Exhibit 4.4


	
  

 	
  

 	
  

 
	
  

 	 

 	
  

 
	
  

 
	
  

 	
  ‘mktg, inc.’ Registration Rights Agreement

 	
  

 
	
  

 
	
  

 	 

 	
  

 










TABLE OF CONTENTS


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 1.

 	
  

 	
 DEFINITIONS

 	
  

 	
 1

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 2.

 	
  

 	
 REGISTRATION

 	
  

 	
 3

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 A.

 	
 REGISTRATION REQUIREMENTS

 	
  

 	
 3

 
	
  

 	
  

 	
 B.

 	
 ALLOCATION OF REGISTRABLE SECURITIES

 	
  

 	
 3

 
	
  

 	
  

 	
 C.

 	
 LEGAL COUNSEL

 	
  

 	
 4

 
	
  

 	
  

 	
 D.

 	
 INELIGIBILITY FOR FORM S-3

 	
  

 	
 4

 
	
  

 	
  

 	
 E.

 	
 TERMINATION OF REGISTRATION RIGHTS

 	
  

 	
 4

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 3.

 	
  

 	
 RELATED OBLIGATIONS

 	
  

 	
 4

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 4.

 	
  

 	
 OBLIGATIONS OF THE INVESTORS

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 5.

 	
  

 	
 EXPENSES OF REGISTRATION

 	
  

 	
 10

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 6.

 	
  

 	
 INDEMNIFICATION

 	
  

 	
 11

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 7.

 	
  

 	
 CONTRIBUTION

 	
  

 	
 13

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 8.

 	
  

 	
 REPORTS UNDER THE 1934 ACT

 	
  

 	
 14

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 9.

 	
  

 	
 ASSIGNMENT OF REGISTRATION RIGHTS

 	
  

 	
 14

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 10.

 	
  

 	
 AMENDMENT OF REGISTRATION RIGHTS

 	
  

 	
 15

 
	
  

 	
  

 	
  

 	
  

 	
  

 
	
 11.

 	
  

 	
 MISCELLANEOUS

 	
  

 	
 15

 


i






REGISTRATION RIGHTS AGREEMENT


                    REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of October
[_________], 2009 by and among ‘mktg, inc.’, a Delaware corporation, with
headquarters located at 75 Ninth Avenue, New York, New York 10011 (the “Company”),
and the undersigned buyers (each, a “Buyer”, and collectively, the “Buyers”).


                    WHEREAS:


                    A.          In
connection with the Securities Purchase Agreement by and among the parties
hereto of even date herewith (the “Securities Purchase Agreement”), the
Company has agreed, upon the terms and subject to the conditions set forth in
the Securities Purchase Agreement, to issue and sell to each Buyer (i)
preferred shares of the Company designated as Series D Preferred Stock, the
terms of which are set forth in the certificate of designations for such series
of preferred shares (the “Certificate of Designations”) in the form
attached as Exhibit A to the Securities Purchase Agreement (the “Preferred
Shares”) which, among other things, will be convertible into shares of the Company’s
common stock, par value $0.001 per share (the “Common Stock”) (as
converted, the “Conversion Shares”), in accordance with the terms of the
Certificate of Designations, (ii) senior secured notes and (iii) warrants (the
“Warrants”), which will be exercisable to purchase shares of Common
Stock (as exercised, the “Warrant Shares”).


                    B.          In
accordance with the terms of the Securities Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933,
as amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the “1933 Act”), and applicable state securities
laws.


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


          1.       Definitions.


                    Capitalized
terms used herein and 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)          “Business
Day” means any day other than Saturday, Sunday or any other day on which
commercial banks in the City of New York are authorized or required by law to
remain closed.


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


                    (c)          “Effective
Date” means the date that the Registration Statement has been declared
effective by the SEC.






                    (d)          “Effectiveness
Deadline” means the date which is (i) in the event that the Registration
Statement is not subject to any review by the SEC, ninety (90) days after the
date the Company receives a Demand Request under Section 2.a., or (ii)
in the event that the Registration Statement is subject to any review by the
SEC, one hundred twenty (120) days after the Closing date the Company receives
such Demand Reuquest.


                    (e)          “Investor”
means a Buyer or any transferee or assignee thereof to whom a Buyer assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9 and any transferee or
assignee thereof to whom a transferee or assignee assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 9.


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


                    (g)          “register,”
“registered, “and “registration” refer to a registration effected
by preparing and filing one or more Registration Statements (as defined below)
in compliance with the 1933 Act and pursuant to Rule 415, and the declaration
or ordering of effectiveness of such Registration Statement(s) by the SEC.


                    (h)          “Registrable
Securities” means (i) the Conversion Shares issued or issuable upon
conversion of the Preferred Shares, (ii) the Warrant Shares issued or issuable
upon exercise of the Warrants and (iii) any capital stock of the Company issued
or issuable with respect to the Warrants, the Warrant Shares, the Preferred
Shares or the Conversion Shares, whether as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise.


                    (i)          “Registration
Statement” means a registration statement or registration statements of the
Company filed under the 1933 Act covering the Registrable Securities.


                    (j)          “Required
Holders” means the holders of at least a majority of the Registrable
Securities.


                    (k)          “Rule
415” means Rule 415 under the 1933 Act or any successor rule providing for
offering securities on a continuous or delayed basis.


                    (l)          “SEC”
means the United States Securities and Exchange Commission.


                    (m)          “SEC
Guidance” means (i) any publicly-available written or oral guidance,
comments, requirements or requests of the SEC staff and (ii) the Securities
Act.


