**Exhibit 4.15**

 

**FORM OF REGISTRATION RIGHTS AGREEMENT**

 

This **REGISTRATION RIGHTSAGREEMENT**(this “**Agreement**”), dated as of January 25, 2024, is by and among Psyence Biomedical Ltd., a corporationexisting under the laws of Ontario, Canada (the “**Company**”), and the undersigned buyers (each, a “**Buyer**,”and collectively, the “**Buyers**”).

 

**RECITALS**

 

A.            Inconnection with the Securities Purchase Agreement by and among the parties hereto, dated as of January 15, 2024 (the “**SecuritiesPurchase Agreement**”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement,to issue and sell to each Buyer the Notes (as defined in the Securities Purchase Agreement) which will be convertible into UnderlyingShares (as defined in the Securities Purchase Agreement) in accordance with the terms of the Notes.

 

B.            Toinduce the Buyers to consummate the transactions contemplated by the Securities Purchase Agreement, the Company has agreed to providecertain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similarsuccessor statute (collectively, the “**1933 Act**”), and applicable state securities laws.

 

**AGREEMENT**

 

**NOW, THEREFORE,**inconsideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Company and each of the Buyers hereby agree as follows:

 

 

Capitalized terms used hereinand not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used in this Agreement,the following terms shall have the following meanings:

 

(a)            “**BusinessDay**” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorizedor required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or requiredby law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or anyother similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority solong as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally areopen for use by customers on such day.

 

(b)            “**ClosingDate**” shall have the meaning set forth in the Securities Purchase Agreement.

 

(c)            “**EffectiveDate**” means the date that the applicable Registration Statement has been declared effective by the SEC.

 

 

 

 

(d)            “**EffectivenessDeadline**” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),the earlier of the (A) 60th calendar day after the First Tranche Closing Date and (B) 2nd Business Dayafter the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will notbe reviewed or will not be subject to further review and (ii) with respect to any additional Registration Statements that may berequired to be filed by the Company pursuant to this Agreement, the earlier of the (A) 60th calendar day following thedate on which the Company was required to file such additional Registration Statement and (B) 2nd Business Day after thedate the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewedor will not be subject to further review.

 

(e)            “**FilingDeadline**” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a),the 15th calendar day after the First Tranche Closing Date and (ii) with respect to any additional Registration Statementsthat may be required to be filed by the Company pursuant to this Agreement, the date on which the Company was required to file such additionalRegistration Statement pursuant to the terms of this Agreement.

 

(f)            “**FirstTranche Closing Date**” shall have the meaning set forth in the Securities Purchase Agreement.

 

(g)            “**Investor**”means a Purchaser or any transferee or assignee of any Registrable Securities or Notes, as applicable, to whom a Purchaser assigns itsrights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9 and anytransferee or assignee thereof to whom a transferee or assignee of any Registrable Securities or Notes, as applicable, assigns its rightsunder this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9.

 

(h)            “**Person**”means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organizationor a government or any department or agency thereof.

 

(i)            “**register**,” “**registered**,” and “**registration**” refer to a registration effected by preparing and filing one ormore Registration Statements in compliance with the 1933 Act and pursuant to Rule 415 and the declaration of effectiveness of suchRegistration Statement(s) by the SEC.

 

(j)            “**RegistrableSecurities**” means (i) the Underlying Shares, and (ii) any capital stock of the Company issued or issuable with respectto the Underlying Shares or the Notes, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization,exchange or similar event or otherwise (2) any Common Shares issued as a result of any “make whole,” penalty or damagesprovisions, of the Securities Purchase Agreement or the Notes and (2) shares of capital stock of the Company into which theCommon Shares (as defined in the Notes) are converted or exchanged and shares of capital stock of a Successor Entity (as defined in theNotes) into which the Common Shares are converted or exchanged, in each case, without regard to any limitations on conversion of theNotes.

 

 

 

 

(k)            “**RegistrationStatement**” means a registration statement or registration statements of the Company filed under the 1933 Act covering RegistrableSecurities.

 

(l)            “**RequiredHolders**” shall mean each of [ ] and [ ] or their permitted assigns.

 

(m)            “**RequiredRegistration Amount**” means, as of any time of determination, 300% of the maximum number of Underlying Shares issuable upon conversionof the Notes (assuming for purposes hereof that any such conversion shall not take into account any limitations on the conversion of theNotes set forth in the Notes), all subject to adjustment as provided in Section 2(d) and/or Section 2(f).

 

(n)            “**Rule 144**”means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similaror successor rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the publicwithout registration.

 

(o)            “**Rule 415**”means Rule 415 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similaror successor rule or regulation of the SEC providing for offering securities on a continuous or delayed basis.

 

(p)            “**SEC**”means the United States Securities and Exchange Commission or any successor thereto.

 

 

(a)            MandatoryRegistration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with theSEC an initial Registration Statement on Form F-3 covering the resale of all of the Registrable Securities, provided that such initialRegistration Statement shall register for resale at least the number of Common Shares equal to the Required Registration Amount as ofthe date such Registration Statement is initially filed with the SEC; provided further that if Form F-3 is unavailable for such aregistration, the Company shall use such other form as is required by Section 2(c). Such initial Registration Statement, and eachother Registration Statement required to be filed pursuant to the terms of this Agreement, shall contain (except if otherwise directedby the Required Holders) the “Selling Stockholders” and “Plan of Distribution” sections in substantiallythe form attached hereto as **Exhibit B**. The Company shall use its best efforts to have such initial Registration Statement,and each other Registration Statement required to be filed pursuant to the terms of this Agreement, declared effective by the SEC as soonas practicable, but in no event later than the applicable Effectiveness Deadline for such Registration Statement.

 

(b)            LegalCounsel. Subject to Section 5 hereof, Loeb & Loeb LLP, counsel solely to the Buyers (“**Legal Counsel**”)shall review and oversee any registration, solely on behalf of the Buyers, pursuant to this Section 2.

