EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of the ___ day of ________, 2007, by and among CNS Response,
Inc., a California corporation ("CNSR"), Strativation, Inc., a Delaware
corporation ("STRV" or, the "COMPANY"), and those stockholders of the Company
set forth on the signatures pages to this Agreement (the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, CNSR and certain Stockholders are parties to that certain
Investor Rights Agreement dated October 6, 2006 (the "INVESTOR RIGHTS
AGREEMENT") pursuant to which such Stockholders were given registration rights
with respect to their shares of CNSR Series A-1, Series A-2 and/or Series B
Preferred Stock;
WHEREAS, the Company and certain other Stockholders are parties to
certain Settlement Agreements, and amendments thereto (the "SETTLEMENT
AGREEMENTS") pursuant to which such Stockholders were given registration rights
with respect to certain of their shares of CNSR Common Stock;
WHEREAS, the Company has entered into an Agreement and Plan of Merger
(the "MERGER AGREEMENT") with STRV and CNS Merger Corporation, a wholly-owned
subsidiary of STRV ("MERGERCO"), pursuant to which MergerCo will be merged with
and into CNSR, resulting in CNSR becoming a direct wholly-owned subsidiary of
STRV (the "MERGER"), and pursuant to which the capital stock of CNSR will be
converted into the common stock of STRV (the "COMMON STOCK");
WHEREAS, it is a condition of the Merger Agreement that the
Stockholders terminate the registration rights included in the Investor Rights
Agreement and Settlement Agreements and enter into a new Registration Rights
Agreement in the form hereof.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties agree as follows:
1. TERMINATION OF INVESTOR RIGHTS AGREEMENT. Effective upon the
consummation of the Merger (the "EFFECTIVE DATE"), and without necessity of any
further action or approval by CNSR or the Stockholders, the Investor Rights
Agreement shall be terminated, and neither CNSR nor the Stockholders shall have
any further rights, obligations or liabilities of any nature whatsoever pursuant
to, or arising out of, the Investor Rights Agreement. CNSR and the Stockholders
party to the Investor Rights Agreement each represent and warrant that they have
full power and authority to terminate the Investor Rights Agreement.
2. SETTLEMENT AGREEMENTS. Effective on the Effective Date, and
without necessity of any further action or approval by CNSR or the Stockholders,
the obligations
of CNST and Stockholders arising under SECTION 6 of each Stockholder's
respective Settlement Agreement, as applicable, shall be terminated, and neither
CNSR nor the Stockholders shall have any further rights, obligations or
liabilities of any nature whatsoever pursuant to, or arising out of, SECTION 6
of each Stockholder's respective Settlement Agreement. CNSR and the Stockholders
party to each Settlement Agreement each represent and warrant that they have
full power and authority to terminate the rights under SECTION 6 of each
Stockholder's respective Settlement Agreement.
3. REGISTRATION RIGHTS
Effective as of the Effective Date, the Company hereby grants
to the Stockholders the following registration rights.
A. DEFINITIONS. As used in this SECTION 3, the following
terms shall have the following respective meanings:
BUSINESS DAY: Any day other than a day on which banks are
authorized or required to be closed in the State of New York.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated
thereunder.
PERSON: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that
discloses 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.
REGISTRABLE SECURITIES: Each issued and outstanding share of
Common Stock (i) held as of the Effective Date by the
Stockholders and identified on EXHIBIT A hereto, and (ii)
issuable upon exercise of the warrants held as of the date of
this Agreement by the Stockholders and identified on EXHIBIT A
hereto, until such time as such shares (a) have been sold
pursuant to, or are subject to, an effective registration
statement under the Act, (b) have been sold pursuant to Rule
144, or (b) may be sold without any time, volume or manner
limitations pursuant to section (k) of Rule 144.
2
REGISTRATION STATEMENT: Any registration statement of the
Company that covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statements,
including post effective amendments, all exhibits, and all
material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
RULE 144: Rule 144 promulgated by the Commission pursuant to
the Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule.
SEC: The United States Securities and Exchange Commission.
TRADING DAY: A day on whichever (a) the national securities
exchange, (b) the Nasdaq Stock Market, or (c) such other
securities market, in any such case which at the time
constitutes the principal securities market for the Common
Stock, is open for general trading of securities.