2






          2.       Registration.


          a.       Registration
Requirements. At any time and from time to time after the date hereof, the Required Holders may
request registration under the 1933 Act of all or any portion of their
Registrable Securities on Form S-3 (or, if Form S-3 is not then available to
the Company, then on (i) Form S-1 or (ii) such other form of registration statement
as is then available to effect a registration for resale of the Registrable
Securities) (the “Registration Statement”). The Registration Statement
shall contain (except if otherwise directed by the Required Holders) the “Selling
Stockholders” and “Plan of Distribution” sections in substantially
the form attached hereto as Exhibit B. All registrations requested by
the Required Holders pursuant to this Section 2(a) are referred to
herein as “Demand Registrations.” Each request (a “Demand Request”) for
a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered, the anticipated per share or per unit
price range for such offering and the intended method of distribution; provided,
however, that no such Demand Registration shall cover more than
twenty-five percent (25%) of the total amount of the Company’s shares available
for trading as of the date of such registration request. Within ten (10) days
after receipt of any such request, the Company shall give written notice of
such requested registration to all other holders of Registrable Securities and
shall include in such registration (and in all related registrations and
qualifications under state blue sky laws and in compliance with other
registration requirements and in any related underwriting) all such Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within twenty (20) days after the receipt of the Company’s
notice.


                    b.          Notwithstanding
the registration obligations set forth in this Section 2, in the event that the
SEC informs the Company that all of the Registrable Securities may not, as a
result of the application of Rule 415 or any other applicable securities law,
rule or regulation, be registered for resale as a secondary offering on a
single registration statement, the Company agrees to (i) promptly inform each
of the Required Holders thereof, and (ii) use commercially reasonable efforts
to promptly file amendments to the Registration Statement as required by the
SEC and/or (iii) promptly withdraw the Registration Statement and, if
applicable, promptly file a new registration statement (a “New Registration
Statement”), in either case, covering the maximum number of Registrable
Securities permitted to be registered by the SEC on Form S-3 or such other form
available to register for resale the Registrable Securities as a secondary
offering to the extent the Company is then eligible to use any such form; provided,
however, that prior to filing such amendment or New Registration
Statement, the Company shall be obligated to use reasonable efforts to advocate
with the SEC for the registration of all of the Registrable Securities in
accordance with SEC Guidance. In the event that the Company amends the
Registration Statement or files a New Registration Statement, as the case may
be, under clauses (ii) or (iii) above, the Company will use commercially
reasonable efforts to file with the SEC, as promptly as allowed by the SEC or
SEC Guidance provided to the Company or to registrants of securities in
general, one or more registration statements on Form S-3 or such other form
available to register for resale those Registrable Securities that were not
registered for resale on the Registration Statement, as amended, or the New
Registration Statement (the “Remainder Registration Statements”).


          b.          Allocation
of Registrable Securities. The initial number of Registrable Securities
included in any Registration Statement and any increase in the number of
Registrable Securities included therein shall be allocated pro rata among the
Investors based on the number of Registrable Securities held by each Investor
at the time the Registration Statement covering such initial number of
Registrable Securities or increase thereof is declared effective by the SEC. In
the event that an Investor sells or otherwise transfers any of such Investor’s
Registrable Securities, each transferee shall be allocated a pro rata portion
of the then remaining number of Registrable Securities included in such
Registration Statement for such transferor. Any shares of Common Stock included
in a Registration Statement and which remain allocated to any Person which
ceases to hold any Registrable Securities covered by such Registration
Statement shall be allocated to the remaining Investors, pro rata based on the
number of Registrable Securities then held by such Investors which are covered
by such Registration Statement. In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Required Holders.


3






          c.          Legal
Counsel. Subject to Section 5 hereof, the Required Holders shall
have the right to select one legal counsel to review and oversee any
registration pursuant to this Section 2 (“Legal Counsel”), which
shall be Finn Dixon & Herling LLP or such other counsel as thereafter
designated by the Required Holders. The Company and Legal Counsel shall
reasonably cooperate with each other in performing the Company’s obligations
under this Agreement.


          d.          Ineligibility
for Form S-3. In the event that Form S-3 is not available for the
registration of the resale of Registrable Securities hereunder, the Company
shall (i) register the resale of the Registrable Securities on another
appropriate form reasonably acceptable to the Required Holders and (ii)
undertake to register the Registrable Securities on Form S-3 as soon as such
form is available, provided that the Company shall maintain the effectiveness
of the Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.


          e.          Termination
of Registration Rights. The Company shall not be required to effect a
registration pursuant to this Section 2 after the Company has effected
four (4)registrations
pursuant to this Section 2. The right of any Holder to request
registration or inclusion of Registrable Securities in any registration
pursuant to Section 2 hereof shall terminate upon such time as all
Registrable Securities then held by and issuable to such Holder (and its
affiliates) may be sold pursuant to Rule 144 during any ninety (90) day period.
Upon such termination, such shares shall cease to be “Registrable Securities”
hereunder for all purposes.


          3.          Related
Obligations.


                       At
such time as the Company is obligated to file a Registration Statement with the
SEC pursuant to Section 2(a) or 2(d), the Company will use
commercially reasonable 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.          The
Company shall promptly prepare and file with the SEC a Registration Statement
with respect to the Registrable Securities and use its reasonable best efforts
to cause such Registration Statement relating to the Registrable Securities to
become effective as soon as practicable after such filing (but in no event
later than the Effectiveness Deadline). The Company shall keep each
Registration Statement effective pursuant to Rule 415 at all times until the
earlier of (i) one year following the Effectiveness Date of such Registration
Statement, and (ii) the date on which the Investors shall have sold all of the
Registrable Securities covered by such Registration Statement (the “Registration
Period”). The Company shall ensure that each Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein) shall not contain any 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 prospectuses, in the light of the
circumstances in which they were made) not misleading. The term “reasonable
best efforts” shall mean, among other things, that the Company shall submit to
the SEC, within three (3) Business Days after the later of the date that (i)
the Company learns that no review of a particular Registration Statement will
be made by the staff of the SEC or that the staff has no further comments on a
particular Registration Statement, as the case may be, and (ii) the approval of
Legal Counsel pursuant to Section 3(c) (which approval is immediately
sought and shall not be unreasonably withheld or delayed), a request for
acceleration of effectiveness of such Registration Statement to a time and date
not later than 48 hours after the submission of such request.


