Blueprint








EXHIBIT
10.2











 



AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

 


This
Amended and Restated Registration Rights Agreement (the
“Agreement”) is made and entered into as of this ___
day of ______________, 2017 by and among Visualant, Incorporated, a
Nevada corporation (the “Company”), and the
“Holder” named in that certain Preferred Stock and
Warrant Purchase Agreement by and between the Company and the
Holder (the “Subscription Agreement”). Capitalized
terms used herein have the respective meanings ascribed thereto in
the Subscription Agreement unless otherwise defined herein.
This Agreement amends, restates
and supersedes the original Registration Rights Agreement dated as
of November 10, 2016.

 


The
parties hereby agree as follows:

 




1.

Certain
Definitions.





 


As used
in this Agreement, the following terms shall have the following
meanings:

 


“Common Stock” means the
Company’s common stock, par value $0.001 per share, and any
securities into which such shares may hereinafter be
reclassified.

 


“Investors” means the
Investors identified in the Subscription Agreement and any
Affiliate or permitted transferee of any Investor who is a
subsequent holder of any Warrants or Registrable
Securities.

 


“Prospectus” means (i) the
prospectus included in any Registration Statement, 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 by all other amendments
and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such
prospectus, and (ii) any “free writing prospectus” as
defined in Rule 405 under the 1933 Act.

 


“Register,”
“registered” and
“registration” refer to a
registration made by preparing and filing a Registration Statement
or similar document in compliance with the 1933 Act (as defined
below), and the declaration or ordering of effectiveness of such
Registration Statement or document.

 


“Registrable Securities”
means (i) the Conversion Shares, (ii) the Warrant Shares and (iii)
any other securities issued or issuable with respect to or in
exchange for any Registrable Securities, whether by merger, charter
amendment or otherwise; provided, that, a security shall cease to
be an Registrable Security upon sale pursuant to a Registration
Statement or Rule 144 under the 1933 Act.

 


“Registration Statement”
means any registration statement of the Company filed under the
1933 Act that covers the resale of any of the Registrable
Securities pursuant to the provisions of this Agreement, amendments
and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material
incorporated by reference in such Registration
Statement.

 



 

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“Required Investors” means
the Investors holding at least 85% of the Registrable
Securities.

 


“SEC” means the U.S.
Securities and Exchange Commission.

 


“1933 Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

 


“1934 Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.

 




2.

Registration.





 

(a) Registration
Statements.

 


(i) Initial
Registration Statement. Unless
extended by written consent of the Required Investors, on or before
May 31, 2017 (the “Filing Deadline”), the Company shall
prepare and file with the SEC one Registration Statement on Form
S-1, covering the resale or other disposition of the Registrable
Securities. No Investor shall be named as an
“underwriter” in the Registration Statement without the
Investor’s prior written consent. Such Registration Statement
also shall cover pursuant to Rule 416 such indeterminate number of
additional shares of Common Stock due to an increase in the number
of Warrant Shares resulting from changes in the Exercise Price
pursuant to the terms of the Warrants. Such Registration Statement
shall not include any shares of Common Stock or other securities
for the account of any other holder without the prior written
consent of the Required Investors. The Registration Statement (and
each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors and their counsel
prior to its filing or other submission. If a Registration
Statement covering the Registrable Securities is not filed with the
SEC on or prior to the Filing Deadline, the Company will make pro
rata payments to each Investor, as liquidated damages and not as a
penalty, in an amount equal to 1.5% of the aggregate amount
invested by such Investor pursuant to the Subscription Agreement
for each 30-day period or pro rata for any portion thereof
following the Filing Deadline for which no Registration Statement
is filed with respect to the Registrable Securities. Such payments
shall constitute the Investors’ exclusive monetary remedy for
such events, but shall not affect the right of the Investors to
seek injunctive relief. Such payments shall be made to each
Investor in cash no later than three (3) Business Days after the
end of each 30-day period.

