Exhibit 10.14
LIGHTSPACE CORPORATION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
April 2, 2007 by and among Lightspace Corporation, a Delaware corporation (the
"Company") and the investors listed on Exhibit A hereto (collectively the
"Investors").
WHEREAS, the Company desires to sell to the Investors, and the Investors
desire to purchase, up to a maximum of four hundred thousand (400,000) Units
consisting of up to three million two hundred thousand (3,200,000) shares of
Common Stock of the Company (the "Shares") and Unit Warrants (the "Warrants"),
exercisable to purchase up to four million eight hundred thousand (4,800,000)
shares of Common Stock of the Company (the "Warrant Shares"), upon the terms and
conditions set forth in that certain Unit Subscription Agreement, dated as of
March 30, 2007, among the Company and the Investors (the "Unit Subscription
Agreement");
WHEREAS, the terms of the Unit Subscription Agreement provide that it shall
be a condition precedent to the closing of the transactions thereunder for the
Company and the Investors to execute and deliver this Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined are
defined in the Unit Subscription Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Definitions. The following terms shall have the meanings provided below:
"Additional Shares" shall mean any additional shares of Common Stock
which may be issued or become issuable from time to time upon a distribution
with respect to, or in exchange for, or in replacement of, Shares, a Warrant or
Warrant Shares, as a result of anti-dilution provisions of a Warrant or
otherwise.
"Additional Share Notice" shall have the meaning assigned thereto in
Section 10 hereof.
"Blue Sky" shall have the meaning assigned thereto in Section 4(c)
hereof.
"Board of Directors" shall mean the board of directors of the Company.
"Convertible Securities" means (i) options to purchase or rights to
subscribe for Common Stock, (ii) securities by their terms convertible into or
exchangeable for Common Stock or (iii) options to purchase or rights to
subscribe for such convertible or exchangeable securities.
"Correspondence" shall have the meaning assigned thereto in Section
15(d) hereof.
"Difference" shall have the meaning assigned thereto in Section 8(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"Holder" shall mean each Investor or any transferee of the Warrants or
Registrable Shares that were held by Investors.
"Majority Holders" shall mean, at the relevant time of reference
thereto, those Holders holding more than fifty percent (50%) of the Registrable
Shares Owned by all of the Holders.
"Mandatory Registration" shall have the meaning assigned thereto in
Section 7 hereof.
"Mandatory Registration Termination Date" shall have the meaning
assigned thereto in Section 3(c) hereof.
"Other Registrable Securities" shall have the meaning assigned thereto
in Section 3(d) hereof.
"Own" shall mean to own beneficially, as that term is defined in the
rules and regulations of the SEC.
"Registrable Shares" shall mean the Shares, the Warrant Shares and any
Additional Shares.
"Registration Statement" shall have the meaning assigned thereto in
Section 3(a) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act
and any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and all of the rules and regulations promulgated thereunder.
"Selling Expenses" shall mean all underwriting discounts, brokerage
and selling commissions applicable to the sale of Registrable Shares, including
standard underwriters' cutbacks.
"Shares" shall have the meaning assigned thereto in the Preamble to
this Agreement.
"Subsequent Registration Statements" shall have the meaning assigned
thereto in Section 3(e) hereof.
"Suspension" shall have the meaning assigned thereto in Section 10(b)
hereof.
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"Underlying Securities" shall mean the Warrant Shares and Additional
Shares issued or issuable upon exercise of Warrants.
"Unit Subscription Agreement" shall have the meaning assigned thereto
in the Preamble to this Agreement.
"Warrants" shall have the meaning assigned thereto in the Preamble to
this Agreement.
"Warrant Shares" shall have the meaning assigned thereto in the
Preamble to this Agreement.
