
1.7 REPORTS
UNDER SECURITIES EXCHANGE ACT. With a view to making available the benefits
of
certain rules and regulations of the Commission, including Rule 144, that may
at
any time permit an Investor to sell securities of the Company to the public
without registration or pursuant to a registration on Form SB-2, the Company
agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) take
such
action as is necessary to enable the Investors to utilize Form SB-2 for the
sale
of their Registrable Securities;
(c) file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Securities Act and the Exchange Act; and
(d) furnish
to any Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act and
the
Exchange Act, or that it qualifies as a registrant whose securities may be
resold pursuant to Form SB-2, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information as may be reasonably requested in
availing any Investor of any rule or regulation of the Commission that permits
the selling of any such securities without registration or pursuant to such
form.
1.8 TRANSFER
OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be transferred
or
assigned, but only with all related obligations, by an Investor (a) to a
transferee or assignee who acquires at least 50,000 shares (subject to
appropriate adjustment for stock splits, stock dividends and combinations)
of
Registrable Securities from such transferring Investor (or, if less, all
Registrable Securities then held by such transferring Investor), (b) to a
transferee or assignee who holds Registrable Securities immediately prior to
such transfer or assignment, (c) in the case of an
Investor that is an investment fund, to an investment fund under common
management with such Investor, (d) in the case of an Investor that is a
partnership or limited liability company, to any partners or members of such
partnership or limited liability company, (e) in the case of an Investor that
is
a corporation, to any stockholders of such corporation, and (f) in the case
of
an Investor that is a trust, to any beneficiaries of such trust.;
provided that in the case of (a), (i) prior to such transfer or assignment,
the
Company is furnished with written notice stating the name and address of such
transferee or assignee and identifying the securities with respect to which
such
registration rights are being transferred or assigned, (ii) such transferee
or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement, including without limitation the provisions of
Section 1.9 and (iii) such transfer or assignment shall be effective only if
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act.
7
1.9 “MARKET
STAND-OFF” AGREEMENT. Each Investor hereby agrees, subject to its rights under
Section 2.3 below, that it will not, without the prior written consent of the
managing underwriter, during the period commencing on the date of the final
prospectus relating to the Company’s initial underwritten public offering and
ending on the date specified by the Company and the managing underwriter (such
period not to exceed one hundred eighty (180) calendar days) (i) lend, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
securities of the Company, including (without limitation) shares of Common
Stock
or any securities convertible into or exercisable or exchangeable for Common
Stock (whether now owned or hereafter acquired) or (ii) enter into any swap
or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any securities of the Company, including
(without limitation) shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock (whether now owned or hereafter
acquired), whether any such transaction described in clause (i) or (ii) above
is
to be settled by delivery of securities, in cash or otherwise. The foregoing
covenants shall apply only to the Company’s initial underwritten public offering
of equity securities, shall not apply to the sale of any shares by an Investor
to an underwriter pursuant to an underwriting agreement and shall only be
applicable to the Investors if all the Company’s executive officers, directors
and greater than five percent (5%) stockholders enter into similar agreements.
Each Investor agrees to execute an agreement(s) reflecting (i) and (ii) above
as
may be requested by the managing underwriters at the time of the initial
underwritten public offering, and further agrees that the Company may impose
stop transfer instructions with its transfer agent in order to enforce the
covenants in (i) and (ii) above. The underwriters in connection with the
Company’s initial underwritten public offering are intended third party
beneficiaries of the covenants in this Section 1.9 and shall have the right,
power and authority to enforce such covenants as though they were a party
hereto.
8
2. COVENANTS
OF THE COMPANY TO THE INVESTORS.
2.1 INFORMATION
RIGHTS. The Company shall deliver to each Investor who holds (and continues
to
hold) at least 50,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends and combinations), upon the request
of such Investor (which may be satisfied by filing of Company quarterly and
annual reports under the Exchange Act):
(a) as
soon
as practicable, but in any event within one hundred twenty (120) calendar days
after the end of each fiscal year of the Company, consolidated balance sheets
of
the Company and its subsidiaries, if any, as of the end of such fiscal year,
and
consolidated statements of income and consolidated statements of cash flows
of
the Company and its subsidiaries, if any, for such year, prepared in accordance
with generally accepted accounting principles (“GAAP”), all in reasonable
detail; and
(b) as
soon
as practicable, but in any event within forty-five (45) calendar days after
the
end of each of the first three (3) quarters of each fiscal year of the Company,
consolidated balance sheets of the Company and its subsidiaries, if any, as
of
the end of such quarter, and consolidated statements of income and consolidated
statements of cash flows of the Company and its subsidiaries, if any, for such
quarter prepared in accordance with GAAP, all in reasonable detail.
