EXHIBIT 10.39
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of November
19, 1999, by and between GENETIC VECTORS, INC., a Florida corporation (the
"Company"), and THE ORBITER FUND, LTD., a _______ __________________
("Orbiter").
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. The following terms have the following meanings:
(a) "Act" means the U.S. Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
(b) "Commission" means the Securities and Exchange Commission.
(c) "Common Stock" means the Common Stock, par value $0.001 per
share, of the Company.
(d) "Registrable Securities" means any Warrant Shares (as defined
herein) held by Orbiter.
(e) "Registration," "register" and like words mean compliance with
all of the laws, rules and regulations (federal, state and local), and
provisions of agreements and corporate documents pertaining to the public
offering of securities, including registration of any public offering of
securities on any form under the Act.
(f) "Warrant Shares" means any shares of Common Stock of the Company
received by Orbiter in connection with the exercise of the Common Stock Purchase
Warrant No. W-9 (the "Warrant") of even date herewith given by the Company to
Orbiter or any new warrant given to Orbiter pursuant to the terms of such
warrant.
2. DEMAND REGISTRATION.
(a) At any time following the exercise of the Warrant and prior to
the Registration of all of the Warrant Shares, and subject to the other
provisions of this Agreement, Orbiter shall have the right, exercisable by
making a written request (the "Registration Request") to the Company, to demand
that the Company effect the Registration of any Registrable Securities in
accordance with the provisions of the Act. Upon receipt of the Registration
Request, the Company shall be obligated to register each of the Registrable
Securities beneficially owned by Orbiter in the manner set forth in Section 2(b)
hereof. Any provision herein to the contrary notwithstanding, the right to
demand Registration pursuant to this Section 2 shall be limited to one (1)
Registration demand. A right to demand Registration hereunder shall be deemed to
have been exercised and all of the Company's demand Registration obligations
hereunder shall be deemed to be fully satisfied when the registration statement
filed on account of such exercise has been declared effective by the Commission.
(b) Following receipt of the Registration Request pursuant to Section
2(a) hereof, the Company shall (i) file within ninety (90) days thereafter a
registration statement on the appropriate form under the Act for the shares of
Common Stock that the Company has been requested to Register; (ii) if the
applicable Offering is pursuant to an underwriting agreement, enter into an
underwriting agreement in such form as said managing or sole underwriter shall
require (which must only contain terms and conditions customary for offerings of
equity securities of entities with market capitalizations that are approximately
equal to the Company's then current market capitalization and may contain
customary provisions requiring the Company and Orbiter to indemnify and provide
contribution to the underwriter or underwriters of such Offering); and (iii) use
its reasonable best efforts to have such registration statement declared
effective as promptly as practicable and to remain effective for at least one
hundred and twenty (120) days. Notwithstanding any other provision hereof,
Orbiter acknowledges and agrees that there can be no guarantee or warranty from
or by the Company that any such registration statement will ever be declared
effective by the Commission, and that the Company makes no such guarantee or
warranty in this Agreement or otherwise.
3. PIGGYBACK REGISTRATION. At any time following the exercise of the
Warrant and prior to the Registration of all of the Warrant Shares, and subject
to the other provisions of this Agreement, the Company shall advise Orbiter by
written notice at least thirty (30) days prior to the filing of any registration
statement under the Act by the Company (other than a registration statement on
Form ▇-▇, ▇▇▇▇ ▇-▇ or subsequent similar forms), and will upon the provision of
written notice from Orbiter as described below include in any such registration
statement such information as may be required to permit a public offering of the
Registrable Securities desired to be registered by Orbiter; provided, however,
that if the sole underwriter or managing underwriters advise the Company that
the inclusion in the offering of securities proposed to be sold by Orbiter would
adversely affect the ability of the Company to complete the public offering,
then the Company shall have no obligation to register any shares held by Orbiter
in connection with such registration statement. If Orbiter desires to have its
Registrable Securities included in such registration statement, it must so
advise the Company in writing within fifteen (15) days after the date of receipt
of the Company's notice of registration, setting forth the amount of Registrable
Securities for which registration is requested. Notwithstanding any other
provision hereof, Orbiter acknowledges and agree that there can be no guaranty
or warranty from or by the Company that such registration statement will ever be
declared effective by the Commission, and that the Company makes no such
guarantee or warranty in this Agreement or otherwise.
4. INFORMATION TO BE FURNISHED BY ORBITER. Orbiter shall furnish to the
Company in writing all information within its possession or knowledge required
by the applicable rules and regulations of the Commission and by any applicable
state securities or blue sky laws concerning Orbiter, the proposed method of
sale or other disposition of the shares of Common Stock being sold by Orbiter in
such Offering, and the identity of and compensation to be paid to any proposed
underwriter or underwriters to be employed in connection with such Offering.
5. COSTS AND EXPENSES. The Company shall pay all costs and expenses in
connection with the Registration under this Agreement; provided, however, that
Orbiter shall bear the fees and expenses of its own counsel and accountants and
any selling expenses relating to Registrable Shares registered on behalf of
Orbiter in connection with such Offering, including without limitation, any
transfer taxes, underwriting discounts or commissions.
6. NOTICES. All notices and other communications provided for hereunder
must be in writing and shall be deemed to have been given on the same day when
personally delivered or sent by confirmed facsimile transmission or on the next
business day when delivered by receipted courier service or on the third
business day when mailed with sufficient postage, certified mail, return receipt
requested, to the following addresses:
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If to the Company: Genetic Vectors, Inc.
▇▇▇▇ ▇. ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ Center - Suite 2000
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Orbiter: The Orbiter Fund, Ltd.
______________________
______________________
______________________
or to such other address as any party shall have furnished to the other parties
pursuant to this Section 6.
7. ENTIRE AGREEMENT; MODIFICATION OF AGREEMENT; CONSENTS. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof. Changes in or additions to this Agreement may be made
and/or compliance with any covenant or condition herein set forth may be omitted
only upon written consent of all the parties hereto.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted successors,
transferees and assigns.
9. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without regard to any of its
principles of conflicts of law. All parties hereto (a) agree that any suit,
action or proceeding arising out of or relating to the Agreement shall be
instituted only in a Federal or state court in Miami-Dade County, Florida, (b)
waive any objection which they may now or hereafter have to the laying of such
venue of any such suit, action or proceeding, and (c) irrevocably submit to the
jurisdiction of such Federal or state court in Miami-Dade County, Florida in any
such suit, action or proceeding.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original and both of which together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first set forth above.
GENETIC VECTORS, INC.
By:________________________
Name:______________________
Its:_______________________
THE ORBITER FUND, LTD.
By:________________________
Name:______________________
Its:_______________________