2. Effectiveness. This Agreement shall become effective upon the Closing.
3. Mandatory Registration.
(a) No later than forty five (45) days after the Closing, the Company
will prepare and file with the SEC a registration statement on Form S-1 (or
other appropriate form) for the purpose of registering (such registration, the
"Mandatory Registration") under the Securities Act all of the Registrable Shares
for resale by, and for the account of, the Investors as selling stockholders
thereunder (the "Registration Statement"). The Registration Statement shall
permit the Investors to offer and sell, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, any or all of the Registrable
Shares. Such Registration Statement also shall cover, to the extent allowable
under the Securities Act and the rules promulgated thereunder (including Rule
416), such indeterminate number of additional shares of Common Stock resulting
from stock splits, stock dividends or similar transactions with respect to the
Registrable Shares.
(b) The Company agrees to use its best efforts to cause the
Registration Statement to become effective within ninety (90) days after filing.
(c) The Company shall be required to keep the Registration Statement
(and any subsequent Registration Statements), as amended, effective until such
date that is the earlier of (i) two years after the Closing, (ii) the date when
all of the Registrable Shares registered thereunder shall have been sold or
(iii) such time as all the Registrable Shares held by the Investors can be sold
pursuant to Rule 144(k) and without compliance with the registration
requirements of the Securities Act (such date is referred to herein as the
"Mandatory Registration Termination Date"). Thereafter, the Company shall be
entitled to withdraw the Registration Statement and the Investors shall have no
further right to offer or sell any of the Registrable Shares pursuant to the
Registration Statement (or any prospectus relating thereto).
(d) Absent the prior written consent of the Majority Holders, the
Company shall not for a period of two years from the Closing Date grant any
registration rights that are senior to the registration rights of the Investors
under this Agreement. The Investors acknowledge that other holders of Company
securities have the right to include shares of Common Stock or other securities
of the Company (the "Other Registrable Securities") in the Registration
Statement.
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(e) In the event the amount of Shares and Underlying Shares covered by
such Registration Statement is limited by the SEC, the Company: (i) shall
register the maximum number of Registrable Shares and Other Registrable
Securities permitted by the SEC, allocated among the Holders and the holders of
Other Registrable Securities in proportion to the amount previously included in
the Registration Statement, and (ii) shall file additional registration
statements (the "Subsequent Registration Statements") covering the balance of
the Registrable Shares and Other Registrable Securities as soon as practicable
in light of SEC positions, rules and regulations. The Company shall use its best
efforts to cause any and all Subsequent Registration Statements to become
effective within seventy five (75) days after each such filing.
4. Obligations of the Company. In connection with the Company's obligations
under Section 3 hereof to file the Registration Statement with the SEC and to
use its reasonable efforts to cause the Registration Statement to become
effective as soon as set forth in Section 3, the Company shall, as expeditiously
as reasonably possible, subject to Section 10 hereof:
(a) prepare and file with the SEC such amendments and supplements to
the Registration Statement and the prospectus used in connection therewith as
may be necessary in order to keep the Registration Statement effective until the
Mandatory Registration Termination Date;
(b) furnish to the selling Holders such reasonable number of copies of
the Registration Statement and a final prospectus, in conformity with the
requirements of the Securities Act, and such other documents (including, without
limitation, prospectus amendments and supplements as are prepared by the Company
in accordance with Section 4(a) above) as the selling Holders may reasonably
request, in order to facilitate the public or other disposition of such selling
Holders' Registrable Shares;
(c) use reasonable efforts to register and qualify the Registrable
Shares covered by the Registration Statement under such other securities laws or
blue sky ("Blue Sky") laws of all states requiring such securities or Blue Sky
registration or qualification, 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; and
(d) use reasonable efforts to cause all such Registrable Shares
registered hereunder to be listed on each securities exchange (including without
limitation The Nasdaq SmallCap Market) on which securities of the same class
issued by the Company are then listed.
5. Furnish Information.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement that the selling Holders
shall furnish to the Company such information regarding them and the securities
held by them as the Company shall reasonably request and as shall be required in
order to effect any registration by the Company pursuant to this Agreement.