 



 

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(ii) S-3
Qualification. Promptly
following the date (the “Qualification Date”) upon
which the Company becomes eligible to use a registration statement
on Form S-3 to register the Registrable Securities for resale or
other disposition by the Investors, but in no event more than
thirty (30) days after the Qualification Date (the
“Qualification Deadline”), the Company shall file a
registration statement on Form S-3 covering the Registrable
Securities (or a post-effective amendment on Form S-3 to the
registration statement on Form S-1) (a “Shelf Registration
Statement”) and shall use commercially reasonable efforts to
cause such Shelf Registration Statement to be declared effective as
promptly as practicable thereafter. If a Shelf Registration
Statement covering the Registrable Securities is not filed with the
SEC on or prior to the Qualification Deadline, the Company will
make pro rata payments to each Investor, as liquidated damages and
not as a penalty, in an amount equal to 1.5% of the aggregate
amount invested by such Investor pursuant to the Subscription
Agreement attributable to those Registrable Securities that remain
unsold at that time for each 30-day period or pro rata for any
portion thereof following the date by which such Shelf Registration
Statement should have been filed for which no such Shelf
Registration Statement is filed with respect to the Registrable
Securities. Such payments shall constitute the Investors’
exclusive monetary remedy for such events, but shall not affect the
right of the Investors to seek injunctive relief. Such payments
shall be made to each Investor in cash no later than three (3)
Business Days after the end of each 30-day
period.

 


(b) Expenses.
The Company will pay all expenses associated with effecting the
registration of the Registrable Securities, including filing and
printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities
for sale under applicable state securities laws, listing fees, and
fees and expenses of one counsel to the Investors, and the
Investors’ reasonable expenses in connection with the
registration, but excluding discounts, commissions, fees of
underwriters, selling brokers, dealer managers or similar
securities industry professionals with respect to the Registrable
Securities being sold.

 

(c) Effectiveness.

 


(i) The
Company shall use commercially reasonable efforts to have each
Registration Statement declared effective as soon as practicable.
The Company shall notify the Investors by facsimile or e-mail as
promptly as practicable, and in any event, within twenty-four (24)
hours, after any Registration Statement is declared effective and
shall simultaneously provide the Investors with copies of any
related Prospectus to be used in connection with the sale or other
disposition of the securities covered thereby. If (A)(x) a
Registration Statement covering the Registrable Securities is not
declared effective by the SEC prior to the earlier of (i) five (5)
Business Days after the SEC shall have informed the Company that no
review of such Registration Statement will be made or that the SEC
has no further comments on the Registration Statement or (ii) the
90th
day after the Closing Date (the
120th
day if the SEC reviews such
Registration Statement), or (y) a Shelf Registration Statement is
not declared effective by the SEC prior to the earlier of (i) five
(5) Business Days after the SEC shall have informed the Company
that no review of the Registration Statement will be made or that
the SEC has no further comments on the Registration Statement or
(ii) the 90th
day after the Qualification Deadline
(the 120th
day if the SEC reviews such
Registration Statement), or (B) after a Registration Statement has
been declared effective by the SEC, sales cannot be made pursuant
to such Registration Statement for any reason (including without
limitation by reason of a stop order, or the Company’s
failure to update the Registration Statement), but excluding any
Allowed Delay (as defined below) or the inability of any Investor
to sell the Registrable Securities covered thereby due to market
conditions, then the Company will make pro rata payments to each
Investor, as liquidated damages and not as a penalty, in an amount
equal to 1.5% of the aggregate amount invested by such Investor
pursuant to the Subscription Agreement for each 30-day period or
pro rata for any portion thereof following the date by which such
Registration Statement should have been effective (the
“Blackout Period”). Such payments shall constitute the
Investors’ exclusive monetary remedy for such events, but
shall not affect the right of the Investors to seek injunctive
relief. The amounts payable as liquidated damages pursuant to this
paragraph shall be paid monthly within three (3) Business Days of
the last day of each month following the commencement of the
Blackout Period until the termination of the Blackout Period. Such
payments shall be made to each Investor in
cash.

