Form of Registration Rights Agreement between the Company and each of the investors in the Company’s December 2008 offering
Form of
Registration Rights Agreement between the Company and each of the investors in
the Company’s December 2008 offering
1
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is made as of _____________, 200__, by and among Anpath Group, Inc., a Delaware
corporation (the “Company”)
and each purchaser of securities of the Company pursuant to a Subscription
Agreement (as defined below) (each an “Investor”
and, collectively, the “Investors”).
WHEREAS, the Company has
agreed to issue and sell to the Investors (the “Offering”),
and the Investors have agreed to purchase from the Company, an aggregate of up
to five hundred (500) units (each a “Unit”
and, collectively, the “Units”)
for an aggregate purchase price of $5,000,000 (the “Offering
Amount”), priced at $10,000 per Unit, with each Unit consisting of (i) a
$10,000 aggregate principal amount eight (8%) percent convertible promissory
note (each a “Note,”
and, collectively, the “Notes”)
of the Company, convertible into shares (the “Conversion
Shares”) of the Company’s common stock, $0.0001 par value per share (the
“Common
Stock”) and (ii) a warrant (each a “Warrant”
and, collectively, the “Warrants”),
to purchase shares (the “Warrant
Shares”) of Common Stock as provided in Subscription Agreements between
the Company and each of the Investors (the “Subscription
Agreement”); and
WHEREAS, the Company has
agreed to provide certain registration rights with respect to the resale of (i)
the Conversion Shares and (ii) the Warrant Shares, all on the terms and
conditions provided herein; and
WHEREAS, the terms of the
Subscription Agreement provide that it shall be a condition precedent to the
closing of the transactions thereunder, for the Company and the Investors to
execute and deliver this Agreement.
NOW, THEREFORE, in
consideration of the promises and mutual covenants contained herein, the parties
hereto hereby agree as follows:
DEFINITIONS. The
following terms shall have the meanings provided therefor below or elsewhere in
this Agreement as described below:
.164 “Business Day” means any day that is not a
Saturday or Sunday, or a day on which banks are required or permitted to be
closed in the State of North Carolina.
.165 “Closing” shall have the meaning ascribed to
such term in the Subscription Agreement.
.166 “Conversion
Shares” as defined in
the preamble.
.167 “Effectiveness
Date” means, with
respect to the Initial Registration Statement, the earlier of: (i) (a) in the
event that the Registration Statement is not subject to review by the SEC, the
one hundred twentieth (120th) calendar day after the Final
Closing Date and (b) in the event that the Registration Statement is subject to
review by the SEC, the one hundred sixtieth (160th) calendar day after the Final
Closing Dateand (ii) the fifth Trading Day following the date on which the
Company is notified by the SEC that the effectiveness of the Registration
Statement may be accelerated and, with respect to any additional Registration
Statements which may be required to be filed hereunder pursuant to Section 3(d)
or otherwise, the earlier of: (i) (a) in the event that the Registration
Statement is not subject to review by the SEC, the one hundred twentieth
(120th) calendar day after the date on
which the Registration Statement is required to be filed hereunder and (b) in
the event that the Registration Statement is subject to review by the SEC, the
one hundred sixtieth (160th) calendar day after the date such
additional Registration Statement is required to be filed hereunder and (ii) the
seventh Trading Day following the date on which the Company is notified by the
SEC that the effectiveness of such additional Registration Statement may be
accelerated; provided, however, that if the Effectiveness Date falls on a
Saturday, Sunday or other day, that the SEC is closed for business the
Effectiveness Date shall be extended to the next Business
Day.
.168 “Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended, and all of the rules and regulations promulgated
thereunder.
.169 “Filing Date” shall mean, with respect to the
Initial Registration Statement, the date that is forty-five (45) calendar days
after the date of the Final Closing Date, provided, however, that if the Filing Date falls on a
Saturday, Sunday or other day that the SEC is closed for business, the Filing
Date shall be extended to the next Business Day.
.171 “Initial Closing” shall have the meaning ascribed to
such term in the Subscription Agreement.
.172 “Holder” or “Holders” shall mean the holder or holders,
as the case may be, from time to time of Registrable
Securities.
.173 “Initial Registration
Statement” shall mean
the initial Registration Statement filed pursuant to this
Agreement.
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.174 “Investors” as defined in the preamble;
provided, however, that the term “Investors” shall not
include any Investors that do not own or hold any Registrable
Securities.
.175 “Person” means an individual or corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or agency or
subdivision thereof) or other entity of any kind.
.176 “Registrable
Securities” shall mean
the Conversion Shares and the Warrant Shares.
.177 “Registration
Statement” means any one
or more registration statements required to be filed pursuant hereto with the
SEC by the Company on Form S-3, or in the event the Company is not eligible to
use Form S-3, on Form S-1, for the purpose of registering the Registrable
Securities, including (in each case) the prospectus, amendments and supplements
to such registration statement or prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
.178 “Rule 144” shall mean Rule 144 promulgated by
the SEC pursuant to the Securities Act and any successor or substitute rule, law
or provision.