 

 

 

 

(c)            Ineligibilityto Use Form F-3. In the event that Form F-3 is not available for the registration of the resale of Registrable Securitieshereunder, the Company shall (i) register the resale of the Registrable Securities on Form F-1 or another appropriate formreasonably acceptable to the Required Holders and (ii) undertake to register the resale of the Registrable Securities onForm F-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of all Registration Statementsthen in effect until such time as a Registration Statement on Form F-3 covering the resale of all the Registrable Securities hasbeen declared effective by the SEC and the prospectus contained therein is available for use.

 

(d)            SufficientNumber of Shares Registered. In the event the number of shares available under any Registration Statement is insufficient to coverall of the Registrable Securities required to be covered by such Registration Statement or an Investor’s allocated portion of theRegistrable Securities pursuant to Section 2(h), the Company shall amend such Registration Statement (if permissible), or file withthe SEC a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least the RequiredRegistration Amount as of the Trading Day immediately preceding the date of the filing of such amendment or new Registration Statement,in each case, as soon as practicable, but in any event not later than fifteen (15) days after the necessity therefor arises (buttaking account of any Staff position with respect to the date on which the Staff will permit such amendment to the Registration Statementand/or such new Registration Statement (as the case may be) to be filed with the SEC). The Company shall use its best efforts to causesuch amendment to such Registration Statement and/or such new Registration Statement (as the case may be) to become effective as soonas practicable following the filing thereof with the SEC, but in no event later than the applicable Effectiveness Deadline for such RegistrationStatement. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed “insufficientto cover all of the Registrable Securities” if at any time the number of Common Shares available for resale under the applicableRegistration Statement is less than the product determined by multiplying (i) the Required Registration Amount as of such time by(ii) 0.90. The calculation set forth in the foregoing sentence shall be made without regard to any limitations on conversion, amortizationand/or redemption of the Notes (and such calculation shall assume (A) that the Notes are then convertible in full into Common Sharesat the then prevailing Conversion Rate (as defined in the Notes) and (B) the initial outstanding principal amount of the Notes remainsoutstanding through the scheduled Maturity Date (as defined in the Notes) and no redemptions of the Notes occur prior to the scheduledMaturity Date).

 

 

 

 

(e)            Effectof Failure to File and Obtain and Maintain Effectiveness of any Registration Statement. If (i) a Registration Statement coveringthe resale of all of the Registrable Securities required to be covered thereby (disregarding any reduction pursuant to Section 2(f))and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadlinefor such Registration Statement (a “**Filing Failure**”) (it being understood that if the Company files a RegistrationStatement without affording each Investor and Legal Counsel the opportunity to review and comment on the same as required by Section 3(c) hereof,the Company shall be deemed to not have satisfied this clause (i)(A) and such event shall be deemed to be a Filing Failure) or (B) notdeclared effective by the SEC on or before the Effectiveness Deadline for such Registration Statement (an “**Effectiveness Failure**”)(it being understood that if on the Business Day immediately following the Effective Date for such Registration Statement the Companyshall not have filed a “final” prospectus for such Registration Statement with the SEC under Rule 424(b) in accordancewith Section 3(b) (whether or not such a prospectus is technically required by such rule), the Company shall be deemed to nothave satisfied this clause (i)(B) and such event shall be deemed to be an Effectiveness Failure), (ii) other than during anAllowable Grace Period (as defined below), on any day after the Effective Date of a Registration Statement sales of all of theRegistrable Securities required to be included on such Registration Statement (disregarding any reduction pursuant to Section 2(f))cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such RegistrationStatement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement,a suspension or delisting of (or a failure to timely list) the Common Shares on the Principal Market (as defined in the Securities PurchaseAgreement) or any other limitations imposed by the Principal Market, or a failure to register a sufficient number of Common Shares orby reason of a stop order) or the prospectus contained therein is not available for use for any reason (a “**Maintenance Failure**”),or (iii) if a Registration Statement is not effective for any reason or the prospectus contained therein is not available for usefor any reason, and either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1), including, withoutlimitation, the failure to satisfy the current public information requirement under Rule 144(c) or (y) the Company hasever been an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfyany condition set forth in Rule 144(i)(2) (a “**Current Public Information Failure**”) as a result of whichany of the Investors are unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation,volume restrictions), then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its abilityto sell the underlying Common Shares (which remedy shall not be exclusive of any other remedies available at law or in equity, including,without limitation, specific performance), the Company shall pay to each holder of Registrable Securities relating to such RegistrationStatement an amount in cash equal to five percent (5%) of such Investor’s original principal amount stated in such Investor’sNote on the Closing Date (1) on the date of such Filing Failure, Effectiveness Failure, Maintenance Failure or Current Public InformationFailure, as applicable, and (2) on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured;(II) an Effectiveness Failure until such Effectiveness Failure is cured; (III) a Maintenance Failure until such MaintenanceFailure is cured; and (IV) a Current Public Information Failure until the earlier of (i) the date such Current Public InformationFailure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144 (in each case,prorated for periods totaling less than thirty (30) days). The payments to which a holder of Registrable Securities shall be entitledpursuant to this Section 2(e) are referred to herein as “**Registration Delay Payments**.” Following the initialRegistration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forthabove), without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty(30) day anniversary of such event or failure, then such Registration Delay Payment shall be made on the third (3rd) BusinessDay after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing,such Registration Delay Payments shall bear interest at the rate of two percent (2%) per month (prorated for partial months) until paidin full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to an Investor (other than with respect to a MaintenanceFailure resulting from a suspension or delisting of (or a failure to timely list) the Common Shares on the Principal Market) with respectto (A) any period during which all of such Investor’s Registrable Securities may be sold by such Investor without restrictionunder Rule 144 (including, without limitation, volume restrictions) and without the need for current public information requiredby Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (B) any failure to register the Required Registered Amountrelated to the Second Tranche Note (other than the initial portion equal to the Market Value Traded as of the Second Tranche Closing),if such failure is solely due to objections from the Staff with respect to the amount or nature of the Underlying Shares being registeredthereunder provided, however, that the Company shall promptly register the balance of the Required Registered Amount in accordance withSection 2(d) of this Agreement.