B. DEMAND REGISTRATION RIGHT. If the Company receives at
any time after the date that is twelve (12) months from the Effective Date, a
written request (a "DEMAND REQUEST") from the Stockholders of a majority of the
outstanding Registrable Securities issued and outstanding at the time of such
Demand Request (the "MAJORITY STOCKHOLDERS") who hold not less than 275,000
Registrable Securities at the time of such Demand Request, that the Company
register any such Registrable Securities, then the Company shall, within ten
(10) days after receipt of such Demand Request, give written notice of such
request ("DEMAND REQUEST NOTICE") to all Stockholders of Registrable Securities.
Each Demand Request Notice shall (x) specify the number of Registrable
Securities that the Majority Stockholders intend to sell or dispose of, (y)
state the intended method or methods of sale or disposition of such Registrable
Securities and, if applicable, (z) specify the expected price range (net of
underwriting discounts and commissions) acceptable to the Majority Stockholders
to be received for such Registrable Securities. Unless the Registration
Statement covers an underwritten offering, the Company will agree to take all
actions as are necessary to keep any Registration Statement filed pursuant to
this Section 2(b) effective until the date on which all Registrable Securities
thereunder may be sold without any restriction, under Rule 144 during any 90-day
period in accordance with all rules and regulations regarding sales of
securities pursuant to Rule 144. Each Stockholder shall respond promptly and
accurately to Company's request at reasonable intervals regarding the amount of
Registrable Securities and any other securities of the Company then held by such
Subscriber or Stockholder.
The Company shall file, no later than forty-five (45) days
following receipt of a Demand Request (the "DEMAND FILING DATE"), a Registration
Statement (the "DEMAND REGISTRATION Statement") covering such Registrable
Securities which the Company has been so requested to register by the Majority
Stockholders and any other Stockholders of Registrable Securities who request,
within fifteen (15) days of the
3
mailing of the Demand Request Notice, that the Company register their
Registrable Securities, providing for the registration under the Securities Act
of such Registrable Securities to the extent necessary to permit the disposition
of such Registrable Securities in accordance with the intended method of
distribution specified in such Demand Request, and use its commercially
reasonable efforts to have such Demand Registration Statement declared effective
by the SEC within one hundred fifty (150) days after the Demand Filing Date. If
a registration pursuant to this Section 3.B. involves an underwritten public
offering, any Stockholder requesting to be included in such registration may
elect, in writing prior to the effective date of the Registration Statement
filed in connection with such registration, not to register such securities in
connection with such registration.
The Company may delay making a filing of a Demand Registration
Statement in connection with a Demand Request or taking action in connection
therewith by not more than ninety (90) days if the Company provides a written
certificate signed by the Chief Executive Officer and Chief Financial Officer of
the Company to the Stockholders, prior to the time it would otherwise have been
required to file such Demand Registration Statement or take such action pursuant
to this SECTION 3.B., stating that the Board has determined in good faith that
the filing of such Demand Registration Statement would be seriously detrimental
to the Company or would otherwise materially adversely affect a financing,
acquisition, disposition, merger or other material transaction (collectively, a
"VALID BUSINESS REASON") and that it is therefore essential to defer the filing
of the Demand Registration Statement; provided, however, that such right to
delay a Demand Request shall be exercised by the Company not more than once in
any twelve (12)-month period and the Company shall only have the right to delay
a Demand Request so long as such Valid Business Reason exists, and during such
time, the Company may not file a registration statement for securities to be
issued and sold for its own account or for that of anyone other than the
Stockholders.
The Company shall only be obligated to effect one (1) Demand
Request pursuant to this SECTION 3.B.
The Majority Stockholders shall have the right to cancel a
proposed registration of Registrable Securities pursuant to this SECTION 3.B
when the request for cancellation is based upon material adverse information
relating to the Company that is different from the information known to the
Majority Stockholders at the time of the Demand Request. Such cancellation of a
registration shall be made in writing and shall not be counted as a Demand
Request.