2.2 CONFIDENTIALITY.
Each Investor receiving any non-public information of the Company hereby agrees
to hold in confidence and trust and to act in a fiduciary manner with respect
to
all information so provided; PROVIDED, HOWEVER, that notwithstanding the
foregoing, an Investor may include summary financial information concerning
the
Company and general statements concerning the nature and progress of the
Company’s business in an Investor’s reports to its affiliates
2.3 OTHER
REGISTRATION RIGHTS. Except for the shares of Common Stock to be registered
pursuant to the Company’s Registration Rights Agreement dated January 5, 2006
(the “Existing
Registration Rights Agreement”),
neither the Company nor any of its other security holders may include securities
of the Company in the Registration Statement (other than the Shares and
Conversion Shares and shares of Common Stock and shares of Common Stock issuable
upon the exercise of warrants issued in the Additional Financing) without the
consent of a majority in interest of the Investors. The Company shall not file
any other registration statements with the Commission until the Registration
Statement required hereunder is declared effective by the Commission, except
registration statements on Form S-8 solely covering employee stock benefits.
No
other person shall be granted the right to cause the Company to effect the
registration under the Securities Act of any securities of the Company prior
to
filing the Registration Statement, nor shall the Company effect any amendment,
modification or waiver of any provision of the Existing Registration Rights
Agreement in any manner that would adversely affect the rights of the Investors
hereunder .
9
3. LEGEND.
(a) Each
certificate representing the shares of Common Stock held by the Investors shall
be endorsed with the following legend (the “LEGEND”):
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCK-UP PERIOD OF UP
TO
180 DAYS FOLLOWING THE EFFECTIVE DATE OF A REGISTRATION STATEMENT OF THE COMPANY
FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AS SET FORTH IN THAT CERTAIN
REGISTRATION RIGHTS AGREEMENT BETWEEN THE CORPORATION AND THE ORIGINAL HOLDER
OF
THESE SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE CORPORATION’S PRINCIPAL
OFFICE. SUCH LOCK-UP PERIOD IS BINDING ON TRANSFEREES OF THESE SHARES.
(b) The
Company agrees that, during the term of this Agreement, it will not remove,
and
will not permit to be removed (upon registration of transfer, re-issuance or
otherwise), the Legend from any such certificate and will place or cause to
be
placed the Legend on any new certificate theretofore represented by a
certificate carrying the Legend.
4. MISCELLANEOUS.
4.1 GOVERNING
LAW. This Agreement shall be governed in all respects by the laws of the State
of New York as such laws are applied to agreements between New York residents
entered into and to be performed entirely within New York, without regard to
conflict of laws rules.
4.2 WAIVERS
AND AMENDMENTS. This Agreement may be terminated and any term of this Agreement
may be amended or waived (either generally or in a particular instance and
either retroactively or prospectively) with the written consent of the Company
and Investors holding at least a majority of the Registrable Securities then
outstanding (the “MAJORITY INVESTORS”). Notwithstanding the foregoing,
additional parties may be added as Investors under this Agreement with the
written consent of the Company and the Majority Investors. No such amendment
or
waiver shall reduce the aforesaid percentage of the Registrable Securities,
the
holders of which are required to consent to any termination, amendment or waiver
without the consent of the record holders of all of the Registrable Securities.
Any termination, amendment or waiver effected in accordance with this Section
4.2 shall be binding upon each holder of Registrable Securities then
outstanding, each future holder of all such Registrable Securities and the
Company.
4.3 SUCCESSORS
AND ASSIGNS. Except as otherwise expressly provided herein, the provisions
of
this Agreement shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
4.4 ENTIRE
AGREEMENT. This Agreement constitutes the full and entire understanding and
agreement among the parties with regard to the subject matter hereof, and no
party shall be liable or bound to any other party in any manner by any
warranties, representations or covenants except as specifically set forth
herein.
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4.5 NOTICES.