.179 “Rule 172” means Rule 172 promulgated by
the SEC pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC having
substantially the same purpose and effect as such Rule.
.180 “Rule 424” means Rule 424 promulgated by
the SEC pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC having
substantially the same purpose and effect as such Rule.
.181 “SEC” shall mean the United States
Securities and Exchange Commission.
.182 “SEC Guidance” means (i) any
publicly-available written guidance, or rule of general applicability of the SEC
staff, or (ii) oral or written comments, requirements or requests of the SEC
staff to the Company in connection with the review of a Registration
Statement.
.183 “Securities” shall mean the Units, the Notes,
the Conversion Shares, the Warrants, and the Warrant Shares.
.184 “Securities Act” shall mean the Securities Act of
1933, as amended, and all of the rules and regulations promulgated
thereunder.
.185 “Trading Day” means (a) if the Common Stock is
listed or quoted on the NASDAQ Market or NYSE Alternext (formerly known as the
American Stock Exchange), then any day during which securities are generally
eligible for trading on the NASDAQ Market or NYSE Alternext, or (b) if the
Common Stock is not then listed or quoted and traded on the NASDAQ Market or
NYSE Alternext, then any Business Day.
.186 “Warrant Shares” as defined in the
preamble.
3
EFFECTIVENESS. This
Agreement shall become effective and legally binding only if the First Closing
occurs.
MANDATORY
REGISTRATION.
.187 The Company shall be required to file
an Initial Registration Statement on or prior to the Filing Date registering the
Registrable Securities for resale by the Holders as selling stockholders
thereunder. On or prior to the Filing Date, the Company shall prepare
and file with the SEC an Initial Registration Statement for the purpose of
registering under the Securities Act the resale of all, or such portion as
permitted by SEC Guidance of the Registrable Securities by, and for the account
of, the Holders as selling stockholders thereunder, that are not then registered
on an effective Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415. No other securities shall
be included in the Initial Registration Statement that is filed except for the
Registrable Securities. Each Registration Statement (including the Initial
Registration Statement) shall contain the “Plan of Distribution” in
substantially the form of attached to the Selling Stockholder Questionnaire
attached hereto as Exhibit A (except if otherwise required
pursuant to SEC Guidance). The Company shall cause a Registration Statement to
be declared effective by the SEC under the Securities Act as promptly as
practicable after the filing thereof, but in any event on or prior to the
applicable Effectiveness Date.
.188 The Company shall be required to keep
a Registration Statement effective until such date that is the earlier of (i)
the date that is twelve (12) months after the effective date of the Registration
Statement or (ii) the date when all of the Registrable Securities registered
thereunder shall have been sold (the “Effectiveness
Period”). Thereafter,
the Company shall be entitled to withdraw such Registration Statement and the
Holders shall have no further right to offer or sell any of the Registrable
Securities registered for resale thereon pursuant to the respective Registration
Statement (or any prospectus relating thereto).
.189 Notwithstanding
any other provision of this Agreement, if any SEC Guidance sets forth a
limitation on the number of Registrable Securities to be registered in the
Initial Registration Statement, the number of Registrable Securities to be
registered for each Holder on such Registration Statement will be reduced on a
pro-rata basis. The Company shall file a new Registration Statement
as soon as reasonably practicable covering the resale by the Holders of not less
than the number of such Registrable Securities that are not registered in the
Initial Registration Statement. The Company shall not be liable for
liquidated damages under Section 5(a) as to
any Registrable Securities which are not permitted by the SEC to be included in
a Registration Statement due to SEC Guidance. In such case, any
liquidated damages payable under Section 5(a) shall be
calculated to apply only the percentage of Registrable Securities which are
permitted in accordance with SEC Guidance to be included in such Registration
Statement.
.190 If
during the Effectiveness Period, subject to Section 3(a) and
Section 3(c),
the Company becomes aware that the number of Registrable Securities at any time
exceeds the number of Registrable Securities then registered for resale in a
Registration Statement, then the Company shall file as soon as reasonably
practicable an additional Registration Statement covering the resale by the
Holders of not less than the number of such Registrable Securities that are not
then registered.
.191 Notwithstanding any other provision
of this Agreement, if during the Effectiveness Period any of the Registrable
Securities become eligible for resale without restriction pursuant to Rule 144
(the “Rule 144
Eligible Securities”)
then the number of Registrable Securities outstanding at any one time shall be
reduced by the number of Rule 144 Eligible Securities and the Company may at its
option file an amendment to any Registration Statement to reduce the number of
Registrable Securities accordingly. The Company acknowledges that the
Company’s obligation to file its periodic disclosure documents for the twelve
(12) month period preceding the date of sale is a “restriction” as that term is
used in the first sentence of this Section
3(e).
PIGGYBACK
REGISTRATION.