 

 

 

 

(f)            Offering.Notwithstanding anything to the contrary contained in this Agreement, but subject to the payment of the Registration Delay Payments pursuantto Section 2(e), in the event the staff of the SEC (the “**Staff**”) or the SEC seeks to characterize any offeringpursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities by, or on behalf of,the Company, or in any other manner, such that the Staff or the SEC do not permit such Registration Statement to become effective andused for resales in a manner that does not constitute such an offering and that permits the continuous resale at the market by the Investorsparticipating therein (or as otherwise may be acceptable to each Investor) without being named therein as an “underwriter,”then the Company shall reduce the number of shares to be included in such Registration Statement by all Investors until such time asthe Staff and the SEC shall so permit such Registration Statement to become effective as aforesaid. In making such reduction, the Companyshall reduce the number of shares to be included by all Investors on a pro rata basis (based upon the number of Registrable Securitiesotherwise required to be included for each Investor) unless the inclusion of shares by a particular Investor or a particular set of Investorsare resulting in the Staff or the SEC’s “by or on behalf of the Company” offering position, in which event the sharesheld by such Investor or set of Investors shall be the only shares subject to reduction (and if by a set of Investors on a pro rata basisby such Investors or on such other basis as would result in the exclusion of the least number of shares by all such Investors); provided,that, with respect to such pro rata portion allocated to any Investor, such Investor may elect the allocation of such pro rata portionamong the Registrable Securities of such Investor. In addition, in the event that the Staff or the SEC requires any Investor seekingto sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter”in order to permit such Registration Statement to become effective, and such Investor does not consent to being so named as an underwriterin such Registration Statement, then, in each such case, the Company shall reduce the total number of Registrable Securities to be registeredon behalf of such Investor, until such time as the Staff or the SEC does not require such identification or until such Investor acceptssuch identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities otherthan those issued pursuant to the Securities Purchase Agreement. In the event of any reduction in Registrable Securities pursuant tothis paragraph, an affected Investor shall have the right to require, upon delivery of a written request to the Company signed by suchInvestor, the Company to file a registration statement within twenty (20) days of such request (subject to any restrictions imposed byRule 415 or required by the Staff or the SEC) for resale by such Investor in a manner acceptable to such Investor, and the Companyshall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplatedin this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held bysuch Investor have been registered and sold pursuant to an effective Registration Statement in a manner acceptable to such Investor or(ii) all Registrable Securities may be resold by such Investor without restriction (including, without limitation, volume limitations)pursuant to Rule 144 (taking account of any Staff position with respect to “affiliate” status) and without the needfor current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (iii) such Investoragrees to be named as an underwriter in any such Registration Statement in a manner acceptable to such Investor as to all RegistrableSecurities held by such Investor and that have not theretofore been included in a Registration Statement under this Agreement (it beingunderstood that the special demand right under this sentence may be exercised by an Investor multiple times and with respect to limitedamounts of Registrable Securities in order to permit the resale thereof by such Investor as contemplated above).

 

 

 

 

(g)            PiggybackRegistrations. Without limiting any obligation of the Company hereunder or under the Securities Purchase Agreement, if there is notan effective Registration Statement covering all of the Registrable Securities or the prospectus contained therein is not available foruse and the Company shall determine to prepare and file with the SEC a registration statement or offering statement relating to an offeringfor its own account or the account of others under the 1933 Act of any of its equity securities (other than on Form F-4 or Form S-8(each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection withany acquisition of any entity or business or equity securities issuable in connection with the Company’s stock option or other employeebenefit plans), then the Company shall deliver to each Investor a written notice of such determination and, if within fifteen (15) daysafter the date of the delivery of such notice, any such Investor shall so request in writing, the Company shall include in such registrationstatement or offering statement all or any part of such Registrable Securities such Investor requests to be registered; provided, however,the Company shall not be required to register any Registrable Securities pursuant to this Section 2(g) that are eligible forresale pursuant to Rule 144 without restriction (including, without limitation, volume restrictions) and without the need for currentpublic information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or that are the subject of a then-effectiveRegistration Statement.

 

(h)            Allocationof Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and any increase inthe number of Registrable Securities included therein shall be allocated pro rata among the Investors based on the number of RegistrableSecurities held by each Investor at the time such Registration Statement covering such initial number of Registrable Securities or increasethereof is declared effective by the SEC. In the event that an Investor sells or otherwise transfers any of such Investor’s RegistrableSecurities, each transferee or assignee (as the case may be) that becomes an Investor shall be allocated a pro rata portion of the then-remainingnumber of Registrable Securities included in such Registration Statement for such transferor or assignee (as the case may be). Any CommonShares included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities coveredby such Registration Statement shall be allocated to the remaining Investors, pro rata based on the number of Registrable Securities thenheld by such Investors which are covered by such Registration Statement.

 

(i)            NoInclusion of Other Securities. The Company shall in no event include any securities other than Registrable Securities on any RegistrationStatement filed in accordance herewith without the prior written consent of the Required Holders. Until the Applicable Date (as definedin the Securities Purchase Agreement), the Company shall not enter into any agreement providing any registration rights to any of itssecurity holders, except as otherwise permitted under the Securities Purchase Agreement.