 



 

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(ii) For
not more than twenty (20) consecutive days or for a total of not
more than forty-five (45) days in any twelve (12) month period, the
Company may suspend the use of any Prospectus included in any
Registration Statement contemplated by this Section in the event
that the Company determines in good faith that such suspension is
necessary to (A) delay the disclosure of material non-public
information concerning the Company, the disclosure of which at the
time is not, in the good faith opinion of the Company, in the best
interests of the Company or (B) amend or supplement the affected
Registration Statement or the related Prospectus so that such
Registration Statement or Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus in light of the
circumstances under which they were made, not misleading (an
“Allowed Delay”); provided, that the Company shall
promptly (a) notify each Investor in writing of the commencement of
an Allowed Delay, but shall not (without the prior written consent
of an Investor) disclose to such Investor any material non-public
information giving rise to an Allowed Delay, (b) advise the
Investors in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay and (c) use
commercially reasonable efforts to terminate an Allowed Delay as
promptly as practicable.

 


(d) Rule
415; Cutback If at any time the
SEC takes the position that the offering of some or all of the
Registrable Securities in a Registration Statement is not eligible
to be made on a delayed or continuous basis under the provisions of
Rule 415 under the 1933 Act or requires any Investor to be named as
an “underwriter”, the Company shall use its best
efforts to persuade the SEC that the offering contemplated by the
Registration Statement is a valid secondary offering and not an
offering “by or on behalf of the issuer” as defined in
Rule 415 and that none of the Investors is an
“underwriter”. The Investors shall have the right to
participate or have their counsel participate in any meetings or
discussions with the SEC regarding the SEC’s position and to
comment or have their counsel comment on any written submission
made to the SEC with respect thereto. No such written submission
shall be made to the SEC to which the Investors’ counsel
reasonably objects. In the event that, despite the Company’s
best efforts and compliance with the terms of this Section 2(d),
the SEC refuses to alter its position, the Company shall (i) remove
from the Registration Statement such portion of the Registrable
Securities (the “Cut Back Shares”) and/or (ii) agree to
such restrictions and limitations on the registration and resale of
the Registrable Securities as the SEC may require to assure the
Company’s compliance with the requirements of Rule 415
(collectively, the “SEC Restrictions”); provided,
however, that the Company shall not agree to name any Investor as
an “underwriter” in such Registration Statement without
the prior written consent of such Investor. Any cut-back imposed on
the Investors pursuant to this Section 2(d) shall be allocated
among the Investors on a pro rata basis and shall be applied first
to any Warrant Shares, unless the SEC Restrictions otherwise
require or provide or the Investors otherwise agree. No liquidated
damages shall accrue as to any Cut Back Shares until such date as
the Company is able to effect the registration of such Cut Back
Shares in accordance with any SEC Restrictions (such date, the
“Restriction Termination Date” of such Cut Back
Shares). From and after the Restriction Termination Date applicable
to any Cut Back Shares, all of the provisions of this Section 2
(including the liquidated damages provisions) shall again be
applicable to such Cut Back Shares; provided, however, that (i) the
date by which the Company is required to file the Registration
Statement including such Cut Back Shares (including any
Qualification Deadline) shall be ten (10) Business Days after such
Restriction Termination Date, and (ii) the date by which the
Company is required to obtain effectiveness with respect to such
Cut Back Shares under Section 2(c) shall be the
90th
day immediately after the Restriction
Termination Date.

 



 

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(e) Right
to Piggyback Registration.