C. PIGGYBACK REGISTRATION. If, at any time after the
date that is six (6) months from the Effective Date, the Company proposes to
register any of its securities under the Securities Act for sale to the public
for its own account or for the account of other security Stockholders (except
with respect to the Initial Registration Statement, or registration statements
on Forms S-4 or S-8 or another form not available for registering the
Registrable Securities for sale to the public), each such time it will give
written notice thereof to Stockholders of its intention so to do (such notice to
be given at least fifteen (15) days prior to the filing thereof). Upon the
written request of any such
4
Stockholder (which request shall specify the number of Registrable Securities
intended to be disposed of by such Stockholder and the intended method of
disposition thereof), received by the Company within ten (10) days after giving
of any such notice by the Company, to register any of such Stockholder's
Registrable Securities, the Company will use its commercially reasonable efforts
to cause the Registrable Securities as to which registration shall have been so
requested to be included in the securities to be covered by the Registration
Statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the Stockholder (in accordance with its
written request) of such Registrable Securities so registered ("PIGGYBACK
REGISTRATION RIGHTS"); PROVIDED, that if, at any time after giving written
notice of its intention to register any securities pursuant to this SECTION 3.C
and prior to the effective date of the Registration Statement filed in
connection with such registration, the Company shall determine for any reason
not to register such securities, the Company shall give written notice to all
Stockholders and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration. If a registration
pursuant to this Section 2(c) involves an underwritten public offering, any
Stockholder requesting to be included in such registration may elect, in writing
prior to the effective date of the registration statement filed in connection
with such registration, not to register such securities in connection with such
registration. The foregoing provisions notwithstanding, the Company may withdraw
any registration statement referred to in this SECTION 3.C without thereby
incurring any liability to the Stockholders.
D. UNDERWRITING. If a Registration Statement is for a
registered public offering involving an underwriting, the Company shall so
advise the Stockholder(s) in writing or as a part of the written notice given
pursuant to SECTION 3.B or 3.C, as applicable. In such event the right of any
Stockholder to registration pursuant to SECTION 3.B and/or 3.C shall be
conditioned upon such Stockholder's participation in such underwriting and the
inclusion of such Stockholder's Registrable Securities in the underwriting to
the extent provided herein. All Stockholders proposing to distribute their
securities through such underwriting shall (together with the Company and any
other stockholders of the Company distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company or
selling stockholders, as applicable. Notwithstanding any other provision of this
SECTION 3, if the underwriter or the Company determines that marketing factors
require a limitation of the number of shares to be underwritten, the underwriter
may exclude some or all Registrable Securities from such registration and
underwriting. The Company shall so advise all Stockholders (except those
Stockholders who failed to timely elect to distribute their Registrable
Securities through such underwriting or have indicated to the Company their
decision not to do so), and the number of shares of Registrable Securities that
may be included in the registration and underwriting, if any, shall be allocated
among such Stockholders as follows:
(i) In the event of a registration that is
initiated by the exercise of demand registration rights by the Majority
Stockholders, then the number of shares that may be included in the registration
and underwriting shall be allocated on a pro rata basis according to the number
of shares requested to be included by all Stockholders;
5
(ii) In the event of a registration that is
initiated by the Company, the number of shares that may be included in the
registration and underwriting shall be allocated first to the Company and then,
subject to obligations and commitments existing as of the date hereof, to all
selling stockholders, including the Stockholder(s), who have requested to sell
in the registration on a pro rata basis according to the number of shares
requested to be included; and
(iii) In the event of a registration that is
initiated by the exercise of demand registration rights by a stockholder or
stockholders of the Company (other than the Stockholder(s)), then the number of
shares that may be included in the registration and underwriting shall be
allocated first to such selling stockholders who exercised such demand and then,
subject to obligations and commitments existing as of the date hereof, to all
other selling stockholders, including the Stockholder(s), who have requested to
sell in the registration, on a pro rata basis according to the number of shares
requested to be included.
No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Stockholder disapproves of the terms of any such underwriting, such
Stockholder may elect to withdraw therefrom by written notice to the Company and
the underwriter. The Registrable Securities and/or other securities so withdrawn
from such underwriting shall also be withdrawn from such registration; PROVIDED,
HOWEVER, that, if by the withdrawal of such Registrable Securities a greater
number of Registrable Securities held by other Stockholders may be included in
such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all Stockholders who have
included Registrable Securities in the registration the right to include
additional Registrable Securities pursuant to the terms and limitations set
forth herein in the same proportion used above in determining the underwriter
limitation.
E. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company pursuant to the terms and conditions of
this Agreement, the Company shall:
(i) Prepare and file with the SEC such
amendments and supplements to all Registration Statements and each related
Prospectus as may be necessary to comply with the provisions of the Act with
respect to the disposition of securities covered by such Registration
Statements;
(ii) Respond as promptly as reasonably
practicable to any comments received from the SEC with respect to a Registration
Statement or any amendment thereto.