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(b) The Registration Statement will provide for a plan of distribution
with respect to the Registrable Shares substantially as follows, provided such
plan of distribution may be modified at the request of the SEC: The Registrable
Shares may be sold from time to time by the Holders, or by pledgees, donees,
transferees or other successors in interest. Such sales may be made on one or
more exchanges or in the over-the-counter market, or otherwise at prices and at
terms then prevailing or at prices related to the then-current market price, or
in negotiated transactions. The Registrable Shares may be sold by one or more of
the following: (i) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (ii) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to the resale registration statement; (iii) an exchange distribution in
accordance with the rules of such exchange; (iv) one or more underwritten
offerings on a firm commitment or best efforts basis; (v) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; and (vi)
transactions between sellers and purchasers without a broker/dealer. In
addition, any securities covered by the Registration Statement that qualify for
sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to the
Registration Statement. For so long as a Holder Owns any Registrable Shares,
such Holder shall not maintain a Net Short Position. For purposes of this
Section, a "Net Short Position" by a person means a position whereby such person
has executed one or more sales of Common Stock that is marked as a short sale
and that is executed at a time when such Holder has no equivalent offsetting
long position in the Common Stock. For purposes of determining whether a Holder
has an equivalent offsetting long position in the Common Stock, all Common Stock
that is Owned by such Holder shall be deemed to be held long by such Holder. The
Holders may also distribute the Registrable Shares and Warrants to their
partners, members, stockholders or shareholders to the extent such distributions
are effected in full compliance with applicable securities laws and provided
that the distributing Holders and the distributees provide the Company with such
documents and other information as reasonably requested by the Company. In
effecting sales, brokers or dealers engaged by the selling Holders may arrange
for other brokers or dealers to participate. Brokers or dealers will receive
commissions or discounts from selling Holders in amounts to be negotiated
immediately prior to the sale.
6. Expenses of Registration. All expenses incurred in connection with the
registration of the Registrable Shares pursuant to this Agreement, including
without limitation all registration and qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, shall be borne by
the Company. The Company shall not be responsible for the fees and disbursements
of counsel for any of the selling Holders. All Selling Expenses shall be borne
by the Holders of the Registrable Shares so registered and sold, pro rata on the
basis of the number of their Registrable Shares so registered and sold.
7. Indemnification.
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(a) To the extent permitted by law, the Company will indemnify and
hold harmless each selling Holder (including the partners or officers, directors
and stockholders of such Holder), and each person, if any, who controls such
selling Holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Securities Act, the Exchange Act, and other federal or state
securities laws, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained in the
Registration Statement, in any preliminary prospectus or final prospectus
relating thereto or in any amendments or supplements to the Registration
Statement or any such preliminary prospectus or final prospectus, (ii) arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading or (iii) arise out of any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any other federal or
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any other federal or state securities law; and will
reimburse such selling Holder, or such officer, director or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 7(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 or delayed), nor shall
the Company be liable in any such case for any such loss, damage, liability or
action, to the extent that it arises out of or is based upon an untrue statement
or alleged untrue statement or omission made in connection with the Registration
Statement, any preliminary prospectus or final prospectus relating thereto or
any amendments or supplements to the Registration Statement or any such
preliminary prospectus or final prospectus, in reliance upon and in conformity
with written information furnished expressly for use in connection with the
Registration Statement or any such preliminary prospectus or final prospectus by
the selling Holders, any broker/dealer acting on their behalf or controlling
person with respect to them.
(b) To the extent permitted by law, each selling Holder will severally
and not jointly indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the Registration Statement, each person, if
any, who controls the Company within the meaning of the Securities Act, or any
selling Holders, and all other selling Holders against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person or such other selling Holder may become subject to, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement or any preliminary prospectus or final prospectus,
relating thereto or in any amendments or supplements to the Registration
Statement or any such preliminary prospectus or final prospectus, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent and only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, in any preliminary prospectus
or final prospectus relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
in reliance upon and in conformity with written information furnished by the
selling Holder expressly for use in connection with the Registration Statement,
or any preliminary prospectus or final prospectus; and such selling Holder will
reimburse any legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person, or other selling Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the liability of each selling
Holder hereunder (when aggregated with amounts contributed, if any, pursuant to
Section 7(d)) shall be limited to the difference (the "Difference") between (a)
the amount received by such Holder from the sale of the Registrable Shares
pursuant to the Registration Statement and (b) the amount paid by such Holder to
the Company for such Registrable Shares pursuant to the Unit Subscription
Agreement; and provided, further, that the indemnity agreement contained in this
Section 7(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 those selling Holder(s) against which the request for indemnity is
being made (which consent shall not be unreasonably withheld or delayed).