 


(i) If
at any time following the date of this Agreement that any
Registrable Securities remain outstanding (A) there is not one or
more effective Registration Statements covering all of the
Registrable Securities and (B) the Company proposes for any reason
to register any shares of Common Stock under the 1933 Act (other
than pursuant to a registration statement on Form S-4 or Form S-8
(or a similar or successor form)) with respect to an offering of
Common Stock by the Company for its own account or for the account
of any of its stockholders, it shall at each such time promptly
give written notice to the holders of the Registrable Securities of
its intention to do so (but in no event less than thirty (30) days
before the anticipated filing date) and, to the extent permitted
under the provisions of Rule 415 under the 1933 Act, and subject to
the cutback provisions of Section 2(d), include in such
registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within
fifteen (15) days after receipt of the Company’s notice. Such
notice shall offer the holders of the Registrable Securities the
opportunity to register such number of shares of Registrable
Securities as each such holder may request and shall indicate the
intended method of distribution of such Registrable
Securities.

 


(ii) Notwithstanding
the foregoing, (A) if such registration involves an underwritten
public offering, the Investors must sell their Registrable
Securities to, if applicable, the underwriter(s) at the same price
and subject to the same underwriting discounts and commissions that
apply to the other securities sold in such offering (it being
acknowledged that the Company shall be responsible for other
expenses as set forth in Section 2(b)) and subject to the Investors
entering into customary underwriting documentation for selling
stockholders in an underwritten public offering, and (B) if, at any
time after giving written notice of its intention to register any
Registrable Securities pursuant to Section 2(e)(i) 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 cause such registration statement to become effective under
the 1933 Act, the Company shall deliver written notice to the
Investors and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such
registration; provided, however, that nothing contained in this
Section 2(e)(ii) shall limit the Company’s other liabilities
and/or obligations under this Agreement, including, without
limitation, the obligation to pay liquidated damages under Sections
2(a), (c) or (d).

 

3.        
Company
Obligations. The Company will
use commercially reasonable efforts to effect the registration of
the Registrable Securities in accordance with the terms hereof, and
pursuant thereto the Company will, as expeditiously as
possible:

 


(a) use
commercially reasonable efforts to cause such Registration
Statement to become effective and to remain continuously effective
for a period that will terminate upon the date on which all
Registrable Securities covered by such Registration Statement as
amended from time to time, have been sold.

 



 

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(b) prepare
and file with the SEC such amendments and post-effective amendments
to the Registration Statement and the Prospectus as may be
necessary to keep the Registration Statement effective for the
Effectiveness Period and to comply with the provisions of the 1933
Act and the 1934 Act with respect to the distribution of all of the
Registrable Securities covered thereby;

 


(c) provide
copies to and permit counsel designated by the Investors to review
each Registration Statement and all amendments and supplements
thereto no fewer than seven (7) days prior to their filing with the
SEC and not file any document to which such counsel reasonably
objects;

 


(d) furnish
to the Investors and their legal counsel (i) promptly after the
same is prepared and publicly distributed, filed with the SEC, or
received by the Company (but not later than two (2) Business Days
after the filing date, receipt date or sending date, as the case
may be) one (1) copy of any Registration Statement and any
amendment thereto, each preliminary prospectus and Prospectus and
each amendment or supplement thereto, and each letter written by or
on behalf of the Company to the SEC or the staff of the SEC, and
each item of correspondence from the SEC or the staff of the SEC,
in each case relating to such Registration Statement (other than
any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such number of
copies of a Prospectus, including a preliminary prospectus, and all
amendments and supplements thereto and such other documents as each
Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Investor
that are covered by the related Registration
Statement;

 


(e) use
commercially reasonable efforts to (i) prevent the issuance of any
stop order or other suspension of effectiveness and, (ii) if such
order is issued, obtain the withdrawal of any such order at the
earliest possible moment;

 



(f) prior
to any public offering of Registrable Securities, use commercially
reasonable efforts to register or qualify or cooperate with the
Investors and their counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions
requested by the Investors and do any and all other commercially
reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided, however, that the
Company shall not be required in connection therewith or as a
condition thereto to (i) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 3(f), (ii) subject itself to general taxation in any
jurisdiction where it would not otherwise be so subject but for
this Section 3(f), or (iii) file a general consent to service of
process in any such jurisdiction;