(iii) Notify the Stockholders as promptly as
reasonably practicable and (if requested by any such person) confirm such notice
in writing no later than one trading day following the day (A) when a Prospectus
or any Prospectus supplement or post-effective amendment to a Registration
Statement is proposed to be filed and (B) with respect to a Registration
Statement or any post-effective amendment, when the same has become effective;
6
(iv) Furnish such number of Prospectuses and
other documents incident thereto, including supplements and amendments, as the
Stockholder may reasonably request;
(v) Furnish to the Stockholder, upon request, a
copy of all documents filed with and all correspondence from or to the SEC in
connection with any such registration statement other than non-substantive cover
letters and the like;
(vi) Use its reasonable best efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any order suspending
the effectiveness of a 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; and
(vii) Use its reasonable best efforts to comply
with all applicable rules and regulations of the SEC.
Notwithstanding the foregoing, if at any time or from time to time after the
date hereof, the Company notifies a Stockholder whose shares are registered on a
Registration Statement (a "SELLING STOCKHOLDER") in writing of the existence of
an event or circumstance that is not disclosed in such Registration Statement
and that may have a material effect on the Company or its business (a "POTENTIAL
MATERIAL Event"), the Selling Stockholder shall not offer or sell any
Registrable Securities, or engage in any other transaction involving or relating
to the Registrable Securities, from the time of the giving of notice with
respect to a Potential Material Event until the Company notifies the Selling
Stockholder that such Potential Material Event either has been added to the
Registration Statement by amendment or supplement or no longer constitutes a
Potential Material Event; PROVIDED, that the Company may not so suspend the
right of a Selling Stockholder for more than One-Hundred Twenty (120) days
during any twelve (12) month period.
F. REGISTRATION EXPENSES.
(i) All expenses incident to the Company's
performance of, or compliance with, the provisions hereof, including without
limitation, all Commission and securities exchange or NASD registration and
filing fees, fees and expenses of compliance with securities or "blue sky" laws
(including fees and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), printing expenses, messenger and
delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), fees and expenses incurred in connection with the listing
of the securities to be registered, if any, on each securities exchange on which
similar securities issued by the Company are then listed, fees and disbursements
of counsel for the Company and its independent certified public accountants
(including the expense of any special audit or "cold comfort" letters required
by, or incident to, such performance),
7
Securities Act liability insurance (if the Company elects to obtain such
insurance), reasonable fees and expenses of any special experts retained by the
Company in connection with such registration, fees and expenses of other Persons
retained by the Company in connection with each registration hereunder (but not
including the fees and expense of legal counsel retained by a Stockholder or
Stockholders, or any underwriting fees, discounts or commissions attributable to
the sale of Registrable Securities) are herein called "Registration Expenses."
(ii) The Company will pay all Registration
Expenses in connection with each Registration Statement filed pursuant to
SECTION 3 except as otherwise set forth therein. Other than as specifically
provided for in SECTION 3.A hereof, all expenses to be borne by the Stockholders
in connection with any Registration Statement filed pursuant to SECTION 3
(including, without limitation, all underwriting fees, discounts or commissions
attributable to such sale of Registrable Securities) shall be borne by the
participating Stockholders pro rata in relation to the number of Registrable
Securities to be registered by each Stockholder.
G. INDEMNIFICATION; CONTRIBUTION.
(i) INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify and hold harmless, to the full extent permitted by law, each
Stockholder, its officers, directors and each Person who controls such
Stockholder (within the meaning of the Securities Act), and any agent or
investment adviser thereof, against all losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees and costs of investigation)
arising out of or based upon any untrue or alleged untrue statement of material
fact contained in any Registration Statement, any amendment or supplement
thereto, any Prospectus or preliminary Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same arise out of or are based upon any such untrue statement or omission based
upon information with respect to such Stockholder furnished in writing to the
Company by or on behalf of such Stockholder expressly for use therein; PROVIDED
that, in the event that the Prospectus shall have been amended or supplemented
and copies thereof as so amended or supplemented, shall have been furnished to a
Stockholder prior to the confirmation of any sales of Registrable Securities,
such indemnity with respect to the Prospectus shall not inure to the benefit of
such Stockholder if the Person asserting such loss, claim, damage or liability
and who purchased the Registrable Securities from such Stockholder did not, at
or prior to the confirmation of the sale of the Registrable Securities to such
Person, receive a copy of the Prospectus as so amended or supplemented and the
untrue statement or omission of a material fact contained in the Prospectus was
corrected in the Prospectus as so amended or supplemented.