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(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel
mutually satisfactory to the indemnifying parties with the consent of the
indemnified party, which consent will not be unreasonably withheld, conditioned
or delayed. In the event that the indemnifying party assumes any such defense,
the indemnified party may participate in such defense with its own counsel and
at its own expense, provided, however, that the counsel for the indemnifying
party shall act as lead counsel in all matters pertaining to such defense or
settlement of such claim and the indemnifying party shall only pay for such
indemnified party's reasonable legal fees and expenses for the period prior to
the date of its participation in such defense, and provided further, however,
that the indemnified party (together with all indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the reasonable fees and expenses of such separate counsel
to be paid by the indemnifying party, if the representation of the indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between the indemnified party and
any other party represented by such counsel in such proceeding. Notwithstanding
the foregoing, the indemnifying party shall not be obligated to pay the fees of
more than one separate counsel. The failure to notify an indemnifying party of
the commencement of any such action will not relieve such indemnifying party of
any liability to the indemnified party under this Section 7 (except to the
extent that such failure materially and adversely affects the indemnifying
party's ability to defend such action), nor shall the omission so to notify an
indemnifying party relieve such indemnifying party of any liability which it may
have to any indemnified party otherwise other than under this Section 7. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation and otherwise in form and substance reasonably satisfactory to the
indemnified party.
(d) If the indemnification provided in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein,
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, liability, 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 that shall have resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations; provided that in no event shall any contribution by an Holder
under this Section 7(d), when aggregated with amounts paid, if any, pursuant to
Section 7(b), exceed the Difference. 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
or the omission to state 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.
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(e) The obligations of the Company and Holders under this Section 7
shall survive the completion of any offering of Registrable Shares in a
Registration Statement under Section 3 and otherwise.
8. Reports Under the Exchange Act. With a view to making available to the
Holders the benefits of Rule 144 and any other rule or regulation of the SEC
that may at any time permit the Holders to sell the Registrable Shares to the
public without registration, the Company agrees to use reasonable efforts: (a)
to make and keep public information available, as those terms are understood and
defined in Rule 144, (b) to file with the SEC in a timely manner all reports and
other documents required to be filed by an issuer of securities registered under
the Securities Act or the Exchange Act and (c) undertake any additional actions
reasonably necessary to maintain the effectiveness of the Registration Statement
or the use of Rule 144.
9. Selling Procedures. Any sale of Registrable Shares pursuant to a
registration statement filed in accordance with Section 3 hereof shall be
subject to the following conditions and procedures:
(a) Updating the Prospectus.
(i) If the Company informs the selling Holder that any registration
statement or final prospectus covering Registrable Shares then on file with the
SEC is not current or otherwise does not comply with the Securities Act, the
Company shall use its commercially reasonable efforts to provide to the selling
Holder a current prospectus that complies with the Securities Act as soon as
practicable, but in no event later than five (5) business days after delivery of
such notice.
(ii) If the Company requires more than five (5) business days to
update the prospectus under Section 10(a)(i) above, the Company shall have the
right to delay the preparation of a current prospectus that complies with the
Securities Act without explanation to such Holder, subject to the limitations
set forth in Section 10(b) below, for a total of not more than two periods of
thirty (30) days each during any twelve-month period.