4






                       b.          The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the
prospectus used in connection with such Registration Statement, which
prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act,
as may be necessary to keep such Registration Statement effective at all times
during the Registration Period, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement until such time
as all of such Registrable Securities shall have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof as
set forth in such Registration Statement. In the case of amendments and
supplements to a Registration Statement which are required to be filed pursuant
to this Agreement (including pursuant to this Section 3(b)) by reason of the
Company filing a report on Form 10-Q, Form 10-K, Form 8-K, or any amendment on
any of the foregoing, or any analogous report under the Securities Exchange Act
of 1934, as amended (the “1934 Act”), the Company shall have
incorporated such report by reference into such Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC within
one (1) Business Day after the day on which the 1934 Act report is filed which
created the requirement for the Company to amend or supplement such
Registration Statement.


                       c.          The
Company shall (A) permit Legal Counsel to review and comment upon (i) a
Registration Statement at least five (5) Business Days prior to its filing with
the SEC and (ii) all amendments and supplements to all Registration Statements
(except for Annual Reports on Form 10-K or Form 10-KSB, Quarterly Reports on Form
10-Q or Form 10-QSB, Current Reports on Form 8-K, and any similar or successor
reports) within a reasonable number of days prior to their filing with the SEC,
and (B) not file any Registration Statement or amendment or supplement thereto
in a form to which Legal Counsel reasonably objects. The Company shall not
submit a request for acceleration of the effectiveness of a Registration
Statement or any amendment or supplement thereto without the prior approval of
Legal Counsel, which consent shall not be unreasonably withheld or delayed. The
Company shall furnish to Legal Counsel, without charge, (i) copies of any
correspondence from the SEC or the staff of the SEC to the Company or its
representatives relating to any Registration Statement, (ii) promptly after the
same is prepared and filed with the SEC, one copy of any Registration Statement
and any amendment(s) thereto, including financial statements and schedules, all
documents incorporated therein by reference, if requested by an Investor, and
all exhibits and (iii) upon the effectiveness of any Registration Statement,
one copy of the prospectus included in such Registration Statement and all
amendments and supplements thereto. The Company shall reasonably cooperate with
Legal Counsel in performing the Company’s obligations pursuant to this Section
3.


5






                       d.          The
Company shall furnish, without charge, to each Investor selling Registrable
Securities, such number of copies of such Registration Statement, each
amendment and supplement thereto (in each case including all exhibits), the
prospectus included in such Registration Statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the 1933 Act, each free writing prospectus utilized in
connection therewith, in each case, in conformity with the requirements of the
1933 Act, and other documents, as such Investor may reasonably request in order
to facilitate the public sale or other disposition of the Registrable Securities
owned by such Investor;


                       e.          The
Company shall use commercially reasonable 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 post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications
in effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not
be required in connection therewith or as a condition thereto to (x) qualify to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(e), (y) subject itself to general
taxation in any such jurisdiction, or (z) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify Legal
Counsel and each Investor who holds Registrable Securities of the receipt by
the Company of any notification with respect to the suspension 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 such purpose.


                       f.          The
Company shall notify Legal Counsel 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, includes an untrue statement of a material fact
or omission to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (provided that in no event shall such notice
contain any material, nonpublic information), and, subject to Section 3(r),
promptly prepare a supplement or amendment to such Registration Statement to
correct such untrue statement or omission, and deliver ten (10) copies of such
supplement or amendment to Legal Counsel and each Investor (or such other
number of copies as Legal Counsel or such Investor may reasonably request). The
Company shall also promptly notify Legal Counsel and each Investor in writing
(i) when a prospectus or any prospectus supplement or post-effective amendment
has been filed, and when a Registration Statement or any post-effective
amendment has become effective (notification of such effectiveness shall be
delivered to Legal Counsel and each Investor by facsimile or e-mail on the same
day of such effectiveness and by overnight mail), (ii) of any request by the
SEC for amendments or supplements to a Registration Statement or related
prospectus or related information, and (iii) of the Company’s reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.


6






                       g.          The
Company shall use commercially reasonable efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration
Statement, or the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at the earliest
possible moment and to notify Legal Counsel and each Investor who holds
Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.


                       h.          If
any Investor is deemed to be, alleged to be or reasonably believes it may be
deemed or alleged to be, an underwriter or is required under applicable
securities laws to be described in the Registration Statement as an
underwriter, the Company agrees that the Investors shall be entitled to conduct
the due diligence which they would normally conduct in connection with an
offering of securities and the Company shall furnish to such Investor, on the
date of the effectiveness of the Registration Statement and thereafter from
time to time on such dates as an Investor may reasonably request (i) a “comfort
letter”, dated such date, from the Company’s independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, addressed to the Investors, 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.          Upon
the written request of any Investor in connection with such Investor’s due
diligence requirements, if any, the Company shall make available for inspection
by (i) any Investor, (ii) Legal Counsel and (iii) one firm of accountants or
other agents retained by the Investors (collectively, the “Inspectors”),
all pertinent financial and other records, and pertinent corporate documents
and properties of the Company (collectively, the “Records”), as shall be
reasonably deemed necessary by each Inspector, and cause the Company’s
officers, directors and employees, counsel and the Company’s independent
certified public accountants to supply all information which may be necessary
and any Inspector may reasonably request; provided, however, that each
Inspector shall agree to hold in strict confidence and shall not make any
disclosure (except to an Investor) or use of any Record or other information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, unless (a) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in any
Registration Statement or is otherwise required under the 1933 Act, (b) the
release of such Records is ordered pursuant to a final, non-appealable subpoena
or order from a court or government body of competent jurisdiction, or (c) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this Agreement. Each Investor agrees
that it shall, upon learning that disclosure of such Records is sought in or by
a court or governmental body of competent jurisdiction or through other means,
give prompt notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, the Records deemed confidential. Nothing herein (or in
any other confidentiality agreement between the Company and any Investor) shall
be deemed to limit the Investors’ ability to sell Registrable Securities in a
manner which is otherwise consistent with applicable laws and regulations.