 

 

 

 

 

The Company shall use itsbest efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and,pursuant thereto, the Company shall have the following obligations:

 

(a)            TheCompany shall promptly prepare and file with the SEC a Registration Statement with respect to all the Registrable Securities (but in noevent later than the applicable Filing Deadline) and use its best efforts to cause such Registration Statement to become effective assoon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject to Allowable Grace Periods, theCompany shall keep each Registration Statement effective (and the prospectus contained therein available for use) pursuant to Rule 415for resales by the Investors on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times untilthe earlier of (i) the date as of which all of the Investors may sell all of the Registrable Securities required to be covered bysuch Registration Statement (disregarding any reduction pursuant to Section 2(f)) without restriction pursuant to Rule 144 (including,without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (orRule 144(i)(2), if applicable) or (ii) the date on which the Investors shall have sold all of the Registrable Securities coveredby such Registration Statement (the “**Registration Period**”). Notwithstanding anything to the contrary contained in thisAgreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, withoutlimitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplementsthereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omitto state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in thelight of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporationby reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities. The Companyshall submit to the SEC, within one (1) Business Day after the later of the date that (i) the Company learns that no reviewof a particular Registration Statement will be made by the Staff or that the Staff has no further comments on a particular RegistrationStatement (as the case may be) and (ii) the consent of Legal Counsel is obtained pursuant to Section 3(c) (which consentshall be immediately sought), a request for acceleration of effectiveness of such Registration Statement to a time and date not laterthan twenty-four (24) hours after the submission of such request. The Company shall respond in writing to comments made by the SEC inrespect of a Registration Statement as soon as practicable, but in no event later than fifteen (15) days after the receipt of commentsby or notice from the SEC that an amendment is required in order for a Registration Statement to be declared effective.

 

(b)            Subjectto Section 3(r) of this Agreement, the Company shall prepare and file with the SEC such amendments (including, without limitation,post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such RegistrationStatement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep eachsuch Registration Statement effective at all times during the Registration Period for such Registration Statement, and, during such period,comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company required to becovered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordancewith the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement; provided,however, by 8:30 a.m. (New York time) on the Business Day immediately following each Effective Date, the Company shall file withthe SEC in accordance with Rule 424(b) under the 1933 Act the final prospectus to be used in connection with sales pursuantto the applicable Registration Statement (whether or not such a prospectus is technically required by such rule). In the case of amendmentsand supplements to any Registration Statement which are required to be filed pursuant to this Agreement (including, without limitation,pursuant to this Section 3(b)) by reason of the Company filing a report on Form 8-K, Form 10-Q or Form 10-K or anyanalogous report under the Securities Exchange Act of 1934, as amended (the “**1934 Act**”), the Company shall, if permittedunder the applicable rules and regulations of the SEC, have incorporated such report by reference into such Registration Statement,if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed whichcreated the requirement for the Company to amend or supplement such Registration Statement.

 

 

 

 

(c)            TheCompany shall (A) permit Legal Counsel and legal counsel for each other Investor to review and comment upon (i) each RegistrationStatement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each RegistrationStatement (including, without limitation, the prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reportson Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior totheir filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which LegalCounsel or any legal counsel for any other Investor reasonably objects. The Company shall not submit a request for acceleration of theeffectiveness of a Registration Statement or any amendment or supplement thereto or to any prospectus contained therein without the priorconsent of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall promptly furnish to Legal Counsel and legalcounsel for each other Investor, without charge, (i) copies of any correspondence from the SEC or the Staff to the Company or itsrepresentatives relating to each Registration Statement, provided that such correspondence shall not contain any material, non-publicinformation regarding the Company or any of its Subsidiaries (as defined in the Securities Purchase Agreement), (ii) after the sameis prepared and filed with the SEC, one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto,including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by anInvestor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) copy of the prospectus includedin such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel andlegal counsel for each other Investor in performing the Company’s obligations pursuant to this Section 3.

 

(d)            TheCompany shall promptly furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge,(i) after the same is prepared and filed with the SEC, at least one (1) copy of each Registration Statement and any amendment(s) andsupplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein byreference, if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of each RegistrationStatement, ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto(or such other number of copies as such Investor may reasonably request from time to time) and (iii) such other documents, including,without limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time inorder to facilitate the disposition of the Registrable Securities owned by such Investor.

 

 

 

 

(e)            TheCompany shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies,the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky”laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including,without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintainthe effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrationsand qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary oradvisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, the Company shall not be required inconnection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise berequired to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) filea general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel, legal counsel for eachother Investor and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to thesuspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky”laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for suchpurpose.

 

(f)            TheCompany shall notify Legal Counsel, legal counsel for each other Investor and each Investor in writing of the happening of any event,as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement,as then in effect, may include an untrue statement of a material fact or omission to state a material fact required to be stated thereinor necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided thatin no event shall such notice contain any material, non-public information regarding the Company or any of its Subsidiaries), and, subjectto Section 3(r), promptly prepare a supplement or amendment to such Registration Statement and such prospectus contained thereinto correct such untrue statement or omission and deliver ten (10) copies of such supplement or amendment to Legal Counsel, legalcounsel for each other Investor and each Investor (or such other number of copies as Legal Counsel, legal counsel for each other Investoror such Investor may reasonably request). The Company shall also promptly notify Legal Counsel, legal counsel for each other Investorand each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, whena Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be deliveredto Legal Counsel, legal counsel for each other Investor and each Investor by e-mail on the same day of such effectiveness and by overnightmail), and when the Company receives written notice from the SEC that a Registration Statement or any post-effective amendment will bereviewed by the SEC, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectusor related information, (iii) of the Company’s reasonable determination that a post- effective amendment to a RegistrationStatement would be appropriate; and (iv) of the receipt of any request by the SEC or any other federal or state governmental authorityfor any additional information relating to the Registration Statement or any amendment or supplement thereto or any related prospectus.The Company shall respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statementor any amendment thereto (it being understood and agreed that the Company’s response to any such comments shall be delivered tothe SEC no later than fifteen (15) Business Days after the receipt thereof).

