N0119483 2 } 2 “Indemnifying Party” shall have the meaning set forth in Section 5(c). “Investor” or “Investors” shall have the meaning set forth in the Preamble. “Losses” shall have the meaning set forth in Section 5(a). “Person” means an individual...
Exhibit 10.3
{N0119483 2 }
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of __________,
2016, among DLH Holdings Corp., a New Jersey corporation (the “Company”), and each of the parties listed on Schedule I
attached hereto (each an “Investor”, and collectively, the “Investors”).
WITNESSETH:
WHEREAS, the parties hereto are parties to a certain standby purchase agreement (the “Standby
Purchase Agreement”) dated as of _________________, 2016; and
WHEREAS, to induce the Investors to enter into the Standby Purchase Agreement, the Company has
undertaken to register, certain shares of Common Stock (as hereinafter defined) beneficially owned by the Investors
pursuant to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual promises and representations, warranties,
covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings given such terms in the
Standby Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice” shall have the meaning set forth in Section 3.1(m).
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls or is
controlled by or under common control with such Person. For the purposes of this definition, “control,” when used with
respect to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and
the terms of “affiliated,” “controlling” and “controlled” have meanings correlative to the foregoing.
“Agreement” shall have the meaning set forth in the Preamble.
“Blackout Period” shall have the meaning set forth in Section 3.1(n).
“Board” shall have the meaning set forth in Section 3.1(n).
“Business Day” means any day, other than Saturday, Sunday and any day which shall be a legal holiday
or a day on which banks in the state of New York are authorized or required by law or other government action to be
closed.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Company’s common stock, par value $.001.
“Company” shall have the meaning set forth in the Preamble.
“Effectiveness Period” shall have the meaning set forth in Section 2.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party” shall have the meaning set forth in Section 5(c).
{N0119483 2 } 2
“Indemnifying Party” shall have the meaning set forth in Section 5(c).
“Investor” or “Investors” shall have the meaning set forth in the Preamble.
“Losses” shall have the meaning set forth in Section 5(a).
“Person” means an individual or a corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“Prospectus” means the prospectus included in the Registration Statement (including, without limitation,
a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments,
and all material incorporated by reference in such Prospectus.
“Registrable Securities” means (i) (A) the shares of Common Stock issued to the Investors pursuant to the
Rights Offering, as defined in the Standby Purchase Agreement, including but not limited to the shares of Common Stock
issued to the Investors pursuant to the Standby Purchase Agreement and (B) the shares of Common Stock that may be
issued to the Investors upon exercise of those certain Common Stock Purchase Warrants issued to the Investors pursuant to
the Note Purchase Agreement, dated May 2, 2016, by and among the Company and the purchasers party thereto; and (ii)
any other securities (whether issued by the Company or any other Person) distributed as a dividend or other distribution
with respect to, issued upon exchange of, or in replacement of, Registrable Securities referred to in clause (i), provided that
as to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (1) a registration
statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities
shall have been disposed of under such registration statement, provided, however, new certificates therefore not bearing a
legend restricting further transfer shall have been delivered by the Company or its transfer agent, and subsequent transfer or
disposition of such securities shall not require their registration or qualification under the Securities Act or any similar state
law then in force; (2) such securities shall have been transferred pursuant to Rule 144 under the Securities Act (or any
successor provision thereto), provided, however, new certificates therefore not bearing a legend restricting further transfer
shall have been delivered by the Company or its transfer agent, and subsequent transfer or disposition of such securities
shall not require their registration or qualification under the Securities Act or any similar state law then in force; (3) such
securities shall have been otherwise transferred or disposed of; or (4) such securities shall have ceased to be outstanding.
“Registration Statement” means the registration statements and any additional registration statements
contemplated by Section 2 of this Agreement, 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 into such registration statement.
“Rule 144” means Rule 144 promulgated by the Commission 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 Commission having
substantially the same effect as such Rule.
“Rule 158” means Rule 158 promulgated by the Commission 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 Commission having
substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission 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 Commission having
substantially the same effect as such Rule.
“Rule 424” means Rule 424 promulgated by the Commission 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 Commission having
substantially the same effect as such Rule.
{N0119483 2 } 3
“Securities Act” means the Securities Act of 1933, as amended.
“Standby Purchase Agreement” shall have the meaning set forth in the first “WHEREAS” clause.
2. Registration. (a) The Company agrees to use its commercially reasonable efforts to prepare and file with
the Commission, within 90 days from the Closing Date (as such term is defined in the Standby Purchase Agreement), a
“shelf” Registration Statement covering all Registrable Securities for a secondary or resale offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall be on Form S-3 (or on another form appropriate for
such registration in accordance herewith). The Company shall use its commercially reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act (including filing with the Commission a request for
acceleration of effectiveness in accordance with Rule 12d1-2 promulgated under the Exchange Act) promptly after the date
that the Company is notified (orally or in writing, whichever is earlier) by the Commission that a Registration Statement
will not be “reviewed,” or not be subject to further review, and to keep such Registration Statement continuously effective
under the Securities Act until such date when all Registrable Securities covered by such Registration Statement have been
sold (the “Effectiveness Period”).
