Ex. 10.106-Registration Rights Agreement to Vicis
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT made this 1st day of February, 2007 by and
between Medical Media Television, Inc., a Florida corporation (the "Company")
and Vicis Capital Master Fund, a trust formed under the laws of the Cayman
Islands (the "Holder").
R E C I T A L S:
WHEREAS, simultaneously herewith, the Company and the Holder are entering
into a Note Purchase Agreement pursuant to which the Company is issuing the
Holder a secured promissory note convertible into shares of the Company's Common
Stock (the "Note"); and
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Note Purchase Agreement.
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, $.0005 par value per share, of the
Company and any equity securities issued or issuable with respect to the Common
Stock in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"Conversion Shares" means the shares of Common Stock or other equity
securities issued or issuable upon conversion of the Note.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Holder" shall have the meaning set forth in the Preamble.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 4.
"Registrable Securities" means any (i) Conversion Shares and (ii) shares
of Common Stock issued or issuable, directly or indirectly, with respect to the
Common Stock referenced above. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, or (ii) such securities shall
have been sold (other than in a privately negotiated sale) pursuant to Rule 144
(or any successor provision) under the Securities Act, or (iii) the Note has
been paid in full.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may from time to time, be in effect.
2. REGISTRATION.
(a) If, at any time, the Company proposes or is required to register any
of its equity securities or securities convertible or exchangeable for equity
securities under the Securities Act (other than pursuant to (i) registration on
such form or similar form(s) solely for registration of securities in connection
with an employee benefit plan or dividend reinvestment plan, Form S-8 or (ii) a
merger, consolidation or acquisition, Form S-4), whether or not for its own
account, the Company shall give prompt written notice of its intention to do so
to each of the Holders of record of Registrable Securities. Upon the written
request of any Holder, made within 10 days following the receipt of any such
written notice (which request shall specify the maximum number of Registrable
Securities intended to be disposed of by such Holder and the intended method of
distribution thereof), the Company shall use its best efforts to cause all such
Registrable Securities, the Holders of which have so requested the registration
thereof, to be registered under the Securities Act (with the securities which
the Company at the time proposes to register) to permit the sale or other
disposition by the Holders (in accordance with the intended method of
distribution thereof) of the Registrable Securities to be so registered. There
is no limitation on the number of piggyback registrations pursuant to the
preceding sentence which the Company is obligated to effect.
(b) The Holder's rights under this Section 2 shall be subject to the
limitation that, in the event that the Company files a Registration Statement
for an underwritten public offering, intending to distribute shares in an
underwritten offering, the inclusion of the Registrable Securities shall be upon
the condition that: (i) if requested by the managing underwriter as a condition
of the offering, they be sold through the underwriters on the same terms and
conditions as are applicable to the Company or all other selling stockholders of
the Company; or (ii) if such condition is imposed by the managing underwriter,
and the Holder does not wish to sell the Registrable Securities upon such terms
and conditions, the Holder will agree not to transfer or otherwise dispose of
any Registrable Securities for a period of time from the effective date of the
Registration Statement (not to exceed 90 days) specified by the managing
underwriter.
2
(c) At the election of the Holder, the Registrable Securities may be
registered on behalf of the Holder or the Holders members on a pro rata basis
based on their percentage of ownership of the Note.
3. REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this
Agreement to use its best efforts to effect the registration of any of the
Registrable Securities under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to such
Registrable Securities and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the Commission any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than nine months from
the effective date;
(c) as expeditiously as possible furnish to Holder such reasonable numbers
of copies of the prospectus, including a preliminary prospectus, inconformity
with the requirements of the Securities Act, and such other documents as the
selling stockholder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Securities owned by the selling
Stockholder and promptly notify the selling stockholder at any time when a
prospectus is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus would include an
untrue statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Securities covered by the Registration Statement under
the securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Securities
owned by the selling Stockholder; provided, however, that the Company shall not
be required in connection with this Section 3(d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction.
If the Company has delivered preliminary or final prospectuses to the
Holder and, after having done so, the prospectus is amended to comply with the
requirements of the Securities Act, the Company shall promptly notify the Holder
and, if requested, the Holder shall immediately cease making offers of
Registrable Securities and return all prospectuses to the Company. The Company
shall promptly provide the Holder with revised prospectuses and, following
receipt of the revised prospectuses, the Holder shall be free to resume making
offers of the Registrable Securities.
3
4. ALLOCATION OF EXPENSES.
The Company will pay all Registration Expenses of all registrations under
this Agreement. For purposes of this Section, the term "Registration Expenses"
shall mean all expenses incurred by the Company in complying with this
Agreement, including, without limitation, all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel for
the Company state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of
Holder's own counsel.