7






                       j.          The
Company shall hold in confidence and not make any disclosure of information
concerning an Investor provided to the Company unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii)
the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. 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 competent jurisdiction or through other means, give prompt
written notice to such Investor and allow such Investor, at the Investor’s expense,
to undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.


                       k.          Promptly
after the filing of a Registration Statement hereunder, the Company shall use
its best efforts to secure the listing of all of the Registrable Securities
covered by such Registration Statement upon each national securities exchange
and automated quotation system, if any, upon which shares of Common Stock shall
be so listed (subject to notice of issuance) and shall maintain, so long as any
other shares of Common Stock shall be so listed, such listing of such
Registrable Securities. The Company shall pay all fees and expenses in
connection with satisfying its obligation under this Section 3(k).


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


                       m.         If
requested by an Investor, the Company shall as soon as practicable but in no
event later than five (5) days after the receipt of notice from such Investor,
(i) incorporate in a prospectus supplement or post-effective amendment such
information as an Investor reasonably requests to be included therein relating
to the sale and distribution of Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other
terms of the offering of the Registrable Securities to be sold in such
offering; (ii) make all required filings of such prospectus supplement or
post-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 if reasonably requested by an
Investor holding any Registrable Securities.


                       n.          The
Company shall use commercially reasonable efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to consummate the disposition of such Registrable Securities.


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


8






                       p.         The
Company shall otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC (including, without limitation, maintaining
disclosure controls and procedures (as defined in the 1934 Act Rule 13a-15(e))
and internal control over financial reporting (as defined in the 1934 Act Rule
13a-15(f)) in accordance with the 1934 Act) in connection with any registration
hereunder.


                       q.         Within
two (2) Business Days after a Registration Statement which covers Registrable
Securities is ordered effective by the SEC, the Company shall deliver, and
shall cause legal counsel for the Company to deliver, to the transfer agent for
such Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) confirmation that such
Registration Statement has been declared effective by the SEC substantially in
the form attached hereto as Exhibit A.


                       r.          Notwithstanding
anything to the contrary herein, at any time, upon written notice to the
participating Holders and for a period not to exceed thirty (30) days
thereafter (the “Suspension Period”), the Company may delay the filing
or effectiveness of any registration statement or suspend the use or
effectiveness of any registration statement (and the Holders hereby agree not
to offer or sell any Registrable Securities pursuant to such registration
statement during the Suspension Period) if the Company reasonably believes that
there is or may be in existence material nonpublic information or events
involving the Company, the failure of which to be disclosed in the prospectus
included in the registration statement could result in a Violation (as defined
below). In the event that the Company shall exercise its right to delay or
suspend the filing or effectiveness of a registration hereunder, the applicable
time period during which the registration statement is to remain effective
shall be extended by a period of time equal to the duration of the Suspension
Period. No more than two (2) such Suspension Periods shall occur in any twelve
(12) month period. If so directed by the Company, all Holders registering
shares under such registration statement shall (i) not offer to sell any
Registrable Securities pursuant to the registration statement during the period
in which the delay or suspension is in effect after receiving notice of such
delay or suspension; and (ii) use their commercially reasonable efforts to
deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies then in such Holders’ possession, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.


                       s.          During
the period that the Company is required to maintain effectiveness of the
Registration Statement pursuant to Section 3(a), the Company shall not
bid for or purchase any Common Stock or any right to purchase Common Stock or
attempt to induce any person to purchase any such security or right if such
bid, purchase or attempt would in any way limit the right of the Investors to
sell Registrable Securities by reason of the limitations set forth in
Regulation M under the 1934 Act.


                       t.          In
the event a Registration Statement covering the Registrable Securities will
terminate by its terms, the Company shall refile (or file and have declared
effective) a new Registration Statement.


9






          4.          Obligations
of the Investors.


                       a.          At
least ten (10) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing of
the information the Company requires from each such Investor if such Investor
elects to have any of such Investor’s Registrable Securities included in such
Registration Statement. It shall be a condition precedent to the obligations of
the Company to complete the registration pursuant to this Agreement with
respect to 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 reasonably required to effect
and maintain the effectiveness of the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request.


                       b.          Each
Investor, by such Investor’s 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 any Registration Statement
hereunder, unless such Investor has notified the Company in writing of such
Investor’s election to exclude all of such Investor’s Registrable Securities
from such Registration Statement.


                       c.          Each
Investor agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g), 3(r)
or the first sentence of 3(f), such Investor will immediately
discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until such Investor’s receipt
of the copies of the supplemented or amended prospectus contemplated by Section
3(g), 3(r) or the first sentence of 3(f) or receipt of notice
that no supplement or amendment is required. Notwithstanding anything to the
contrary, the Company shall cause its transfer agent to deliver unlegended
shares of Common Stock to a transferee of an Investor in accordance with the
terms of the Securities Purchase Agreement in connection with any sale of
Registrable Securities with respect to which an Investor has entered into a
contract for sale prior to the Investor’s receipt of a notice from the Company
of the happening of any event of the kind described in Section 3(g), 3(r)
or the first sentence of 3(f) and for which the Investor has not yet
settled.


                       d.          Each
Investor covenants and agrees that it will comply with the prospectus delivery
requirements of the 1933 Act as applicable to it or an exemption therefrom in
connection with sales of Registrable Securities pursuant to the Registration
Statement.


          5.          Expenses
of Registration.


                       All
reasonable expenses, other than underwriting discounts and commissions,
incurred in connection with registrations, filings or qualifications pursuant
to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees,
and fees and disbursements of counsel for the Company shall be paid by the
Company. The Company shall also reimburse the Investors for the fees and
disbursements of Legal Counsel in connection with registration, filing or
qualification pursuant to Sections 2 and 3 of this Agreement
which amount shall be limited to $20,000.