.192 If, at any time, commencing on the
date of the Final Closing Date, the Company proposes to prepare and file with
the SEC a registration statement under the Securities Act, the Company will give
written notice to each Holder of its intention to do so pursuant to Section
15(c) and shall include
all of the Registrable Securities in such registration statement; provided, however, that in connection with any
offering involving an underwriting of shares of Common Stock, the Company shall
not be required to include the Registrable Securities of any Holder in such
registration statement unless such Holder accepts the terms of the underwriting
as agreed upon between the Company and its underwriters, and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. In the event
that the underwriters determine that less than all of the Registrable Securities
required to be registered can be included in such offering, then the Registrable
Securities that are included shall be apportioned to the Holders on a pro-rata
basis. The Company shall use its best efforts to effect the
registration under the Securities Act of the Registrable Securities at the
Company’s sole cost and expense (other than any commission, discounts or counsel
fees payable by the Holders, as further provided in Section
7
hereof).
.193 Notwithstanding
the preceding provision of this Section 4, the
Company shall have the right any time after it shall have given written notice
pursuant to this Section 4
(irrespective of whether any written request for inclusion of such securities
shall have already been made) to elect not to file any proposed registration
statement, or to withdraw the same after the filing but prior to the effective
date thereof.
.194 The
Company shall use its commercially reasonable efforts to cause the registration
statement filed pursuant to this Section 4 to become
effective as promptly as possible under the circumstances at the time prevailing
and, if any stop order shall be issued by the SEC in connection therewith, to
use its reasonable efforts to obtain the removal of such order.
.195 To
the extent any Registrable Securities of the Holders are included in such
registration statement, the Company shall notify each Holder by facsimile or
e-mail as promptly as practicable, and in any event, within two (2) Trading
Days, after such registration statement is declared effective and shall
simultaneously provide the Holders with a copy of any related prospectus to be
used in connection with the sale or other disposition of the Registrable
Securities covered thereby.
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PENALTIES/SUSPENSION OF A
REGISTRATION STATEMENT.
.196 If: (i) the Initial Registration
Statement or any other Registration Statement is not filed on or prior to the
Filing Date or, (ii) the Initial Registration Statement or any other
Registration Statement is not declared effective (or otherwise does not become
effective) on or prior to the Effectiveness Date (any such failure being
referred to as an “Event,” and the date on which such Event
occurs being referred to as “Event Date”), then, in addition to any other
rights the Investors may have hereunder or under applicable law, on each such
Event Date and on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the applicable
Event is cured, the Company shall pay to each Investor on a monthly basis within
five (5) Business Days of the end of the month an amount in cash, as partial
liquidated damages and not as a penalty, equal to one-half of one percent (0.5%)
of the aggregate purchase price paid by such Investor pursuant to the
Subscription Agreement for any Registrable Securities then held by such Investor
that are not then eligible for resale pursuant to the Initial Registration
Statement or other Registration Statement. The parties agree that the maximum
aggregate liquidated damages payable to an Investor under this Agreement shall
be six (6%) percent of the aggregate amount paid by such Investor for its
respective Securities pursuant to the Subscription Agreement. The partial
liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an
Event.
.197 The
Company shall notify each Holder by facsimile or e-mail as promptly as
practicable, and in any event, within two (2) Trading Days, after a Registration
Statement is declared effective and shall simultaneously provide the Holders
with a copy of any related prospectus to be used in connection with the sale or
other disposition of the Registrable Securities covered thereby.
.198 No
Investor shall be entitled to a payment pursuant to this Section 5 if
effectiveness of a Registration Statement has been delayed or a prospectus has
been unavailable as a result of (i) a failure by such Investor to promptly
provide on request by the Company the information required under the
Subscription Agreement or this Agreement or requested by the SEC as a condition
to effectiveness of a Registration Statement; (ii) the provision of inaccurate
or incomplete information by such Investor; or (iii) a statement or
determination of the SEC that any provision of the rights of the Investor under
this Agreement are contrary to the provisions of the Securities
Act.