 


(g) use
commercially reasonable efforts to cause all Registrable Securities
covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then
listed;

 



 

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(h) immediately
notify the Investors, at any time prior to the end of the
Effectiveness Period, upon discovery that, or upon the happening of
any event as a result of which, the Prospectus includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and promptly prepare, file with the SEC and furnish to such holder
a supplement to or an amendment of such Prospectus as may be
necessary so that such Prospectus shall not include 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 in light of the circumstances then
existing;

 


(i) otherwise
use commercially reasonable efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934
Act, including, without limitation, Rule 172 under the 1933 Act,
file any final Prospectus, including any supplement or amendment
thereof, with the SEC pursuant to Rule 424 under the 1933 Act,
promptly inform the Investors in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Investors are
required to deliver a Prospectus in connection with any disposition
of Registrable Securities and take such other actions as may be
reasonably necessary to facilitate the registration of the
Registrable Securities hereunder; and make available to its
security holders, as soon as reasonably practicable, but not later
than the Availability Date (as defined below), an earnings
statement covering a period of at least twelve (12) months,
beginning after the effective date of each Registration Statement,
which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act, including Rule 158 promulgated thereunder
(for the purpose of this subsection 3(i), “Availability
Date” means the 45th day following the end of the fourth
fiscal quarter that includes the effective date of such
Registration Statement, except that, if such fourth fiscal quarter
is the last quarter of the Company’s fiscal year,
“Availability Date” means the 90th day after the end of
such fourth fiscal quarter); and

 


(j) With
a view to making available to the Investors the benefits of Rule
144 (or its successor rule) and any other rule or regulation of the
SEC that may at any time permit the Investors to sell shares of
Common Stock to the public without registration, the Company
covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144,
until the earlier of (A) six months after such date as all of the
Registrable Securities may be sold without restriction by the
holders thereof pursuant to Rule 144 or any other rule of similar
effect or (B) such date as all of the Registrable Securities shall
have been resold; (ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the 1934
Act; and (iii) furnish to each Investor upon request, as long as
such Investor owns any Registrable Securities, (A) a written
statement by the Company that it has complied with the reporting
requirements of the 1934 Act, (B) a copy of the Company’s
most recent Annual Report on Form 10-K or Quarterly Report on Form
10-Q, and (C) such other information as may be reasonably requested
in order to avail such Investor of any rule or regulation of the
SEC that permits the selling of any such Registrable Securities
without registration.

 



 

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4.   
      Due Diligence Review;
Information. The Company shall
make available, during normal business hours, for inspection and
review by the Investors, advisors to and representatives of the
Investors (who may or may not be affiliated with the Investors and
who are reasonably acceptable to the Company), all financial and
other records, all SEC Filings (as defined in the Subscription
Agreement) and other filings with the SEC, and all other corporate
documents and properties of the Company as may be reasonably
necessary for the purpose of such review, and cause the
Company’s officers, directors and employees, within a
reasonable time period, to supply all such information reasonably
requested by the Investors or any such representative, advisor or
underwriter in connection with such Registration Statement
(including, without limitation, in response to all questions and
other inquiries reasonably made or submitted by any of them), prior
to and from time to time after the filing and effectiveness of the
Registration Statement for the sole purpose of enabling the
Investors and such representatives, advisors and underwriters and
their respective accountants and attorneys to conduct initial and
ongoing due diligence with respect to the Company and the accuracy
of such Registration Statement.

 


The
Company shall not disclose material nonpublic information to the
Investors, or to advisors to or representatives of the Investors,
unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information
and provides the Investors, such advisors and representatives with
the opportunity to accept or refuse to accept such material
nonpublic information for review and any Investor wishing to obtain
such information enters into an appropriate confidentiality
agreement with the Company with respect thereto.

 




5.

Obligations of the
Investors.