10






          6.          Indemnification.


                       In
the event any Registrable Securities are included in a Registration Statement
under this Agreement:


                       a.          To
the fullest extent permitted by law, the Company will, and hereby agrees to and
hereby does, indemnify, hold harmless and defend each Investor, the directors,
officers, members, partners, employees, agents, stockholders, managers,
representatives of, and each Person, if any, who controls any Investor within
the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Person”),
against any losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs, reasonable attorneys’ fees, amounts paid in settlement or
expenses, joint or several (collectively, “Claims”) incurred in
investigating, preparing or defending 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 party is or may be
a party thereto (“Indemnified Damages”), to which any of them may become
subject insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or in any filing made in
connection with the qualification of the offering under the securities or other
“blue sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”), or the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary, final or summary prospectus or
any amendment or supplement thereto, together with the documents incorporated
by reference therein, or any free writing prospectus utilized in connection
therewith, 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,
(iii) any untrue statement or alleged untrue statement of a material fact in
the information conveyed to any purchaser at the time of the sale to such purchaser,
or the omission or alleged omission to state therein a material fact required
to be stated therein, (iv) any violation or alleged violation by the Company of
the 1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities pursuant to a Registration
Statement or (v) any violation of this Agreement by the Company (the matters in
the foregoing clauses (i) through (v) being, collectively, “Violations”).
Subject to Section 6(c), the Company shall reimburse the Indemnified
Persons, promptly as such expenses are incurred and are due and payable, for
any legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. 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 and in conformity
with information furnished in writing to the Company by such Indemnified Person
for such Indemnified Person expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(d) and (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld or delayed. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9.


11






                       b.          In
connection with any Registration Statement in which an Investor is
participating, each 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 the 1933 Act or the 1934
Act (each, an “Indemnified Party”), against any Claim or Indemnified
Damages to which any of them may become subject, under the 1933 Act, the 1934
Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or
are based upon any Violation, in each case to the extent, and only to the
extent, that such Violation occurs in reliance upon and in conformity with
written information furnished to the Company by such Investor expressly for use
in connection with such Registration Statement; and, subject to Section 6(c),
such Investor will reimburse any legal or other expenses reasonably incurred by
an Indemnified Party in connection with investigating or defending any such
Claim; provided, however, that the indemnity agreement contained in this Section
6(b) and the agreement with respect to contribution contained in Section
7 shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Investor, which
consent shall not be unreasonably withheld or delayed; provided, further,
however, that the Investor shall be liable under this Section 6(b) for
only that amount of a Claim or Indemnified Damages as does not exceed the net
proceeds to such Investor as a result of the sale of Registrable Securities
pursuant to such Registration Statement. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable Securities
by the Investors pursuant to Section 9.


                       c.          Any
Person entitled to indemnification under this Agreement shall notify promptly
the indemnifying party in writing of the commencement of any action or proceeding
with respect to which a claim for indemnification may be made pursuant to this Section
6, but the failure of any Indemnified Party to provide such notice shall
not relieve the indemnifying party of its obligations under the preceding
paragraphs of this Section 6, except to the extent the indemnifying
party is materially and actually prejudiced thereby and shall not relieve the
indemnifying party from any liability which it may have to any Indemnified
Party otherwise than under this Agreement. In case any action or proceeding is
brought against an Indemnified Party and it shall notify the indemnifying party
of the commencement thereof (as required above), the indemnifying party shall
be entitled to participate therein and, unless in the reasonable opinion of
outside counsel to the Indemnified Party a conflict of interest between such
Indemnified Party and indemnifying party may exist in respect of such claim, to
assume the defense thereof jointly with any other indemnifying party similarly
notified, to the extent that it chooses, with counsel reasonably satisfactory
to such Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party that it so chooses, the indemnifying party shall not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that (i) if the
indemnifying party fails to take reasonable steps necessary to defend
diligently the action or proceeding within twenty (20) days after receiving
notice from such Indemnified Party that the Indemnified Party believes it has
failed to do so; or (ii) if such Indemnified Party who is a defendant in any
action or proceeding which is also brought against the indemnifying party
reasonably shall have concluded that there may be one or more legal or
equitable defenses available to such Indemnified Party which are not available
to the indemnifying party or which may conflict with those available to another
Indemnified Party with respect to such Claim; or (iii) if representation of
both parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the Indemnified
Party shall have the right to assume or continue its own defense as set forth
above (but with no more than one firm of counsel for all Indemnified Parties in
each jurisdiction, except to the extent any Indemnified Party or Parties
reasonably shall have made a conclusion described in clause (ii) or (iii)
above) and the indemnifying party shall be liable for any expenses therefor. No
indemnifying party shall, without the written consent of the Indemnified Party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of the Indemnified Party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified Party.


12






                       d.         The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or 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.


                       f.          To
the extent that any of the Investors is deemed to be an underwriter of
Registrable Securities pursuant to any SEC comments or policies, the Company
agrees that the indemnification and contribution provisions contained herein
shall be applicable to the benefit of the Investors in their role as deemed
underwriter in addition to their capacity as a holder of Registrable
Securities.


          7.          Contribution.


                       If
for any reason the foregoing indemnity in Section 6 is unavailable,
unenforceable or is insufficient to hold harmless an Indemnified Party, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such Indemnified Party as a result of any Claim in such proportion
as is appropriate to reflect the relative fault of the indemnifying party, on
the one hand, and the Indemnified Party, on the other hand, with respect to
such Claim. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or the Indemnified Party and the
Parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount
paid or payable by such Indemnified Party in such proportion as is appropriate
to reflect not only such relative faults but also the relative benefits of the
indemnifying party and the Indemnified Party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just
and equitable if any contribution pursuant to this Section 7 were to be
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
preceding sentences of this Section 7. The amount paid or payable in
respect of any Claim shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such Claim. 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 who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything in this Section 7 to the
contrary, no indemnifying party (other than the Company) shall be required
pursuant to this Section 7 to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the losses, claims, damages or liabilities
of the Indemnified Parties relate, less the amount of any indemnification
payment made by such indemnifying party pursuant to Section 6(b).