OBLIGATIONS OF THE
COMPANY. In the event the Company files a Registration Statement with the
SEC in connection with Section 3 or Section 4 hereof that
covers the Registrable Securities and uses its reasonable efforts to cause a
Registration Statement to become effective, the Company shall:
.199 Use
reasonable efforts to prepare and file with the SEC such amendments and
supplements to a Registration Statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by a
Registration Statement;
.200 Furnish
to the selling Holders such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents (including, without limitation, prospectus
amendments and supplements as are prepared by the Company in accordance with
Section 6(a)
above) as the selling Holders may reasonably request in order to facilitate the
disposition of such selling Holders’ Registrable Securities;
.201 Use
reasonable efforts to comply with all applicable rules and regulations of the
SEC under the Securities Act and the Exchange Act, including, without
limitation, Rule 172 under the Securities Act, file any final prospectus,
including any supplement or amendment thereof, with the SEC pursuant to Rule 424
under the Securities Act, promptly inform the Holders in writing if, at any time
during a period of effectiveness, the Company does not satisfy the conditions
specified in Rule 172 and, as a result thereof, the Holders are required to
deliver a prospectus in connection with any disposition of Registrable
Securities; notify the selling Holders of the happening of any event as a result
of which the prospectus included in or relating to a Registration Statement
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading; and, thereafter, subject to Section 12 hereof,
the Company will promptly prepare (and, when completed, give notice and provide
a copy thereof to each selling Holder) a supplement or amendment to such
prospectus so that such prospectus will not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements therein
not misleading; provided, however, that upon
such notification by the Company (which shall be a Suspension pursuant to Section 12), the
selling Holders will not offer or sell Registrable Securities until the Company
has notified the selling Holders that it has prepared a supplement or amendment
to such prospectus and filed it with the SEC or, if the Company does not then
meet the conditions for the use of Rule 172, delivered copies of such supplement
or amendment to the selling Holders (it being understood and agreed by the
Company that the foregoing provision shall in no way diminish or otherwise
impair the Company’s obligation to promptly prepare a prospectus amendment or
supplement as above provided in this Section 6(c) and
deliver copies of same as above provided in Section 6(b) hereof);
and
.202 Use
reasonable efforts to register and qualify the Registrable Securities covered by
a Registration Statement under such other securities or blue sky laws of such
states as shall be reasonably appropriate in the opinion of the Company, provided, however, that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions, and provided further that
(notwithstanding anything in this Agreement to the contrary with respect to the
bearing of expenses) if any jurisdiction in which any of such Registrable
Securities shall be qualified shall require that expenses incurred in connection
with the qualification therein of any such Registrable Securities be borne by
the selling Holders, then the selling Holders shall, to the extent required by
such jurisdiction, pay their pro-rata share of such qualification
expenses.
5
.203 Subject
to the terms and conditions of this Agreement, including Section 3 and Section 4 hereof, the
Company shall use its reasonable efforts to (i) 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 in the United States, and (ii) if such an order or suspension
is issued, obtain the withdrawal of such order or suspension at the earliest
practicable moment and notify each Holder of Registrable Securities of the
issuance of such order and the resolution thereof or its receipt of notice of
the initiation or threat of any proceeding such purpose.
.204 The Company shall comply with
all requirements of the Financial Industry Regulatory Authority, Inc.
(“FINRA”) with regard to the issuance of the
Registrable Securities and the listing thereof on the OTC Bulletin Board and
such other securities exchange or automated quotation system, as
applicable.
OBLIGATIONS OF THE
HOLDERS.
.205 It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that each of the selling Holders shall furnish to the Company a completed
Selling Stockholder Questionnaire in the form attached as Exhibit A hereto (the “Selling Stockholder
Questionnaire”) and such
other information regarding them and the Securities held by them as the Company
shall reasonably request and as shall be required in order to effect any
registration by the Company pursuant to this Agreement. The Company shall not be
required to include the Registrable Securities of any Holder who fails to
furnish to the Company a fully completed Selling Stockholder Questionnaire at
least ten (10) Trading Days prior to the Filing Date. Additionally, each Holder
shall promptly notify the Company of any changes in the information furnished in
the Selling Stockholder Questionnaire or otherwise to the
Company.
.206 Each
Holder agrees to cooperate with the Company as reasonably requested by the
Company in connection with the filing of any Registration Statement hereunder,
unless such Holder has notified the Company in writing that such Holder elects
to exclude all of its Registrable Securities from such Registration
Statement.
.207 Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of any event of the kind described in Section 6(c), each
Holder shall immediately discontinue disposition of Registrable Securities
pursuant to any Registration Statement covering such Registrable Securities
until such Holders receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(c) or
receipt of notice that no supplement or amendment is required.
.208 Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it or an exemption therefrom
in connection with sale of Registrable Securities pursuant to any Registration
Statement.
EXPENSES OF
REGISTRATION.
.209 Except
as set forth in Section 6(d), all
expenses incurred in connection with the registration of the Registrable
Securities pursuant to this Agreement (excluding underwriting, brokerage and
other selling commissions and discounts), including without limitation all
registration and qualification and filing fees, printing, fees and disbursements
of counsel for the Company shall be borne by the Company; provided, however, the Holders
shall be required to pay the expenses of counsel and any other advisors for the
Holders and any brokerage or other selling discounts or commissions and any
other expenses incurred by the Holders for their own account.
.210 Until
such time as all of the Registrable Securities have been sold pursuant to an
effective Registration Statement, the Company shall take such reasonable action
as the Holder may request, all to the extent required from time to time to
enable such Holder to sell the Registrable Securities without registration under
the Securities Act pursuant to the provisions of Rule 144 under the
Securities Act (or any successor provision), provided, however, that it
shall be the Holder’s sole responsibility to obtain any required legal opinions
and pay any and all fees and expenses related to obtaining any legal opinions,
including, but not limited to legal counsel fees.