 


(a) Each
Investor shall furnish in writing to the Company such information
regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held
by it, as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably
request. At least five (5) Business Days prior to the first
anticipated filing date of any Registration Statement, the Company
shall notify each Investor of the information the Company requires
from such Investor if such Investor elects to have any of the
Registrable Securities included in the Registration Statement. An
Investor shall provide such information to the Company at least two
(2) Business Days prior to the first anticipated filing date of
such Registration Statement if such Investor elects to have any of
the Registrable Securities included in the Registration
Statement.

 


(b) Each
Investor, by its acceptance of the Registrable Securities agrees to
cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of a Registration
Statement hereunder, unless such Investor has notified the Company
in writing of its election to exclude all of its Registrable
Securities from such Registration Statement.

 


(c) Each
Investor agrees that, upon receipt of any notice from the Company
of either (i) the commencement of an Allowed Delay pursuant to
Section 2(c)(ii) or (ii) the happening of an event pursuant to
Section 3(h) hereof, such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities, until the Investor
is advised by the Company that such dispositions may again be
made.

 



 

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6.

Indemnification.





 


(a) Indemnification
by the Company. The Company
will indemnify and hold harmless each Investor and its officers,
directors, members, employees and agents, successors and assigns,
and each other person, if any, who controls such Investor within
the meaning of the 1933 Act, and Garden State Securities, Inc.,
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement or omission or
alleged omission of any material fact contained in any Registration
Statement, any preliminary Prospectus or final Prospectus, or any
amendment or supplement thereof; (ii) any blue sky application or
other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company
filed in any state or other jurisdiction in order to qualify any or
all of the Registrable Securities under the securities laws thereof
(any such application, document or information herein called a
“Blue Sky Application”); (iii) the omission or alleged
omission to state in a Blue Sky Application a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (iv) any violation by the Company or its
agents of any rule or regulation promulgated under the 1933 Act
applicable to the Company or its agents and relating to action or
inaction required of the Company in connection with such
registration; or (v) any failure to register or qualify the
Registrable Securities included in any such Registration Statement
in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake
such registration or qualification on an Investor’s behalf
and will reimburse such Investor, and each such officer, director
or member and each such 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 Company will not be liable in any such case if and to the
extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished by such Investor or any such controlling person in
writing specifically for use in such Registration Statement or
Prospectus.

 


(b) Indemnification
by the Investors. Each Investor
agrees, severally but not jointly, to indemnify and hold harmless,
to the fullest extent permitted by law, the Company, Garden State
Securities, Inc., its directors, officers, employees, stockholders
and each person who controls the Company (within the meaning of the
1933 Act) against any losses, claims, damages, liabilities and
expense (including reasonable attorney fees) resulting from any
untrue statement of a material fact or any omission of a material
fact required to be stated in the Registration Statement or
Prospectus or preliminary Prospectus or amendment or supplement
thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or
omission is contained in any information furnished in writing by
such Investor to the Company specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of an Investor be greater
in amount than the dollar amount of the proceeds (net of all
expenses paid by such Investor in connection with any claim
relating to this Section 6 and the amount of any damages such
Investor has otherwise been required to pay by reason of such
untrue statement or omission) received by such Investor upon the
sale of the Registrable Securities included in the Registration
Statement giving rise to such indemnification
obligation.

 



 

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(c) Conduct
of Indemnification Proceedings.
Any person entitled to indemnification hereunder shall (i) give
prompt notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided
that any person entitled to
indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such
person unless (a) the indemnifying party has agreed to pay such
fees or expenses, or (b) the indemnifying party shall have failed
to assume the defense of such claim and employ counsel reasonably
satisfactory to such person or (c) in the reasonable judgment of
any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the
indemnifying party with respect to such claims (in which case, if
the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such claim on behalf of such person);
and provided,
further,
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations hereunder, except to the extent that such failure to
give notice shall materially adversely affect the indemnifying
party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection
with any proceeding in the same jurisdiction, be liable for fees or
expenses of more than one separate firm of attorneys at any time
for all such indemnified parties. No indemnifying party will,
except with the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement that 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.