13






          8.          Reports
Under the 1934 Act.


                       With
a view to making available to the Investors the benefits of Rule 144 promulgated
under the 1933 Act or any other similar rule or regulation of the SEC that may
at any time permit the Investors to sell securities of the Company to the
public without registration (“Rule 144”), the Company agrees to use
commercially reasonable efforts to:


                       a.          make
and keep public information available, as those terms are understood and
defined in Rule 144;


                       b.          file
with 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 as the Company remains
subject to such requirements (it being understood that nothing herein shall
limit the Company’s obligations under Section 4(c) of the Securities Purchase
Agreement) and the filing of such reports and other documents is required for
the applicable provisions of Rule 144; and


                       c.          furnish
to 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 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 by the Company, and (iii) such
other information as may be reasonably requested to permit the Investors to
sell such securities pursuant to Rule 144 without registration.


          9.          Assignment
of Registration Rights.


                       The
rights under this Agreement shall be automatically assignable by the Investors
to any transferee of all or any portion of such Investor’s Registrable
Securities if: (i) the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment; (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished with
written notice of (a) the name and address of such transferee or assignee, and
(b) the securities with respect to which such registration rights are being
transferred or assigned; (iii) immediately following such transfer or
assignment the further disposition of such securities by the transferee or
assignee is restricted under the 1933 Act or applicable state securities laws;
(iv) at or before the time the Company receives the written notice contemplated
by clause (ii) of this sentence the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained herein; and (v)
such transfer shall have been made in accordance with the applicable
requirements of the Securities Purchase Agreement.


14






          10.         Amendment
of Registration Rights.


                       Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Required
Holders. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon each Investor and the Company. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the
Registrable Securities. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of this
Agreement unless the same consideration also is offered to all of the parties
to this Agreement.


          11.         Miscellaneous.


                       a.          A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns or is deemed to own of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more Persons
with respect to the same Registrable Securities, the Company shall act upon the
basis of instructions, notice or election received from the such record owner
of such Registrable Securities.


                       b.          Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed
to have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party); or (iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:


	
  

 	
  

 	
  

 
	
  

 	
 If to the
 Company:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 ‘mktg, inc.’

 
	
  

 	
  

 	
 75 Ninth
 Avenue

 
	
  

 	
  

 	
 New York,
 New York 10011

 
	
  

 	
  

 	
 Telephone:
 (212) 660-3800

 
	
  

 	
  

 	
 Facsimile:
 (212) [_________]

 
	
  

 	
  

 	
 Attention:
 [____________________]

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 With a copy
 to:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Cooley
 Godward Kronish LLP

 
	
  

 	
  

 	
 The Grace
 Building

 
	
  

 	
  

 	
 1114 Avenue
 of the Americas

 
	
  

 	
  

 	
 New York,
 New York 10036-7798

 
	
  

 	
  

 	
 Telephone:
 (212) 479-6113

 
	
  

 	
  

 	
 Facsimile:
 (212) 479-6275

 
	
  

 	
  

 	
 Attention:
 Zev Bomrind, Esq.

 


15









	
  

 	
  

 	
  

 
	
  

 	
 If to Legal
 Counsel:

 
	
  

 	
  

 	
  

 
	
  

 	
  

 	
 Finn Dixon
 & Herling LLP

 
	
  

 	
  

 	
 177 Broad
 Street

 
	
  

 	
  

 	
 Stamford,
 Connecticut 06901

 
	
  

 	
  

 	
 Telephone:
 (203) 325-5000

 
	
  

 	
  

 	
 Facsimile:
 (203) 325-5001

 
	
  

 	
  

 	
 Attention:
 Charles J. Downey III, Esq.

 



If to a Buyer,
to its address and facsimile number set forth on the Schedule of Buyers
attached hereto, with copies to such Buyer’s representatives as set forth on
the Schedule of Buyers, or to such other address and/or facsimile number and/or
to the attention of such other Person as the recipient party has specified by
written notice given to each other party pursuant to this Section. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided by a
courier or overnight courier service shall be rebuttable evidence of personal
service, receipt by facsimile or receipt from a nationally recognized overnight
delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.


                       c.          Failure
of 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.


                       d.          Without
the prior written consent of the holders of a majority of the Registrable
Securities hereunder, the Company may not grant to any Person or Persons the
right to request the Company to register any equity securities of the Company,
or any securities convertible or exchangeable into or exercisable for such
securities that have parity or priority over the registration rights of the
Registrable Securities hereunder in any respect.


16






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


                       f.          This
Agreement, the other Transaction Documents (as defined in the Securities
Purchase Agreement) and the instruments referenced herein and therein
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. 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 and the
instruments referenced herein and therein supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof.


                       g.         Subject
to the requirements of Section 9, this Agreement shall inure to the benefit of
and be binding upon the permitted successors and assigns of each of the parties
hereto.


                       h.         The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


                       i.          This
Agreement may be executed in identical counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
agreement. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.


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


                       k.         All
consents and other determinations required to be made by the Investors pursuant
to this Agreement shall be made, unless otherwise specified in this Agreement,
by the Required Holders.


17






                       l.          The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction will
be applied against any party.


                       m.         This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person.


                       n.          The
Company and the Buyers acknowledge and agree that irreparable damage to the
other party would occur in the event 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 shall be entitled
to an injunction, injunctions or other equitable relief, without the necessity
of posting a bond, to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which the parties may be entitled by
law or equity.


                       o.          The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor, and no provision of this Agreement is
intended to confer any obligations on any Investor vis-à-vis any other Investor.
Nothing contained herein, and no action taken by any Investor pursuant hereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated herein.


                       p.          The
Company acknowledges that any failure by the Company to perform its obligations
under this Agreement, including, without limitation, the Company’s obligations
under Sections 2 and 3, or any delay in such performance could
result in damages to the Investors and the Company agrees that, in addition to
any other liability the Company may have by reason of any such failure or
delay, the Company shall be liable for all damages caused by any such failure
or delay (including, without limitation, diminution in value and/or lost
profits attributable to the failure or delay, whether due to a decline in stock
price, inability to sell shares at a profit or otherwise).