DELAY OF
REGISTRATION. The Holders shall not take any action to restrain, enjoin
or otherwise delay any registration as the result of any controversy which might
arise with respect to the interpretation or implementation of this
Agreement.
6
INDEMNIFICATION.
.211 To the extent permitted by law,
the Company will indemnify and hold harmless each selling Holder, and each
officer and director of such selling Holder and each person, if any, who
controls such selling Holder, within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue or alleged untrue statement of any material fact
contained in a Registration Statement, in any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to a
Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading; (ii) any blue sky application or other
document executed by the Company specifically for that purpose or based upon
written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Registrable Securities under
the securities laws thereof (any such application, document or information
herein called a “Blue Sky
Application”); (iii) the
omission or alleged omission to state in a Blue Sky Application a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (iv) any violation by the Company or its agents of any rule or
regulation promulgated under the Securities Act applicable to the Company or its
agents and relating to action or inaction required of the Company in connection
with such registration of the Registrable Securities; or (v) any failure to
register or qualify the Registrable Securities included in any such Registration
Statement in any state where the Company or its agents has affirmatively
undertaken or agreed in writing that the Company will undertake such
registration or qualification on a Holder’s behalf; and will reimburse such
selling Holder, or such officer, director or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the indemnity agreement
contained in this Section
10(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, damage, liability or action to the extent that it arises
out of or is based upon (i) an untrue statement or alleged untrue statement or
omission made in connection with a Registration Statement, any preliminary
prospectus or final prospectus relating thereto or any amendments or supplements
to a Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with written information
furnished expressly for use in connection with a Registration Statement or any
such preliminary prospectus or final prospectus by the selling Holders or (ii)
at any time when the Company has advised the Holder in writing that the Company
does not meet the conditions for use of Rule 172 and as a result that the Holder
is required to deliver a current prospectus in connection with any disposition
of Registrable Securities, an untrue statement or alleged untrue statement or
omission in a prospectus that is (whether preliminary or final) corrected in any
subsequent amendment or supplement to such prospectus that was delivered to the
selling Holder before the pertinent sale or sales by the selling
Holder.
.213 Promptly
after receipt by an indemnified party under this Section 10 of notice
of the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section 10, notify
the indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party desires, jointly with any other indemnifying party similarly
noticed, to assume at its expense the defense thereof with counsel satisfactory
to the indemnifying party or indemnifying parties, but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party for contribution or otherwise under the indemnity
agreement contained in this Section 10 (except to
the extent that such omission materially and adversely affects the indemnifying
person’s ability to defend such action). In the event that the indemnifying
party assumes any such defense, the indemnified party may participate in such
defense with its own counsel and at its own expense, provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded,
based on an opinion of counsel reasonably satisfactory to the indemnifying
party, that there may be a conflict of interest between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 10 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless the indemnified party shall have
employed such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel and one local counsel, reasonably satisfactory to
such indemnifying party, representing all of the indemnified parties who are
parties to such action in which case the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying party.
7
.215 If
the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Company on the one hand and the Holders on
the other in connection with the statements or omissions or other matters which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, in the case of an
untrue statement, whether the untrue statement relates to information supplied
by the Company on the one hand or a Holder on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement. The Company and the Holders agree that it would
not be just and equitable if contribution pursuant to this subsection (e) were
determined by pro-rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders’ obligations in this
subsection to contribute are several in proportion to their sales of Registrable
Securities to which such loss relates and not joint. In no event shall the
contribution obligation of a Holder be greater in amount than the dollar amount
of the net proceeds (net of all expenses paid by such Holder in connection with
any claim relating to this Section 10 and the
amount of any damages such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission)
received by it upon the sale of the Registrable Securities giving rise to such
contribution obligation.
REPORTS UNDER THE EXCHANGE
ACT. With a view to making available to the Holders the benefits of Rule
144 and any other rule or regulation of the SEC that may at any time permit the
Holders to sell the Registrable Securities to the public without registration,
during the two (2) year period after the Final Closing Date, the Company agrees
to use reasonable efforts: (i) to make and keep public information available as
those terms are understood in Rule 144, and (ii) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act or the Exchange Act pursuant
to Rule 144, and (iii) undertake any additional actions reasonably necessary to
maintain the availability of the use of Rule 144.