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(b) General. Notwithstanding the foregoing, upon receipt of any notice
from the Company of (i) any request by the SEC 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 related
prospectus or for additional information relating to the Registration Statement,
(ii) the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iii) 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 Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, (iv) the happening of any event which makes any statement made
in the registration statement covering Registrable Shares or related prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in
the registration statement or prospectus so that, in the case of the
registration statement, it will not 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 not misleading, and that in the case of the
prospectus, it will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (v)
that, in the judgment of the Board of Directors, it is advisable to suspend use
of the prospectus for a discrete period of time due to pending corporate
developments, public filings with the SEC or that there exists material
nonpublic information about the Company that the Board of Directors, acting in
good faith, determines not to disclose in a registration statement, then the
Company may suspend use of the prospectus (each a "Suspension"), in which case
the Company shall promptly so notify each Holder and each Holder shall not
dispose of Registrable Shares covered by the registration statement or
prospectus until copies of a supplemented or amended prospectus are distributed
to the Holders or until the Holders are advised in writing by the Company that
the use of the applicable prospectus may be resumed; provided, however, that,
notwithstanding the foregoing, the Company may suspend use of the prospectus
pursuant to Sections 10(a)(ii), 10(b)(iv) and 10(b)(v), and an Holder may be
prohibited from selling or otherwise disposing of the Registrable Shares covered
by the registration statement or prospectus, for no more than two periods of
thirty (30) days during any such twelve-month period. The Company shall use its
best efforts to ensure the use of the prospectus may be resumed as soon as
practicable. The Company shall use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the securities for sale in any jurisdiction, at the earliest
practicable moment. The Company shall, upon the occurrence of any event
contemplated by clause (iv), prepare a supplement or post-effective amendment to
the registration statement or a supplement to the related prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Shares
being sold thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
10. Issuance of Certain Securities. Until all Registrable Shares have been
resold publicly pursuant to a registration statement or under Rule 144, without
the prior written consent of Majority Holders, during the three year period
following the Closing Date, the Company shall not issue for cash (a) any
Convertible Securities or similar securities that contain a provision that
provides for any change or determination of the applicable conversion price,
conversion rate, or exercise price (or a similar provision which might have a
similar effect) based on any determination of the market price or other value of
the Company's securities or any other market based or contingent standard, such
as so-called "toxic" or "death spiral" convertible securities; provided,
however, that this prohibition shall not include Convertible Securities or
similar securities the conversion or exercise price or conversion rate of which
is (i) fixed on the date of issuance, (ii) subject to adjustment as a result of
or in connection with a bona fide business combination or similar transaction or
(iii) subject to adjustment based upon the issuance by the Company of additional
securities, including without limitation, standard anti-dilution adjustment
provisions which are not based on calculations of market price or other variable
valuations; and provided, further, that in no event shall this provision be
deemed to prohibit the transactions contemplated in the Unit Subscription
Agreement, or (b) any preferred stock, debt instruments or similar securities or
investment instruments provided for (i) preferences or other payments
substantially in excess of the original investment by purchasers thereof or (ii)
dividends, interest or similar payments other than dividends, interest or
similar payments computed on an annual basis and not in excess, directly or
indirectly, of the lesser of a rate equal to (A) twice the interest rate on 10
year US Treasury Notes and (B) 20%.
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11. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the Holders shall also be for the benefit of and enforceable by any
subsequent holder of any Registrable Shares who has executed a copy of this
Agreement or otherwise indicated its agreement to be bound hereby. Without
limitation on the Holders' rights to transfer Registrable Shares, the Company
acknowledges that any Holder may, at any time, transfer any of the Registrable
Shares which it may own, beneficially or of record, to (a) its affiliates or (b)
its partner(s), investor(s), security holder(s) or beneficial holder(s) pursuant
to its organization documents or other agreements, and that, upon the
consummation of any such transfer, the provisions of this Agreement shall be
binding upon and inure to the benefit of each transferee of such Registrable
Shares.
12. Entire Agreement. This Agreement (including the exhibits hereto), the
Unit Subscription Agreement and the Warrants constitute and contain the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and such agreements also supersede any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject matter
hereof.