All notices and other communications required or permitted under this Agreement
shall be in writing and shall be delivered personally by hand or by courier,
mailed by United States first-class mail, postage prepaid, sent by facsimile
or
sent by electronic mail directed (a) if to an Investor, at such Investor’s
address, facsimile number or electronic mail address set forth in the Company’s
records, or at such other address, facsimile number or electronic mail address
as such Investor may designate by ten (10) days’ advance written notice to the
other parties hereto or (b) if to the Company, to its address, facsimile number
or electronic mail address set forth on its signature page to this Agreement
and
directed to the attention of the President, or at such other address, facsimile
number or electronic mail address as the Company may designate by ten (10)
days’
advance written notice to the other parties hereto. All such notices and other
communications shall be effective or deemed given upon personal delivery, on
the
date of mailing, upon confirmation of facsimile transfer or upon confirmation
of
electronic mail delivery.
4.6 INTERPRETATION.
The words “include,” “includes” and “including” when used herein shall be deemed
in each case to be followed by the words “without limitation.” The titles and
subtitles used in this Agreement are used for convenience only and are not
considered in construing or interpreting this Agreement.
4.7 SEVERABILITY.
If one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement, and the
balance of the Agreement shall be interpreted as if such provision were so
excluded, and shall be enforceable in accordance with its terms.
4.8 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument.
4.9 TELECOPY
EXECUTION AND DELIVERY. A facsimile, telecopy or other reproduction of this
Agreement may be executed by one or more parties hereto, and an executed copy
of
this Agreement may be delivered by one or more parties hereto by facsimile
or
similar electronic transmission device pursuant to which the signature of or
on
behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of
any
party hereto, all parties hereto agree to execute an original of this Agreement
as well as any facsimile, telecopy or other reproduction hereof.
4.10 WARRANT
EXERCISE. Any warrant exercised pursuant to which Common Stock may be issued
subject to the registration rights herein shall constitute restricted Common
Stock.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month
and
year first set forth above.
“Company”
NEURO-HITECH,
INC.
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By: | /s/ Xxxxx Xxxxxxx | |
Name:
Xxxxx Xxxxxxx
Title:
Chief Financial Officer
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ADDRESS:
Neuro-Hitech,
Inc.
Xxx
Xxxx Xxxxx, Xxxxx 0000
Xxx
Xxxx, Xxx Xxxx 00000
Telephone:
(212) ____________
Telecopy:
(212) ___________
Email:____________________
Attention:
Chief Executive Officer
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“Investors”
XXXXXXXX
MEDTECH PARTNERS, LP
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By: | /s/ Xxxxx Xxxxxxxxxx | |
Name:
Xxxxx Xxxxxxxxxx
Title:
CEO, Xxxxxxxx MedTech Parnters, LLC, General
Partner
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ADDRESS:
___________________________________
___________________________________
___________________________________
Telephone:__________________________
Telecopy:___________________________
Email:______________________________
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XXXXXXXX
NEW YORK PARTNERS, LP
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By: | /s/ Xxxxx Xxxxxxxxxx | |
Name:
Xxxxx Xxxxxxxxxx
Title:
CEO, Xxxxxxxx MedTech Parnters, LLC, General
Partner
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ADDRESS:
___________________________________
___________________________________
___________________________________
Telephone:__________________________
Telecopy:___________________________
Email:______________________________
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XXXXXX
VENTURES
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By: | /s/ Xxxxxxx X. Xxxxxx | |
Name:
Xxxxxxx X. Xxxxxx
Title:
Managing Director
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ADDRESS:
___________________________________
___________________________________
___________________________________
Telephone:__________________________
Telecopy:___________________________
Email:______________________________
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Xxxxxx
Capital Investments,
LLC
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By: | /s/ Xxxxxx X. Xxxxxx | |
Name:
Xxxxxx X. Xxxxxx
Title:
CIO
Address:
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CGM
as C/F Xxxxxx X. Xxxxxx
(XXX)
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By: | /s/ Xxxxxx X. Xxxxxx | |
Name:
Xxxxxx X. Xxxxxx
Address:
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CGM
as C/F Xxxxx X. Xxxxxxxxx
(XXX)
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By: | /s/ Xxxxx X. Xxxxxxxxx | |
Name:
Xxxxx X. Xxxxxxxxx
Address:
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