SUSPENSION. Notwithstanding anything in this
Agreement to the contrary, in the event (i) of any non-voluntary demand on the
Company by the SEC or any other federal or state governmental authority during
the period of effectiveness of a Registration Statement for amendments or
supplements to a Registration Statement or related prospectus or for additional
information; (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose; or (iv) of any event or circumstance which requires
to comply with applicable law the making of any changes in a Registration
Statement or related prospectus, or any document incorporated or deemed to be
incorporated therein by reference, so that, in the case of a Registration
Statement, it will not contain any untrue statement of a material fact or any
omission to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
prospectus, it will not contain any untrue statement of a material fact or any
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, then the Company shall furnish to the selling Holders
a certificate signed by the Chief Executive Officer or Chief Financial Officer
of the Company setting forth in detail the facts relating to one or more of the
above described circumstances, and the right of the selling Holders to use a
Registration Statement (and the prospectus relating thereto) shall be suspended
for a period (the “Suspension
Period”) of not more
than ten (10) days after delivery by the Company of the certificate referred to
above in this Section
12. During the
Suspension Period, none of the Holders shall offer or sell any Registrable
Securities pursuant to or in reliance upon a Registration Statement (or the
prospectus relating thereto). The Company shall use its best efforts to
terminate any Suspension Period as promptly as practicable.
8
ENTIRE AGREEMENT.
This Agreement, the Notes, the Warrants, the Subscription Agreement and all
other documents relating to the Offering (and all exhibits and supplements to
such documents) constitute and contain the entire agreement and understanding of
the parties with respect to the subject matter hereof, and supersede any and all
prior negotiations, correspondence, agreements or understandings with respect to
the subject matter hereof.
.217 This
Agreement may not be amended, modified or terminated, and no rights or
provisions may be waived, except with the written consent of the
Company.
.218 This Agreement shall be
governed by and construed exclusively in accordance with the internal laws of
the State of New York without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to or under this Agreement, shall be
brought solely in a federal or state court located in the City, County and State
of New York. By its execution hereof, the parties hereby covenant and
irrevocably submit to the in personam jurisdiction of the federal and
state courts located in the City, County and State of New York and agree that
any process in any such action may be served upon any of them personally, or by
certified mail or registered mail upon them or their agent, return receipt
requested, with the same full force and effect as if personally served upon them
in New York City. The parties hereto waive any claim that any such jurisdiction
is not a convenient forum for any such suit or proceeding and any defense or
lack of in
personam jurisdiction
with respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO
THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO
THIS WAIVER.
.219 Any
notices, reports or other correspondence (hereinafter collectively referred to
as “correspondence”) required or permitted to be given hereunder shall be in
writing and shall be sent by postage prepaid first class mail, courier or
telecopy or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder, and shall be deemed sufficient upon
receipt when delivered personally or by courier, overnight delivery service or
confirmed facsimile, or three (3) business days after being deposited in the
regular mail as certified or registered mail (airmail if sent internationally)
with postage prepaid, if such notice is addressed to the party to be notified at
such party’s address or facsimile number as set forth below:
9
(i) All correspondence to the Company
shall be addressed as follows:
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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||
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Attention:
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J.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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|
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Chief
Executive Officer
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||
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Facsimile:
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(▇▇▇)
▇▇▇-▇▇▇▇
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(ii) All
correspondence to any Investor shall be sent to such Investor at the address set
forth in the Investor Counterpart Signature Page to the Subscription
Agreement.
(iii) Any
entity may change the address to which correspondence to it is to be addressed
by written notification as provided for herein.
.220 The
parties acknowledge and agree that in the event of any breach of this Agreement,
remedies at law may be inadequate, and each of the parties hereto shall be
entitled to seek specific performance of the obligations of the other parties
hereto and such appropriate injunctive relief as may be granted by a court of
competent jurisdiction.
.221 Should
any part or provision of this Agreement be held unenforceable or in conflict
with the applicable laws or regulations of any jurisdiction, the invalid or
unenforceable part or provisions shall be replaced with a provision which
accomplishes, to the extent possible, the original business purpose of such part
or provision in a valid and enforceable manner, and the remainder of this
Agreement shall remain binding upon the parties hereto.
.222 This
Agreement may be executed in a number of counterparts, any of which together
shall for all purposes constitute one Agreement, binding on all the parties
hereto notwithstanding that all such parties have not signed the same
counterpart.
[Signature
Page to Follow]
10
IN WITNESS
WHEREOF, the parties hereto have executed this Registration Rights
Agreement as of the date and year first above written.
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By:
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J.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief
Executive Officer
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THE
INVESTOR’S SIGNATURE TO THE SUBSCRIPTION AGREEMENT SHALL CONSTITUTE THE
INVESTOR’S SIGNATURE TO THIS REGISTRATION RIGHTS AGREEMENT.