13. Miscellaneous.
(a) Amendments. This Agreement may not be amended, modified or
terminated, and no rights or provisions may be waived, except with the written
consent of the Majority Holders and the Company.
(b) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York. Each party
hereby irrevocably consents and submits to the jurisdiction of any New York
State or United States Federal Court sitting in the State of New York, County of
New York, over any action or proceeding arising out of or relating to this
Agreement and irrevocably consents to the service of any and all process in any
such action or proceeding by registered mail addressed to such party at its
address specified herein (or as otherwise noticed to the other party). Each
party further waives any objection to venue in New York and any objection to an
action or proceeding in such state and county on the basis of forum non
conveniens. Each party also waives any right to trial by jury.
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(c) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns. This Agreement shall also be binding
upon and inure to the benefit of any transferee of any of the Registrable
Shares. Notwithstanding anything in this Agreement to the contrary, if at any
time any Holder shall cease to own any Registrable Shares, all of such Holder's
rights under this Agreement shall immediately terminate.
(d) Notices.
(i) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be given in writing and shall be deemed effectively given upon
(a) personal delivery, (b) delivery by fax (with answer back confirmed), or (c)
two business days after mailing by recognized overnight courier (such as Federal
Express), addressed to a party at its address or sent to the fax number provided
below or at such other address or fax number as such party may designate by
three days' advance notice to the other party.
(ii) All correspondence to the Company shall be addressed as
follows:
Lightspace Corporation
Xxxxxx, XX 00000
Attention: CEO
Fax Number:
with a copy to:
Xxxx & Hessen LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx Xxxxxx
(iii) All correspondence to any Holder shall be sent to the most
recent address furnished by the Holder to the Company.
(iv) Any Holder may change the address to which correspondence to it
is to be addressed by notification as provided for herein.
(e) Injunctive Relief. The parties acknowledge and agree that in the
event of any breach of this Agreement, remedies at law may be inadequate, and
each of the parties hereto shall be entitled to seek specific performance of the
obligations of the other parties hereto and such appropriate injunctive relief
as may be granted by a court of competent jurisdiction.
(f) Attorney's Fees. If any action at law or in equity is necessary to
enforce or interpret any of the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.
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(g) Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable under applicable law, such
provision shall be replaced with a provision that accomplishes, to the extent
possible, the original business purpose of such provision in a valid and
enforceable manner, and the balance of the Agreement shall be interpreted as if
such provision were so modified and shall be enforceable in accordance with its
terms.
(h) Aggregation of Shares. Registrable Shares held or acquired by
affiliated entities or persons shall be aggregated for the purpose of
determining the availability of any rights under this Agreement.
(i) Counterparts. This Agreement may be executed in a number of
counterparts, any of which together shall for all purposes constitute one
Agreement, binding on all the parties hereto notwithstanding that all such
parties have not signed the same counterpart.
(j) Conflicts. The Company and each Investor (i) acknowledge that Xxxx
& Hessen LLP, counsel to the Company in connection with this Agreement and the
Unit Subscription Agreement, has acted, and from time to time continues to act,
as counsel to (A) certain Investors, or affiliates thereof, including without
limitation AIGH Investment Partners, LLC, in connection with investments in the
Company, and in unrelated matters, (ii) consent to the representation of the
Company and such other representation of the Investors, or affiliates thereof,
by Xxxx & Hessen LLP, (iii) acknowledge that a partner of Xxxx & Hessen LLP Owns
securities of the Company constituting less than 0.05% of outstanding stock of
the Company, and (iv) waive any conflicts of interest claim which may arise from
any or all of the foregoing.
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SIGNATURE PAGE TO LIGHTSPACE CORPORATION
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
LIGHTSPACE CORPORATION
By:
------------------------
Name:
----------------------
Title:
---------------------
INVESTORS:
(Individuals)
---------------------------
Name:
(Entities)
Entity Name:
By:
------------------------
Name:
----------------------
Title:
---------------------
Exhibit A
SCHEDULE OF INVESTORS