 

 

 

 

(g)            TheCompany shall (i) use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of each RegistrationStatement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification,of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawalof such order or suspension at the earliest possible moment and (ii) notify Legal Counsel, legal counsel for each other Investorand each Investor who holds Registrable Securities of the issuance of such order and the resolution thereof or its receipt of actual noticeof the initiation or threat of any proceeding for such purpose.

 

(h)            Ifany Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and suchInvestor consents to so being named an underwriter, at the request of any Investor, the Company shall furnish to such Investor, on thedate of the effectiveness of such Registration Statement and thereafter from time to time on such dates as an Investor may reasonablyrequest (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance asis customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to theInvestors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement,in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Investors.

 

(i)            Ifany Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and suchInvestor consents to so being named an underwriter, upon the written request of such Investor, the Company shall make available for inspectionby (i) such Investor, (ii) legal counsel for such Investor and (iii) one (1) firm of accountants or other agentsretained by such Investor (collectively, the “**Inspectors**”), all pertinent financial and other records, and pertinentcorporate documents and properties of the Company (collectively, the “**Records**”), as shall be reasonably deemed necessaryby each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector mayreasonably request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not to make any disclosure(except to such Investor) or use of any Record or other information which the Company’s board of directors determines in good faithto be confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure of such Records is necessaryto avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (2) therelease of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competentjurisdiction, or (3) the information in such Records has been made generally available to the public other than by disclosure inviolation of this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement). Such Investor agreesthat it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdictionor through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to preventdisclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentialityagreement between the Company and such Investor, if any) shall be deemed to limit any Investor’s ability to sell RegistrableSecurities in a manner which is otherwise consistent with applicable laws and regulations.

 

 

 

 

(j)            TheCompany shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosureof such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessaryto avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed in such RegistrationStatement pursuant to the 1933 Act, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealableorder from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available tothe public other than by disclosure in violation of this Agreement or any other Transaction Document. The Company agrees that it shall,upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competentjurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at such Investor’s expense,to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

 

(k)            Withoutlimiting any obligation of the Company under the Securities Purchase Agreement, the Company shall use its best efforts either to (i) causeall of the Registrable Securities covered by each Registration Statement to be listed on each securities exchange on which securitiesof the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permittedunder the rules of such exchange, (ii) secure designation and quotation of all of the Registrable Securities covered by eachRegistration Statement on an Eligible Market (as defined in the Securities Purchase Agreement), or (iii) if, despite the Company’sbest efforts to satisfy the preceding clauses (i) or (ii) the Company is unsuccessful in satisfying the preceding clauses (i) or(ii), without limiting the generality of the foregoing, to use its best efforts to arrange for at least two market makers to registerwith the Financial Industry Regulatory Authority (“**FINRA**”) as such with respect to such Registrable Securities. Inaddition, the Company shall cooperate with each Investor and any broker or dealer through which any such Investor proposes to sell itsRegistrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by such Investor. The Company shallpay all fees and expenses in connection with satisfying its obligations under this Section 3(k).

 

(l)            TheCompany shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate thetimely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offeredpursuant to a Registration Statement and enable such certificates to be in such denominations or amounts (as the case may be) as the Investorsmay reasonably request from time to time and registered in such names as the Investors may request.

 

(m)            Ifrequested by an Investor, the Company shall as soon as practicable after receipt of notice from such Investor and subject to Section 3(r) hereof,(i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to beincluded therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respectto the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offeringof the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement orpost-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;and (iii) supplement or make amendments to any Registration Statement or prospectus contained therein if reasonably requested byan Investor holding any Registrable Securities.

 

 

 

 

(n)            TheCompany shall use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approvedby such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.

 

(o)            TheCompany shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the closeof the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next followingthe applicable Effective Date of each Registration Statement.

 

(p)            TheCompany shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with anyregistration hereunder.

 

(q)            Withinone (1) Business Day after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Companyshall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copiesto the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statementhas been declared effective by the SEC in the form attached hereto as **Exhibit A**.

 

(r)            Notwithstandinganything to the contrary herein (but subject to the last sentence of this Section 3(r)), at any time after the Effective Date ofa particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Companyor any of its Subsidiaries the disclosure of which at the time is not, in the good faith opinion of the board of directors of the Company,in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “**Grace Period**”),provided that the Company shall promptly notify the Investors in writing of the (i) existence of material, non-public informationgiving rise to a Grace Period (provided that in each such notice the Company shall not disclose the content of such material, non-publicinformation to any of the Investors) and the date on which such Grace Period will begin and (ii) date on which such Grace Periodends, provided further that (I) no Grace Period shall exceed ten (10) consecutive days and during any three hundredsixty five (365) day period all such Grace Periods shall not exceed an aggregate of thirty (30) days, (II) the first day of anyGrace Period must be at least five (5) Trading Days after the last day of any prior Grace Period and (III) no Grace Periodmay exist during the sixty (60) Trading Day period immediately following the Effective Date of such Registration Statement (providedthat such sixty (60) Trading Day period shall be extended by the number of Trading Days during such period and any extension thereofcontemplated by this proviso during which such Registration Statement is not effective or the prospectus contained therein is not availablefor use) (each, an “**Allowable Grace Period**”). For purposes of determining the length of a Grace Period above, suchGrace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) above and shall endon and include the later of the date the Investors receive the notice referred to in clause (ii) above and the date referred toin such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period.Upon expiration of each Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect tothe information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything tothe contrary contained in this Section 3(r), the Company shall cause its transfer agent to deliver unlegended Common Shares to atransferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of RegistrableSecurities with respect to which such Investor has entered into a contract for sale, and delivered a copy of the prospectus includedas part of the particular Registration Statement to the extent applicable, prior to such Investor’s receipt of the notice of aGrace Period and for which the Investor has not yet settled.

 

 

 

 

(s)            TheCompany shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investors of its RegistrableSecurities pursuant to each Registration Statement.