5. INDEMNIFICATION; CONTRIBUTION.
In the event of any registration of any of the Registrable Securities
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Securities, and its directors
and officers, each underwriter of such Registrable Securities, and each other
person, if any, who controls such seller or underwriter within the meaning of
the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, in so far as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, and any document incorporated therein
by reference or arise out of or are based upon the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Securities
under the Securities Act pursuant to this Agreement, each seller of Registrable
Securities, severally and not jointly, will indemnify and hold harmless the
Company, each of its directors, and officers and each underwriter (if any) and
each person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriters or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement under which
such Registrable Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the preparation
of such Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of such seller hereunder shall be limited to an
amount equal to the net proceeds to such seller from Registrable Securities sold
as contemplated herein.
4
Each party entitled to Indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; providing, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
If the indemnification provided for herein is unavailable to or
insufficient to hold harmless an Indemnified Party hereunder, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to herein 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 in connection with the
statements, omissions, actions, or inactions which resulted in such losses,
claims, damages or liabilities. The relative fault of the Indemnifying Party and
the Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or the Indemnified Party, any action or
inaction by any such party, and the parties' relative intent, knowledge, access
to information, and opportunity to correct or prevent such statement, omission,
action, or inaction. 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. Promptly after receipt by an Indemnified Party hereunder of
written notice of the commencement of any action, suit, proceeding,
investigation, or threat thereof with respect to which a claim for contribution
may be made against an Indemnifying Party hereunder, such Indemnified Party
shall, if a claim for contribution in respect thereto is to be made against an
Indemnifying Party, give written notice to the Indemnifying Party of the
commencement thereof (if the notice specified herein has not been given with
respect to such action); provided, however, that the failure to so notify the
Indemnifying Party shall not relieve it from any obligation to provide
contribution which it may have to any Indemnified Party hereunder, except to the
extent that the Indemnifying Party is actually prejudiced by the failure to give
notice. The parties hereto agree that it would not be just and equitable if
contribution pursuant hereto were determined by pro rata allocation or by any
other method of allocation which does not take account of equitable
considerations referred to herein.
5
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5, contribution by any seller of
Registerable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registerable Securities pursuant
to such Registration Statement.
If indemnification is available hereunder, the Indemnifying Parties shall
indemnify each Indemnified Party to the fullest extent provided herein, without
regard to the relative fault of said Indemnifying Party or Indemnified Party or
any other equitable consideration provided for herein. The provisions hereof
shall be in addition to any other rights to indemnification or contribution
which any Indemnified Party may have pursuant to law or contract, shall remain
in full force and effect regardless of any investigation made by or on behalf of
any Indemnified Party, and shall survive the transfer of securities by any such
party.
6. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING.
In the event that Registrable Securities are sold pursuant to a
Registration Statement in an underwritten offering, the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered and customary covenants and agreements to be
performed by such issuer, including without limitation customary provisions with
respect to indemnification by the Company of the underwriters of such offering.
7. INFORMATION BY HOLDER.
The Holder shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
8. SELECTION OF UNDERWRITER.
In the case of any registration effected pursuant to this Agreement, the
Company shall have the right to designate the managing underwriter in any
underwritten offering with the consent of the Holder, which shall not be
unreasonably withheld.
9. SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon, and inure to the
benefit of, the respective successors, assigns, heirs, executors and
administrators of the parties hereto.
6
10. FURTHER ASSURANCES.
From and after the date hereof, all persons subject to or bound by this
Agreement shall from time to time, at the request of any such other person and
without further consideration, do, execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may
reasonably be requested or required more effectively to evidence and give effect
to the provisions, intent and purposes of this Agreement (including, without
limitation, certificates to the effect that this Agreement continues operative
and as to any defaults hereunder or modifications hereof).
11. NOTICE.
All notices, requests, demands, offerings, acceptances, consents and other
communications required or permitted under this Agreement shall, unless
otherwise provided, be in writing and shall be deemed to have been duly given if
personally delivered and actually received or if mailed by first class
registered or certified mail, return receipt requested, or by first class mail,
addressed to the parties hereto at their respective addresses set forth on the
first page of this Agreement or in each case to such other person or address as
may be designated by notice hereunder. Any such notice, etc. shall be deemed
given on the date of delivery, if delivered, or on the fifth day after the date
of mailing, if mailed.
12. GOVERNING LAW; INTERPRETATION.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and to be performed exclusively therein as to all matters, without reference to
the conflicts of law provision thereof.
(b) All pronouns and words shall be read in appropriate number and gender,
the masculine, feminine and neuter shall be interpreted interchangeably and
singular shall include the plural and vice versa, as the circumstances may
require.
13. SUBMISSION TO JURISDICTION.
Each of the parties hereto irrevocably submits to the non-exclusive
jurisdiction of the federal and state courts located in Florida and New York.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals to this instrument, as of the date first above written.
MEDICAL MEDIA TELEVISION, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇,
President and CEO
HOLDER:
VICIS CAPITAL MASTER FUND
By: Vicis Capital LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇,
Chief Operating Officer