*
* * * * *


18






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


	
  

 	
  

 	
  

 
	
  

 	
 COMPANY:

 
	
  

 	
  

 	
  

 
	
  

 	
  ‘mktg, inc.’

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
 Title:

 
	
  

 	
  

 	
  

 
	
  

 	
 BUYERS:

 
	
  

 	
  

 	
  

 
	
  

 	
 UCC - mktg Investment, LLC

 
	
  

 	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
  

 	
 Name: 

 
	
  

 	
  

 	
 Title:

 










SCHEDULE OF BUYERS


	
  

 	
  

 	
  

 
	
 Buyer

 	
  

 	
 Buyer
 Address

 and Facsimile Number

 
	 

 	
  

 	 

 
	
 UCC - mktg Investment, LLC

 	
  

 	
 c/o Union
 Capital Corporation

 
	
  

 	
  

 	
 445 Park
 Avenue

 
	
  

 	
  

 	
 14th
 Floor

 
	
  

 	
  

 	
 New York, NY
 10022

 
	
  

 	
  

 	
 Attention:          Gregory
 J. Garville

 
	
  

 	
  

 	
 Telephone:        212-832-1141

 
	
  

 	
  

 	
 Telecopy:          212-832-0554

 


1






EXHIBIT A


FORM OF NOTICE OF EFFECTIVENESS

OF REGISTRATION STATEMENT


[Transfer
Agent]

[Address]

Attention:


          Re:          ‘mktg,
inc.’


Ladies and
Gentlemen:


                         [We
are][I am] counsel to ‘mktg, inc.’, a Delaware corporation (the “Company”),
and have represented the Company in connection with that certain Securities
Purchase Agreement (the “Securities Purchase Agreement”) entered into by
and among the Company and the buyers named therein (collectively, the “Holders”)
pursuant to which the Company issued to the Holders preferred shares (the “Preferred
Shares”) convertible into the Company’s common stock, $0.001 par value (the
“Common Stock”) and warrants exercisable for shares of Common Stock (the
“Warrants”). Pursuant to the Securities Purchase Agreement, the Company
also has entered into a Registration Rights Agreement with the Holders (the “Registration
Rights Agreement”) pursuant to which the Company agreed, among other
things, to register the Registrable Securities (as defined in the Registration
Rights Agreement), including the shares of Common Stock issuable upon
conversion of the Preferred Shares and the shares of Common Stock issuable upon
exercise of the Warrants, under the Securities Act of 1933, as amended (the “1933
Act”). In connection with the Company’s obligations under the Registration
Rights Agreement, on____________, 200_____, the Company filed a Registration
Statement on [Form S-1] (File No. 333-__________) (the “Registration
Statement”) with the Securities and Exchange Commission (the “SEC”)
relating to the Registrable Securities which names each of the Holders as a
selling stockholder thereunder.


                         In
connection with the foregoing, [we][I] advise you that a member of the SEC’s
staff has advised [us][me] by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ ENTER
TIME OF EFFECTIVENESS ] on [ ENTER DATE OF EFFECTIVENESS ] and [we][I] have no
knowledge, after telephonic inquiry of a member of the SEC’s staff, that any
stop order suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or threatened by, the SEC and the
Registrable Securities are available for resale under the 1933 Act pursuant to
the Registration Statement.


                         Subject
to the specific prohibitions contained in the Registration Rights Agreement
regarding the inability to use the Registration Statement under specific
circumstances (the “Registration Statement Limitations”), this letter shall
serve as our standing instruction to you that the shares of Common Stock are
freely transferable by the Holders pursuant to the Registration Statement
provided the prospectus delivery requirements, if any, are complied with.


                         Subject
to the Registration Statement Limitations, you need not require further letters
from us to effect any future legend-free issuance or reissuance of shares of
Common Stock to the Holders as contemplated by the Company’s Irrevocable
Transfer Agent Instructions dated __________________, 2009. This letter shall
serve as our standing opinion with regard to this matter.


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 Very truly
 yours,

 
	
  

 	
  

 
	
  

 	
 [ISSUER’S COUNSEL]

 
	
  

 	
  

 
	
  

 	
 By:

 	
  

 
	
  

 	
  

 	 

 
	
  

 	
  

 
	
 CC:       [LIST
 NAMES OF HOLDERS]

 	
  

 


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EXHIBIT B


SELLING STOCKHOLDERS


                    The
shares of Common Stock being offered by the Selling Stockholders are those
issuable to the Selling Stockholders upon conversion of the convertible
preferred shares, and upon exercise of the warrants. For additional information
regarding the issuance of those convertible preferred shares and warrants, see
“Private Placement of Convertible Preferred Shares and Warrants” above. We are
registering the shares of Common Stock in order to permit the selling
stockholders to offer the shares for resale from time to time. Except for [_______][Discuss
any material relationships] and the ownership of the convertible preferred
shares and warrants issued pursuant to the Securities Purchase Agreement, the
selling stockholders have not had any material relationship with us within the
past three years.


                    The
table below lists the Selling Stockholders and other information regarding the
beneficial ownership of the shares of Common Stock by each of the Selling
Stockholders. The second column lists the number of shares of Common Stock
beneficially owned by each Selling Stockholder, based on its ownership of the
shares of common stock and the convertible preferred shares, as of __________,
200___, assuming conversion of all convertible preferred shares and
exercise of the warrants held by the selling stockholders on that date without
regard to any limitations on conversions or exercise.


                    The
third column lists the shares of Common Stock being offered by this prospectus by
the Selling Stockholders.