 

(t)            Neitherthe Company nor any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing withthe SEC, the Principal Market or any Eligible Market and any Buyer being deemed an underwriter by the SEC shall not relieve the Companyof any obligations it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement); provided,however, that the foregoing shall not prohibit the Company from including the disclosure found in the "Plan of Distribution"section attached hereto as Exhibit B in the Registration Statement.

 

(u)            Neitherthe Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or afterthe date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rightsgranted to the Buyers in this Agreement or otherwise conflicts with the provisions hereof.

 

 

(a)            Atleast five (5) Business Days prior to the first anticipated filing date of each Registration Statement, the Company shall notifyeach Investor in writing of the information the Company requires from each such Investor with respect to such Registration Statement.It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respectto the Registrable Securities of a particular Investor that such Investor shall furnish 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 reasonablyrequired to effect and maintain the effectiveness of the registration of such Registrable Securities and shall execute such documentsin connection with such registration as the Company may reasonably request.

 

(b)            EachInvestor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requestedby the Company in connection with the preparation and filing of each Registration Statement hereunder, unless such Investor has notifiedthe Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from such RegistrationStatement.

 

 

 

 

(c)            EachInvestor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(g) orthe first sentence of 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to any RegistrationStatement(s) covering such Registrable Securities until such Investor’s receipt of the copies of the supplemented or amendedprospectus contemplated by Section 3(g) or the first sentence of Section 3(f) or receipt of notice that no supplementor amendment is required. Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause its transfer agentto deliver unlegended Common Shares to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement inconnection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale prior to theInvestor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(g) orthe first sentence of Section 3(f) and for which such Investor has not yet settled.

 

 

All reasonable expenses, otherthan underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, FINRA filingfees (if any) and fees and disbursements of counsel for the Company shall be paid by the Company. The Company shall reimburse Legal Counselfor its fees and disbursements in connection with registration, filing or qualification pursuant to Sections 2 and 3 of this Agreementwhich amount shall be limited to $25,000 for each such registration, filing or qualification.

 

 

(a)            Tothe fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor and each ofits directors, officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons with afunctionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) and each Person,if any, who controls such Investor within the meaning of the 1933 Act or the 1934 Act and each of the directors, officers, shareholders,members, partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Personholding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “**IndemnifiedPerson**”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges,costs (including, without limitation, court costs, reasonable attorneys’ fees and costs of defense and investigation), amountspaid in settlement or expenses, joint or several, (collectively, “**Claims**”) incurred in investigating, preparing ordefending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental,administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an Indemnified Person is ormay be a party thereto (“**Indemnified Damages**”), to which any of them may become subject insofar as such Claims (oractions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statementor alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing madein connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction inwhich Registrable Securities are offered (“**Blue Sky Filing**”), or the omission or alleged omission to state a materialfact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statementor alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such RegistrationStatement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplementthereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein,in light of the circumstances under which the statements therein were made, not misleading or (iii) any violation or alleged violationby the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state securities law, or any rule orregulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) anyviolation of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “**Violations**”).Subject to Section 6(c), the Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are dueand payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any suchClaim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a):(i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon andin conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly foruse in connection with the preparation of such Registration Statement or any such amendment thereof or supplement thereto, if such prospectuswas timely made available by the Company pursuant to Section 3(d); and (ii) shall not apply to amounts paid in settlement ofany Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheldor delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the IndemnifiedPerson and shall survive the transfer of any of the Registrable Securities by any of the Investors pursuant to Section 9.

 

 

 

 

(b)            Inconnection with any Registration Statement in which an Investor is participating, such Investor agrees to severally and not jointly indemnify,hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors,each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the1933 Act or the 1934 Act (each, an “**Indemnified Party**”), against any Claim or Indemnified Damages to which any ofthem may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of orare based upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance upon and inconformity with written information furnished to the Company by such Investor expressly for use in connection with such RegistrationStatement; and, subject to Section 6(c) and the below provisos in this Section 6(b), such Investor will reimburse an IndemnifiedParty any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any suchClaim; provided, however, the indemnity agreement contained in this Section 6(b) and the agreement with respect to contributioncontained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the priorwritten consent of such Investor, which consent shall not be unreasonably withheld or delayed, provided further that such Investor shallbe liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceedsto such Investor as a result of the applicable sale of Registrable Securities pursuant to such Registration Statement. Such indemnityshall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shallsurvive the transfer of any of the Registrable Securities by any of the Investors pursuant to Section 9.

 

 

 

 

(c)            Promptlyafter receipt by an Indemnified Person or Indemnified Party (as the case may be) under this Section 6 of notice of the commencementof any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such IndemnifiedPerson or Indemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party underthis Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shallhave the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarlynoticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Personor the Indemnified Party (as the case may be); provided, however, an Indemnified Person or Indemnified Party (as the case may be) shallhave the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) theindemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly toassume the defense of such Claim and to employ counsel reasonably satisfactory to such Indemnified Person or Indemnified Party (as thecase may be) in any such Claim; or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties)include both such Indemnified Person or Indemnified Party (as the case may be) and the indemnifying party, and such Indemnified Personor such Indemnified Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely to exist if thesame counsel were to represent such Indemnified Person or such Indemnified Party and the indemnifying party (in which case, if such IndemnifiedPerson or such Indemnified Party (as the case may be) notifies the indemnifying party in writing that it elects to employ separate counselat the expense of the indemnifying party, then the indemnifying party shall not have the right to assume the defense thereof and suchcounsel shall be at the expense of the indemnifying party, provided further that in the case of clause (iii) above the indemnifyingparty shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for such IndemnifiedPerson or Indemnified Party (as the case may be). The Indemnified Party or Indemnified Person (as the case may be) shall reasonably cooperatewith the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shallfurnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person (as the case maybe) which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person (as the casemay be) reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifyingparty shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however,the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the priorwritten consent of the Indemnified Party or Indemnified Person (as the case may be), consent to entry of any judgment or enter into anysettlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to suchIndemnified Party or Indemnified Person (as the case may be) of a release from all liability in respect to such Claim or litigation,and such settlement shall not include any admission as to fault on the part of the Indemnified Party. Following indemnification as providedfor hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person (as the case maybe) with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. Thefailure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall notrelieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party (as the case may be) under this Section 6,except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend such action.