(ii) INDEMNIFICATION BY STOCKHOLDERS OF
REGISTRABLE SECURITIES. In connection with any Registration Statement in which a
Stockholder is participating, each such Stockholder will furnish to the Company
in writing such information with respect to the name and address of such
Stockholder and such other information as may be reasonably required for use in
connection with any such Registration Statement or
8
Prospectus and agrees to indemnity, to the full extent permitted by law, the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue statement of a material fact
in the Registration Statement or Prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent, that such untrue or alleged untrue
statement relates to any information with respect to such Stockholder so
furnished in writing by such Stockholder specifically for inclusion in any
Prospectus or Registration Statement; PROVIDED, HOWEVER, that such Stockholder
shall not be liable in any such case to the extent that prior to the filing of
any such Registration Statement or Prospectus or amendment thereof or supplement
thereto, such Stockholder has furnished in writing to the Company information
expressly for use in such Registration Statement or Prospectus or any amendment
thereof or supplement thereto which corrected or made not misleading information
previously furnished to the Company. In no event shall the liability of any
Selling Stockholder hereunder be greater in amount than the dollar amount of the
net proceeds received by such Selling Stockholder upon the sale of the
Registrable Securities, sold under such Registration Statement or Prospectus as
contemplated herein, giving rise to such indemnification obligation.
(iii) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any
Person entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such Person of any written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such Person will claim indemnification
or contribution pursuant to the provisions hereof and, unless in the judgment of
counsel of such indemnified party a conflict of interest may exist between such
indemnified party and the indemnifying party with respect to such claim, permit
the indemnifying party to assume the defense of such claim. Whether or not such
defense is assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). No indemnifying party will consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation. If the indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obligated to pay the fees and
expenses of more than one counsel (plus such local counsel, if any, as may be
reasonably required in other jurisdictions) with respect to such claim, unless
in the judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels. For the
purposes of this Section 5(c), the term "conflict of interest" shall mean that
there are one or more legal defenses available to the indemnified party that are
different from or additional to those available to the indemnifying party or
such other indemnified parties, as applicable, which different or additional
defenses make joint representation inappropriate.
(iv) CONTRIBUTION. If the indemnification from
the indemnifying party provided for in this Section 5 is unavailable to an
indemnified party hereunder in
9
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying 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, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties 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, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 5(c), any reasonable legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(v) If indemnification is available under this
Section 5, the indemnifying parties shall indemnity each indemnified party to
the full extent provided in Sections 5(a) and (b) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 5.
H. LIMITATION TO REGISTRATION REQUIREMENT.
Notwithstanding anything else herein to the contrary, the Company shall not be
obligated to effect any registration of the Registrable Securities or take any
other action (i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Exchange Act, or (ii) during any period in which the Company suspends the rights
of a subscriber after giving the Subscriber written notification of a Material
Event.
I. TRANSFER OF RIGHTS. The rights to cause the Company
to register Registrable Securities granted pursuant to the provisions hereof may
be transferred or assigned by any Stockholder to a transferee or assignee;
PROVIDED; HOWEVER, that the transferee or assignee of such rights assumes the
obligations of such transferor or assignor, as the case may be, hereunder.
J. INFORMATION BY STOCKHOLDER. The Stockholder or
holders of Registrable Securities included in any Registration Statement shall
furnish to the Company such information regarding such Stockholder or
Stockholders and the distribution of securities by such Stockholder or
Stockholders as the Company may request in writing.
10
K. COMPLIANCE. Holder covenants and agrees that such
Stockholder will comply with the prospectus delivery requirements of the Act as
applicable to such Stockholder in connection with sales of Registrable
Securities pursuant to the Registration Statements required hereunder.
4. AMENDMENT. Except as otherwise provided herein, the provisions
hereof may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of holders of at least a majority of the aggregate
number of the Registrable Securities then outstanding. Any amendment or waiver
effected in accordance with this SECTION 10 shall be binding upon each Holder
that is a party to this Agreement, and each future holder of Registrable
Securities and the Company.