Signature
Page to Registration Rights Agreement
11
Exhibit
A
Selling Stockholder
Questionnaire
The
undersigned beneficial owner of certain Notes convertible into shares (the
“Conversion
Shares”) of common stock, $0.0001 par value per share (the “Common
Stock”), of Anpath Group, Inc. (the “Company
”) and Warrants to purchase shares of Common Stock (the “Warrant
Shares” and collectively with the Conversion Shares, the “Registrable
Securities”) understands that the Company intends to file with the
Securities and Exchange Commission (the “Commission”)
a registration statement (the “Registration
Statement”) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities
Act”), of the Registrable Securities, in accordance with the terms of the
Registration Rights Agreement, dated as of ______________, 200__ (the “Registration
Rights Agreement”), among the Company and the Investors named
therein. The purpose of this Questionnaire is to facilitate the
filing of the Registration Statement under the Securities Act that will permit
you to resell the Registrable Securities in the future. The information supplied
by you will be used in preparing the Registration Statement. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling securityholder in the
Registration Statement and the related prospectus. Accordingly, holders and
beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Registration Statement and the related
prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling
Stockholder”) of Registrable Securities hereby elects to include the
Registrable Securities owned by it and listed below in Item 3 (unless otherwise
specified under such Item 3) in the Registration Statement.
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|
QUESTIONNAIRE
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|
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1. Name.
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(a) Full
Legal Name of Selling Stockholder
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(b)
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Full
Legal Name of Registered Holder (if not the same as (a) above) through
which Registrable Securities Listed in Item 3 below are
held:
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|
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(c)
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Full
Legal Name of Natural Control Person (which means a natural person who
directly or indirectly alone or with others has power to vote or dispose
of the securities covered by the
questionnaire):
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A-1
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2.
Address for Notices to Selling
Stockholder:
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| Telephone: | ||||
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Fax:
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||||
| Contact Person: | ||||
| E-mail address of Contact Person: | ||||
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3.
Beneficial Ownership of Registrable
Securities:
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|
(a)
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Type
and Number of Notes and Warrants of the Company beneficially
owned:
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|
Notes:
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Warrants:
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|
|
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4.
Broker-Dealer Status:
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(a) Are
you a broker-dealer?
Yes ¨ No ¨
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(b)
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If
your response to question 4(a) is “yes”, did you receive your Registrable
Securities as compensation for investment banking services to the
Company?
|
Yes ¨ No ¨
Note: If
your response to question 4(a) is “yes” and your response to question 4(b) is
“no,” the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
(c) Are
you an affiliate of a broker-dealer?
Yes ¨ No ¨
A-2
Note: If
yes, provide a narrative explanation below:
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(d)
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If
you are an affiliate of a broker-dealer, do you certify that you bought
the Registrable Securities in the ordinary course of business, and at the
time of the purchase of the Registrable Securities to be resold, you had
no agreements or understandings, directly or indirectly, with any person
to distribute the Registrable
Securities?
|
Yes ¨ No ¨
Note: If
your response to question 4(c) is “yes” and your response to question 4(d) is
“no,” the Commission’s staff has indicated that you should be identified as an
underwriter in the Registration Statement.
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5.
Beneficial Ownership of Other Securities of the Company Owned by the
Selling Stockholder.
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Except
as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the securities
listed above in Item 3.
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(a)
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As
of ___________, 2008, the Selling Stockholder owned outright (including
shares registered in Selling Stockholder's name individually or jointly
with others, shares held in the name of a bank, broker, nominee,
depository or in "street name" for its account), _________ shares of the
Company's capital stock (excluding the Registrable Securities). If "zero,"
please so state.
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(b)
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In
addition to the number of shares Selling Stockholder owned outright as
indicated in Item 5(a) above, as of ________________, 2008, the Selling
Stockholder had or shared voting power or investment power, directly or
indirectly, through a contract, arrangement, understanding, relationship
or otherwise, with respect to ______________ shares of the Company's
capital stock (excluding the Registrable Securities). If "zero," please so
state.
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If
the answer to question 5(b) is not "zero," please complete the following
tables:
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Sole
Voting Power:
|
||||
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Number of Shares
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Nature of Relationship Resulting in Sole
Voting Power
|
|||
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Shared Voting
Power:
|
||||||
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Number of Shares
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With Whom
Shared
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Nature of
Relationship
|
||||
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Sole
Investment Power:
|
|||||
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Number of Shares
|
Nature of Relationship Resulting in Sole
Investment power
|
||||
A-3
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Shared
Investment Power:
|
||||||
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Number of Shares
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With Whom
Shared
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Nature of
Relationship
|
||||
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(b)
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As
of _____________, 2008, the Selling Stockholder had the right to acquire
the following shares of the Company's common stock pursuant to the
exercise of outstanding stock options, warrants or other rights (excluding
the Registrable Securities). Please describe the number, type and terms of
the securities, the method of ownership, and whether the undersigned holds
sole or shared voting and investment power. If “none,” please so
state.
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6.
Relationships with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any
other material relationship with the Company (or its predecessors or affiliates)
during the past three years.
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State
any exceptions below:
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|
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7.
Plan of Distribution:
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The
undersigned has reviewed the form of Plan of Distribution attached hereto as
Annex A and hereby confirms that, except as set forth below, the information
contained therein regarding the undersigned and its plan of distribution is
correct and complete.
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|
State
any exceptions here:
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|
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***********
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The
undersigned agrees to promptly notify the Company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
and prior to the effective date of any applicable Registration Statement filed
pursuant to the Registration Rights Agreement.