 


(d) Contribution.
If for any reason the indemnification provided for in the preceding
paragraphs (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless, other than as expressly specified
therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable
considerations. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the 1933 Act shall be
entitled to contribution from any person not guilty of such
fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in
amount than the dollar amount of the proceeds (net of all expenses
paid by such holder in connection with any claim relating to this
Section 6 and the amount of any damages such holder has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission) received by it upon the
sale of the Registrable Securities giving rise to such contribution
obligation.

 




7.

Miscellaneous.





 


(a) Amendments
and Waivers. This Agreement may
be amended only by a writing signed by the Company and the Required
Investors. The Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only
if the Company shall have obtained the written consent to such
amendment, action or omission to act, of the Required
Investors.

 



 

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(b) Notices.
All notices and other communications provided for or permitted
hereunder shall be made as set forth in Section 9.4 of the
Subscription Agreement.

 


(c) Assignments
and Transfers by Investors. The
provisions of this Agreement shall be binding upon and inure to the
benefit of the Investors and their respective successors and
assigns. An Investor may transfer or assign, in whole or from time
to time in part, to one or more persons its rights hereunder in
connection with the transfer of Registrable Securities by such
Investor to such person, provided that such Investor complies with
all laws applicable thereto and provides written notice of
assignment to the Company promptly after such assignment is
effected.

 


(d) Assignments
and Transfers by the Company.
This Agreement may not be assigned by the Company (whether by
operation of law or otherwise) without the prior written consent of
the Required Investors, provided, however, that in the event that
the Company is a party to a merger, consolidation, share exchange
or similar business combination transaction in which the Common
Stock is converted into the equity securities of another Person,
from and after the effective time of such transaction, such Person
shall, by virtue of such transaction, be deemed to have assumed the
obligations of the Company hereunder, the term
“Company” shall be deemed to refer to such Person and
the term “Registrable Securities” shall be deemed to
include the securities received by the Investors in connection with
such transaction unless such securities are otherwise freely
tradable by the Investors after giving effect to such
transaction.

 


(e) Benefits
of the Agreement. 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.

 


(f) Counterparts;
Faxes. 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. This Agreement may also be executed via facsimile,
which shall be deemed an original.

 


(g) 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.

 


(h) Severability.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be
interpreted as if it were written so as to be enforceable to the
maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any
provisions hereof prohibited or unenforceable in any
respect.

 


(i) Further
Assurances. The parties shall
execute and deliver all such further instruments and documents and
take all such other actions as may reasonably be required to carry
out the transactions contemplated hereby and to evidence the
fulfillment of the agreements herein contained.

 



 

11







 





 


(j) Entire
Agreement. This Agreement is
intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the
subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.

 


(k) Governing
Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be
governed by, and construed in accordance with, the internal laws of
the State of New York without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits
to the exclusive jurisdiction of the courts of the State of New
York located in New York County and the United States District
Court for the Southern District of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of
this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may
be served on each party hereto anywhere in the world by the same
methods as are specified for the giving of notices under this
Agreement. Each of the parties hereto irrevocably consents to the
jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of
any such suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 



12








 






 


IN
WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first
above written.

 

 


	
The
Company:	
VISUALANT,
INCORPORATED

	

 


	
 	
 

	

 


	

 

	

 

	

 

	

 


	
 

	
By:  

	
 

	

 


	

 

	

Name:
Ronald P. Erickson 


	

 


	

 

	

Title:
President and Chief Executive Officer 


	

 






 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 


 



13








 





 


	The
Investors:	[___________________________]
	
 

	
 


	
 

	
 


	
 

	





By:
_______________________________




	
 

	
Name:
[_____________________]


	
 

	
 


	
 

	
 


	
Address for
Notice: 


	[___________________________]




 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 


 



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