 

 

 

 

(d)            Theindemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigationor defense, as and when bills are received or Indemnified Damages are incurred.

 

 (e)            The indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.

 

 

To the extent any indemnificationby an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respectto any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however:(i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the faultstandards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Personis guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such saleshall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation;and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount of net proceeds receivedby such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement. Notwithstanding the provisionsof this Section 7, no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which thenet proceeds actually received by such Investor from the applicable sale of the Registrable Securities subject to the Claim exceeds theamount of any damages that such Investor has otherwise been required to pay, or would otherwise be required to pay under Section 6(b),by reason of such untrue or alleged untrue statement or omission or alleged omission.

 

 

With a view to making availableto the Investors the benefits of Rule 144, the Company agrees to:

 

(a)            makeand keep public information available, as those terms are understood and defined in Rule 144;

 

(b)            filewith the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long asthe Company remains subject to such requirements (it being understood and agreed that nothing herein shall limit any obligations of theCompany under the Securities Purchase Agreement) and the filing of such reports and other documents is required for the applicable provisionsof Rule 144; and

 

 

 

 

(c)            furnishto each Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company,if true, that it has complied with the reporting, submission and posting requirements of Rule 144, the 1933 Act and the 1934 Act,(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed bythe Company with the SEC if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonablyrequested to permit the Investors to sell such securities pursuant to Rule 144 without registration.

 

 

All or any portion of therights under this Agreement shall be automatically assignable by each Investor to any transferee or assignee (as the case may be) of allor any portion of such Investor’s Registrable Securities or Notes if: (i) such Investor agrees in writing with such transfereeor assignee (as the case may be) to assign all or any portion of such rights, and a copy of such agreement is furnished to the Companywithin a reasonable time after such transfer or assignment (as the case may be); (ii) the Company is, within a reasonable time aftersuch transfer or assignment (as the case may be), furnished with written notice of (a) the name and address of such transferee orassignee (as the case may be), and (b) the securities with respect to which such registration rights are being transferred or assigned(as the case may be); (iii) immediately following such transfer or assignment (as the case may be) the further disposition of suchsecurities by such transferee or assignee (as the case may be) is restricted under the 1933 Act or applicable state securities laws ifso required; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentencesuch transferee or assignee (as the case may be) agrees in writing with the Company to be bound by all of the provisions contained herein;(v) such transfer or assignment (as the case may be) shall have been made in accordance with the applicable requirements of the SecuritiesPurchase Agreement and the Notes (as the case may be); and (vi) such transfer or assignment (as the case may be) shall have beenconducted in accordance with all applicable federal and state securities laws.

 

 

**PROVISIONS OF THIS AGREEMENTMAY BE AMENDED AND THE OBSERVANCE THEREOF MAY BE WAIVED (EITHER GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELYOR PROSPECTIVELY), ONLY WITH THE WRITTEN CONSENT OF THE COMPANY AND THE REQUIRED HOLDERS; PROVIDED THAT ANY SUCH AMENDMENT OR WAIVERTHAT COMPLIES WITH THE FOREGOING, BUT THAT DISPROPORTIONATELY, MATERIALLY AND ADVERSELY AFFECTS THE RIGHTS AND OBLIGATIONS OF ANY INVESTORRELATIVE TO THE COMPARABLE RIGHTS AND OBLIGATIONS OF THE OTHER INVESTORS SHALL REQUIRE THE PRIOR WRITTEN CONSENT OF SUCH ADVERSELY AFFECTEDINVESTOR. ANY AMENDMENT OR WAIVER EFFECTED IN ACCORDANCE WITH THIS SECTION 10 SHALL BE BINDING UPON EACH INVESTOR AND THE COMPANY,PROVIDED THAT NO SUCH AMENDMENT SHALL BE EFFECTIVE TO THE EXTENT THAT IT (1) APPLIES TO LESS THAN ALL OF THE HOLDERS OF REGISTRABLESECURITIES OR (2) IMPOSES ANY OBLIGATION OR LIABILITY ON ANY INVESTOR WITHOUT SUCH INVESTOR’S PRIOR WRITTEN CONSENT (WHICHMAY BE GRANTED OR WITHHELD IN SUCH INVESTOR’S SOLE DISCRETION). NO WAIVER SHALL BE EFFECTIVE UNLESS IT IS IN WRITING AND SIGNEDBY AN AUTHORIZED REPRESENTATIVE OF THE WAIVING PARTY. NO CONSIDERATION SHALL BE OFFERED OR PAID TO ANY PERSON TO AMEND OR CONSENT TOA WAIVER OR MODIFICATION OF ANY PROVISION OF THIS AGREEMENT UNLESS THE SAME CONSIDERATION (OTHER THAN THE REIMBURSEMENT OF LEGAL FEES)ALSO IS OFFERED TO ALL OF THE PARTIES TO THIS AGREEMENT.**

 

 

 

 

 

(a)            Solelyfor purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns, or is deemed toown, of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Personswith respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received fromsuch record owner of such Registrable Securities.