                    In
accordance with the terms of a registration rights agreement with the selling
stockholders, this prospectus generally covers the resale of Common Stock
issuable upon conversion of the convertible preferred shares and Common Stock
issuable upon exercise of the warrants up to no more than twenty-five percent
(25%) of the total amount of the Company’s shares available for trading.
Because the conversion price of the convertible preferred shares and the exercise
price of the warrants may be adjusted, the number of shares that will actually
be issued may be more or less than the number of shares being offered by this
prospectus. The fourth column assumes the sale of all of the shares offered by
the Selling Stockholders pursuant to this prospectus.


                    The
Selling Stockholders may sell all, some or none of their shares in this
offering. See “Plan of Distribution.”


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EXHIBIT B


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Name of Selling Stockholder

 	
  

 	
 Number of Ordinary Shares
Owned Prior to
 Offering

 	
  

 	
 Maximum Number of Ordinary Shares to
 be Sold Pursuant to this
 Prospectus

 	
  

 	
 Number of Ordinary Shares Owned After Offering

 	
  

 
	 

 	
  

 	 

 	
  

 	 

 	
  

 	 

 	 

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 [Buyer] (1)

 	
  

 	
  

 	
  

 	
  

 	
  


 	
  

 	
  

 	
 0

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 [Other
 Buyers]

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 
	
           (1)

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 1

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 	 

 


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EXHIBIT B


PLAN OF DISTRIBUTION


                    We
are registering the shares of Common Stock previously issued and the shares of
Common Stock issuable upon conversion of the preferred shares and upon exercise
of the warrants to permit the resale of these shares of Common Stock by the
holders of the common stock, preferred shares and warrants from time to time
after the date of this prospectus. We will not receive any of the proceeds from
the sale by the selling stockholders of the shares of Common Stock. We will
bear all fees and expenses incident to our obligation to register the shares of
Common Stock.


                    The
selling stockholders may sell all or a portion of the shares of Common Stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents. If the shares of
Common Stock are sold through underwriters or broker-dealers, the selling
stockholders will be responsible for underwriting discounts or commissions or
agent’s commissions. The shares of Common Stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may involve crosses
or block transactions,


	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 on any
 national securities exchange or quotation service on which the securities may
 be listed or quoted at the time of sale;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 in the
 over-the-counter market;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 in
 transactions otherwise than on these exchanges or systems or in the
 over-the-counter market;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 through the
 writing of options, whether such options are listed on an options exchange or
 otherwise;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 ordinary
 brokerage transactions and transactions in which the broker-dealer solicits
 purchasers;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 block trades
 in which the broker-dealer will attempt to sell the shares as agent but may
 position and resell a portion of the block as principal to facilitate the
 transaction;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 purchases by
 a broker-dealer as principal and resale by the broker-dealer for its account;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 an exchange
 distribution in accordance with the rules of the applicable exchange;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 privately
 negotiated transactions;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 short sales;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 sales
 pursuant to Rule 144;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 broker-dealers
 may agree with the selling stockholders to sell a specified number of such
 shares at a stipulated price per share;

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 a
 combination of any such methods of sale; and

 
	
  

 	
  

 	
  

 
	
  

 	
 ·

 	
 any other
 method permitted pursuant to applicable law.

 


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                    If
the selling stockholders effect such transactions by selling shares of Common
Stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholders or commissions from
purchasers of the shares of Common Stock for whom they may act as agent or to
whom they may sell as principal (which discounts, concessions or commissions as
to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with sales of
the shares of Common Stock or otherwise, the selling stockholders may enter
into hedging transactions with broker-dealers, which may in turn engage in
short sales of the shares of Common Stock in the course of hedging in positions
they assume. The selling stockholders may also sell shares of Common Stock
short and deliver shares of Common Stock covered by this prospectus to close
out short positions and to return borrowed shares in connection with such short
sales. The selling stockholders may also loan or pledge shares of Common Stock
to broker-dealers that in turn may sell such shares.


                    The
selling stockholders may pledge or grant a security interest in some or all of
the preferred shares, warrants or shares of Common Stock owned by them and, if
they default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares of Common Stock from time to time
pursuant to this prospectus or any amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933, as
amended, amending, if necessary, the list of selling stockholders to include,
pursuant to prospectus amendment or prospectus supplement, the pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus. The selling stockholders also may transfer and donate the shares of
Common Stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of this prospectus.


                    The
selling stockholders and any broker-dealer participating in the distribution of
the shares of Common Stock may be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions
or discounts under the Securities Act. At the time a particular offering of the
shares of Common Stock is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares of Common Stock
being offered and the terms of the offering, including the name or names of any
broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers.


                    Under
the securities laws of some states, the shares of Common Stock may be sold in
such states only through registered or licensed brokers or dealers. In
addition, in some states the shares of Common Stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.


                    There
can be no assurance that any selling stockholder will sell any or all of the
shares of Common Stock registered pursuant to the registration statement, of
which this prospectus forms a part.


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                    The
selling stockholders and any other person participating in such distribution
will be subject to applicable provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of Common Stock by the selling
stockholders and any other participating person. Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of Common
Stock to engage in market-making activities with respect to the shares of
Common Stock. All of the foregoing may affect the marketability of the shares
of Common Stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of Common Stock.


                    We
will pay all expenses of the registration of the shares of Common Stock
pursuant to the registration rights agreement, estimated to be $[______] in
total, including, without limitation, Securities and Exchange Commission filing
fees and expenses of compliance with state securities or “blue sky” laws;
provided, however, that a selling stockholder will pay all underwriting
discounts and selling commissions, if any. We will indemnify the selling
stockholders against liabilities, including some liabilities under the
Securities Act, in accordance with the registration rights agreements, or the
selling stockholders will be entitled to contribution. We may be indemnified by
the selling stockholders against civil liabilities, including liabilities under
the Securities Act, that may arise from any written information furnished to us
by the selling stockholder specifically for use in this prospectus, in
accordance with the related registration rights agreement, or we may be
entitled to contribution.


                    Once
sold under the registration statement, of which this prospectus forms a part,
the shares of Common Stock will be freely tradable in the hands of persons
other than our affiliates.


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