5. SUCCESSORS AND ASSIGNS. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
permitted successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
6. GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California, irrespective of its choice
of law principles.
7. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9. NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or, if sent
by telex, telecopier or e-mail transmission, upon receipt of the correct answer
back, or upon deposit with the United States Post Office, by registered or
certified mail, or upon deposit with an overnight air courier, in each case
postage prepaid and addressed to the party to be notified at the address
indicated for such party in the records of the Company, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
10. 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 this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, term sheets, letters, discussions and
understandings of the parties in connection therewith.
11
12. FURTHER ASSURANCES. Each party to this Agreement shall execute
all instruments and documents and take all actions as may be reasonably required
to effectuate this Agreement, whether before, concurrently with or after the
consummation of the transactions contemplated hereby.
12
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
CNSR : CNS RESPONSE, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
STRV : STRATIVATION, INC.
By:
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
[SIGNATURE PAGE TO STRATIVATION, INC.
REGISTRATION RIGHTS AGREEMENT]
13
STOCKHOLDERS:
-------------------------------------------------
Name of Stockholder (please print)
-------------------------------------------------
Name of Authorized Representative (if applicable)
-------------------------------------------------
Title (if applicable)
-------------------------------------------------
Signature
[SIGNATURE PAGE TO STRATIVATION, INC.
REGISTRATION RIGHTS AGREEMENT]
14
APPENDIX
to
STRATIVATION, INC.'S
REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF STOCKHOLDERS
COMMON STOCK ISSUABLE
COMMON UPON EXERCISE OF
SHAREHOLDER STOCK OUTSTANDING WARRANTS
▇▇▇▇▇▇ ▇▇▇▇▇ 22,620 0
▇▇▇▇▇▇ ▇▇▇▇▇ 453 0
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 0 7,415
▇▇▇▇▇ ▇▇▇▇ 140,545 0
▇▇▇▇▇ ▇▇▇▇▇▇ Caret & Co. 7,920 4,752
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,015,459 0
▇▇▇▇ ▇▇▇▇▇▇▇, M.D 101,806 42,330
Crown Jewel Ventures, LLC 108,182 42,331
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, M.D 56,378 0
▇▇▇▇ ▇▇▇▇ 9,566 8,176
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 21,636 8,466
▇▇▇▇▇▇ Hochwinner 24,723 14,834
▇▇▇▇ ▇▇▇▇▇ 64,910 25,398
Harmony Hill Partners, L.P. 462,937 211,653
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, M.D 84,028 45,000
▇▇▇▇▇ ▇. Negate 29,061 25,398
▇▇▇ ▇▇▇▇▇▇▇, M.D 11,015 0
▇▇▇▇▇ Holdings, Inc. 33,758 13,209
▇▇▇ ▇ ▇▇▇▇▇ 25,000 15,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 108,182 42,331
▇▇▇▇ ▇▇▇▇▇▇▇▇ 225,856 150,826
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ 1998 Rollover
▇▇▇▇ ▇▇▇ RBC Dain 75,000 45,000
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 14,850 8,910
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 108,182 42,331
▇▇▇▇▇▇▇▇ ▇. Sail 21,636 8,466
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,201,838 274,850
MAO Holdings (Cayman) Limited 250,000 150,000
▇▇▇▇ ▇▇▇▇▇▇▇, M.D 407,540 0
Masco Associates 61,120 25,398
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, M.D 125,242 0
Median & ▇▇▇▇▇▇▇, LLP 107,500 64,500
▇▇▇▇▇ ▇▇▇▇▇▇, M.D 204,644 26,923
Meyerlen, LLC 791,305 670,900
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 43,392 0
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 48,921 0
Odyssey Venture Partners II, L.P. 2,736,905 1,117,365
Pike Family Trust 57,037 50,797
▇▇▇▇▇▇ ▇▇▇▇▇▇ 188,881 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 17,629 0
Seaquestor Trust 100,000 60,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ 35,601 6,350
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ 32,454 12,699
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, M.D 205,186 21,165
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Markiles, LLP 81,880 37,128
The EAC Investment Partnership 1,249,846 474,102
▇▇▇▇ ▇▇▇▇▇▇ 99,005 59,403
W. ▇▇▇▇▇▇ ▇▇▇▇▇, M.D 117,170 0