 

(b)            Anynotices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writingand will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronicmail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party doesnot receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to suchrecipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified,in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communicationsshall be:

 

If to the Company:

 

With a copy (for informational purposes only) to:

 

If to the Transfer Agent:

 

Continental Stock Transfer & Trust Company

1 State Street, 30th floor

New York, NY 10004

Telephone: (212) 509-4000

Attention:

E-Mail:

 

 

 

 

If to Legal Counsel:

 

Loeb & Loeb LLP

345 Park Avenue

New York, NY 10154

Attention: Mitchell S. Nussbaum

Email: mnussbaum@loeb.com

 

If to a Buyer, to its mailing address and/oremail address set forth on the Schedule of Buyers attached to the Securities Purchase Agreement, with copies to such Buyer’s representativesas set forth on the Schedule of Buyers, or to such other mailing address and/or email address and/or to the attention of such other Personas the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of suchchange. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanicallyor electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) providedby a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationallyrecognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

 

(c)            AnyInvestor may deliver a written notice (an “**Opt-Out Notice**”) to the Company requesting that such Investor not receivenotices from the Company otherwise required by the last sentence of Section 3(e), the first sentence of Section 3(f) orSection 3(g)(ii); provided, however, that the Investor may later revoke any such Opt-Out Notice in writing. Following receipt ofan Opt-Out Notice from the Investor (unless subsequently revoked), (i) the Company shall not deliver any such notices to the Investorand the Investor shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the Investor’sintended use of an effective Registration Statement, the Investor will notify the Company in writing at least two (2) Business Daysin advance of such intended use, and if a notice of an event contemplated by Section 3 was previously delivered (or would have beendelivered but for the provisions of this Section 11(c)) and a related suspension period remains in effect, the Company will so notifythe Investor within one (1) Business Day of the Investor’s notification to the Company by delivering to the Investor a copyof such previous notice provided to the other Investors.

 

(d)            Failureof any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy,shall not operate as a waiver thereof. The Company and each Investor acknowledge and agree that irreparable damage would occur in theevent that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.It is accordingly agreed that each party hereto shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisionsof this Agreement by any other party hereto and to enforce specifically the terms and provisions hereof (without the necessity of showingeconomic loss and without any bond or other security being required), this being in addition to any other remedy to which any party maybe entitled by law or equity.

 

 

 

 

(e)            Allquestions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal lawsof the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the Stateof New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of NewYork. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The Cityof New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplatedhereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim thatit is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenientforum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of processand consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address forsuch notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and noticethereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACHPARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTEHEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

(f)            Ifany provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent thatit would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remainingprovisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentionsof the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in questiondoes not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of thebenefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,invalid or unenforceable provision(s).

 

(g)            ThisAgreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced hereinand therein constitute the entire agreement among the parties hereto and thereto solely with respect to the subject matter hereof andthereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein.This Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referencedherein and therein supersede all prior agreements and understandings among the parties hereto solely with respect to the subject matterhereof and thereof; provided, however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemedto) (i) have any effect on any agreements any Investor has entered into with the Company or any of its Subsidiaries prior to thedate hereof with respect to any prior investment made by such Investor in the Company, (ii) waive, alter, modify or amend in anyrespect any obligations of the Company or any of its Subsidiaries or any rights of or benefits to any Investor or any other Person inany agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Investor and allsuch agreements shall continue in full force and effect or (iii) limit any obligations of the Company under any of the other TransactionDocuments.

 

 

 

 

(h)            Subjectto compliance with Section 9 (if applicable), this Agreement shall inure to the benefit of and be binding upon the permitted successorsand assigns of each of the parties hereto. This Agreement is not for the benefit of, nor may any provision hereof be enforced by, anyPerson, other than the parties hereto, their respective permitted successors and assigns and the Persons referred to in Sections 6 and7 hereof.

 

(i)            Theheadings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless thecontext clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and pluralforms thereof. The terms “including,” “includes,” “include” and words of like import shall be construedbroadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof”and words of like import refer to this entire Agreement instead of just the provision in which they are found.

 

(j)            ThisAgreement may be executed in two or more identical counterparts, each of which shall be deemed an original, but all of which shall beconsidered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to theother party. In the event that any signature is delivered by facsimile transmission or by an email which contains a portable documentformat (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing(or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

(k)            Eachparty shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all suchother agreements, certificates, instruments and documents as any other party may reasonably request in order to carry out the intent andaccomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

(l)            Thelanguage used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules ofstrict construction will be applied against any party. Notwithstanding anything to the contrary set forth in Section 10, terms usedin this Agreement but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the First Tranche ClosingDate in such other Transaction Documents unless otherwise consented to in writing by each Investor.

 

(m)            Allconsents and other determinations required to be made by the Investors pursuant to this Agreement shall be made, unless otherwise specifiedin this Agreement, by the Required Holders, determined as if all of the outstanding Notes then held by the Investors have been convertedfor Registrable Securities without regard to any limitations on redemption, amortization and/or conversion of the Notes then held by Investors.

 

(n)            ThisAgreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for thebenefit of, nor may any provision hereof be enforced by, any other Person.

 

 

 

 

(o)            Theobligations of each Investor under this Agreement and the other Transaction Documents are several and not joint with the obligations ofany other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor underthis Agreement or any other Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken byany Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as, and the Company acknowledges that the Investorsdo not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption thatthe Investors are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplatedby the Transaction Documents or any matters, and the Company acknowledges that the Investors are not acting in concert or as a group,and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement orany of the other the Transaction Documents. Each Investor shall be entitled to independently protect and enforce its rights, including,without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessaryfor any other Investor to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respectto the obligations of the Company contained herein was solely in the control of the Company, not the action or decision of any Investor,and was done solely for the convenience of the Company and not because it was required or requested to do so by any Investor. It is expresslyunderstood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company andan Investor, solely, and not between the Company and the Investors collectively and not between and among Investors.

 

[signature page follows]

 

 

 

 

**IN WITNESS WHEREOF**, eachBuyer and the Company have caused their respective signature page to this Registration Rights Agreement to be duly executed as ofthe date first written above.

 

 

***[Signature Page toRegistration Rights Agreement]*** 

 

 

 

**IN WITNESS WHEREOF**, each Buyer and the Company have causedtheir respective signature page to this Registration Rights Agreement to be duly executed as of the date first written above.

 

 

 

 

** **