A-4
By
signing below, the undersigned consents to the disclosure of the information
contained herein in its answers to Items 1 through 7 and the inclusion of such
information in each Registration Statement filed pursuant to the Registration
Rights Agreement and each related prospectus. The undersigned understands that
such information will be relied upon by the Company in connection with the
preparation or amendment of any such Registration Statement and the related
prospectus.
By
signing below, the undersigned acknowledges that it understands its obligation
to comply, and agrees that it will comply, with the provisions of the Exchange
Act and the rules and regulations thereunder, particularly Regulation M. The
undersigned also acknowledges that it understands that the answers to this
Questionnaire are furnished for use in connection with Registration Statements
filed pursuant to the Registration Rights Agreement and any amendments or
supplements thereto filed with the Commission pursuant to the Securities
Act.
I confirm
that, to the best of my knowledge and belief, the foregoing statements
(including without limitation the answers to this Questionnaire) are
correct.
IN WITNESS WHEREOF the
undersigned, by authority duly given, has caused this Questionnaire to be
executed and delivered either in person or by its duly authorized
agent.
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Dated:
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Beneficial Owner:
|
||||
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By:
|
|||||
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Name:
|
|||||
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Title:
|
|||||
A-5
Annex
A
PLAN
OF DISTRIBUTION
The
selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock on any stock exchange, market or trading facility on which such
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. No short sales of the shares of common stock being offered
for resale under this prospectus are permitted prior to the date that the
registration statement, of which this prospectus forms a part, has been declared
effective by the Securities and Exchange Commission. The selling
stockholders may use any one or more of the following methods when selling
shares:
|
·
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
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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;
|
|
·
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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·
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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|
·
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privately
negotiated transactions;
|
|
·
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settlement
of short sales;
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|
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number of such
shares at a stipulated price per
share;
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|
·
|
a
combination of any such methods of sale;
and
|
|
·
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any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers/dealers to
participate in sales. Broker-dealers may receive commissions from the selling
stockholders (or, if any broker/dealer acts as agent for the purchaser of
shares, from the purchaser) in amounts to be negotiated. The selling
stockholders do not expect these commissions to exceed what is customary in the
types of transactions involved.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the 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 under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3)
or other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus.
The
aggregate proceeds to the selling stockholders from the sale of the common stock
offered by them will be the purchase price of the common stock less discounts or
commissions, if any. Each of the selling stockholders reserves the right to
accept and, together with their agents from time to time, to reject, in whole or
in part, any proposed purchase of common stock to be made directly or through
agents. We will not receive any of the proceeds from this offering. However,
with respect to the warrants upon exercise of such warrants by payment of cash,
we will receive the exercise price of the warrants.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the common stock may be deemed "underwriters" within
the meaning of the Securities Act in connection with such sales. In such event,
any discounts, commissions, concessions or profit they earn on any resale of the
shares may be deemed to be underwriting discounts and commissions under the
Securities Act. Selling stockholders who are deemed underwriters
within the meaning of the Securities Act will be subject to the prospectus
delivery requirements of the Securities Act. The selling stockholders have
informed us that they do not have any agreement or understanding, directly or
indirectly, with any persons to distribute the common stock.
In order
to comply with the securities laws of some states, if applicable, the common
stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the common stock may not be sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
We have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to the
activities of the selling stockholders and their affiliates. In addition, we
will make copies of this prospectus (as it may be supplemented or amended from
time to time) available to the selling stockholders for the purpose of
satisfying the prospectus delivery requirements of the Securities Act. The
selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
We are
required to pay certain fees and expenses incident to the registration of the
shares. We have agreed to indemnify the selling stockholders against
liabilities, including liabilities under the Securities Act and state securities
laws, relating to the registration of the shares offered by this
prospectus.
A-6
EXHIBIT
B
Instrument of
Adherence
Reference
is hereby made to that certain Registration Rights Agreement, dated as of
______, 200__, among Anpath Group, Inc. a Delaware corporation (the “Company”)
and the Investors signatory thereto, as such agreement may be amended from time
to time (the “Registration
Rights Agreement”). Capitalized terms used herein without definition
shall have the respective meanings ascribed thereto in the Registration Rights
Agreement.
The
undersigned, in order to become the owner or holder of Notes in the aggregate
principal amount of [$__________] convertible into [___________] Conversion
Shares and/ or a Warrant or Warrants to purchase [_______] Warrant Shares,
hereby agrees that, from and after the date hereof, the undersigned has become a
party to the Registration Rights Agreement pursuant to Section 13 of the
Registration Rights Agreement and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investors. This
Instrument of Adherence shall take effect and shall become a part of the
Registration Rights Agreement immediately upon execution.
Executed
as of the date set forth below under the laws of the State of New
York.
Signature:__________________________
Name:
Title:
Accepted:
[___________________]
By:________________________
Name:
Title:
Date:______________,
20__
A-7