(b) Piggy-Back Registrations. If at any time during the period commencing from and after the date
hereof, there is not an effective Registration Statement covering all of the Registrable Securities, and the Company intends
to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of
others under the Securities Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated
under the Securities Act) or their then equivalents relating to equity securities to be issued solely in connection with any
acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit
plans, the Company shall send to each Holder of Registrable Securities written notice of such determination and, if within
ten (10) Business Days after receipt of such notice, any such Holder shall so request in writing (which request shall specify
the Registrable Securities intended to be disposed of by the Holders), the Company will cause the registration under the
Securities Act of all Registrable Securities which the Company has been so requested to register by the Holder, to the
extent required to permit the disposition of the Registrable Securities so to be registered, provided that if at any time after
giving written notice of its intention to register any securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written notice of such determination to such Holders
and, thereupon, (i) in the case of a determination not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to pay expenses in accordance with Section 4
hereof), and (ii) in the case of a determination to delay registering, shall be permitted to delay registering any Registrable
Securities being registered pursuant to this Section 2(b) for the same period as the delay in registering such other securities.
The Company shall include in such registration statement all or any part of such Registrable Securities such Holder requests
to be registered. In the case of an underwritten public offering, if the managing underwriter(s) should reasonably object to
the inclusion of the Registrable Securities in such registration statement, then if the Company after consultation with the
managing underwriter should reasonably determine that the inclusion of such Registrable Securities would materially
adversely affect the offering contemplated in such registration statement, and based on such determination recommends
inclusion in such registration statement of fewer or none of the Registrable Securities of the Holders, then (x) the number of
Registrable Securities of the Holders to be included in such registration statement shall be reduced pro-rata among such
Holders (based upon the number of Registrable Securities requested to be included in the registration), if the Company after
consultation with the underwriter(s) recommends the inclusion of fewer Registrable Securities, or (y) none of the
Registrable Securities of the Holders shall be included in such registration statement, if the Company after consultation
with the underwriter(s) recommends the inclusion of none of such Registrable Securities. The right of any Holder to
participate in an underwritten public offering hereunder shall be conditioned upon such Holders entering into the
underwriting agreement and lock-up agreement with the representative of the underwriter or underwriters on the same
terms as required of other selling securities holders in such offering or if there are no other selling securities, as such terms
as may be required by the underwriter. Notwithstanding the foregoing, this subsection 2(b) shall automatically terminate
and be of no further force or effect as to any Holder of Registrable Securities when the Effectiveness Period has expired
with respect to such Holder.
3. Registration Procedures.
3.1 Company Obligations. In connection with the Company’s registration obligations set forth in
Section 2 hereof, the Company shall:
{N0119483 2 } 4
(a) Prepare and file with the Commission as soon as reasonably practicable, a Registration
Statement on Form S-3 (or on another form appropriate for such registration in accordance herewith) in accordance with the
method or methods of distribution thereof as specified by the Holders, and cause the Registration Statement to become
effective and remain effective as provided herein; provided, however, that not less than five (5) Business Days prior to the
filing of the Registration Statement or any related Prospectus and not less than three (3) Business Days prior to the filing of
any amendment or supplement thereto (including any document that would be incorporated therein by reference), the
Company shall (i) furnish to the Holders copies of all such documents proposed to be filed, which documents (other than
those incorporated by reference) will be subject to the review of such Holders and (ii) at the request of any Holder, cause its
officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be
necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or
supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in writing
within three (3) Business Days after their receipt thereof, in which event the filing of the Registration Statement or any such
Prospectus or any amendments or supplements thereto shall be delayed until five (5) Business Days after the parties hereto
reach agreement on the content of the applicable Registration Statement, Prospectus, or amendment or supplement thereto.
(b) If necessary to keep such Registration Statement accurate and complete, (i) prepare and file with
the Commission such amendments, including post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously (but for the filing of such post-effective amendment) effective as
to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond as promptly as reasonably practicable to any comments received from the Commission with
respect to the Registration Statement or any amendment thereto and as promptly as reasonably practicable provide the
Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement;
and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance
with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in
such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold as promptly as reasonably practicable (A)
when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to
be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement
and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the
Registration Statement or any post-effective amendment, when the same has become effective, and thereafter: (i) of any
request by the Commission or any other Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities 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 or threatening of any Proceeding for such purpose; and (iv) of the occurrence of any event that makes any
statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus
or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any 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.
(d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the
withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction within the
United States, at the earliest practicable moment.
(e) If requested by the Holders of a majority in interest of the Registrable Securities, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information
regarding a Holder or the plan of distribution as such majority of Holders may reasonably request, provided that such
information is true and complete in all material respects, and (ii) make all required filings of such Prospectus supplement or
{N0119483 2 } 5
such post-effective amendment as soon as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(f) Furnish to each Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those
previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder, without charge, as many copies of the Prospectus or
Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may
reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto in conformity with the requirements of the Securities Act.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or
cooperate with the Holders in connection with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then
so qualified or to take any action that would subject the Company to general service of process in any jurisdiction were it is
not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Securities sold pursuant to a Registration Statement, which certificates shall be free of all
restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as
any Holder may request.
(j) Upon the occurrence of any event contemplated by Section 3.1(c)(iv), as promptly as possible,
prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any
other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Use its commercially reasonable efforts to cause all Registrable Securities relating to such
Registration Statement to be listed on any securities exchange, quotation system, market or over-the-counter bulletin board,
if any, on which similar securities issued by the Company are then listed.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and
make generally available to its security holders earning statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-
month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the
effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) (i) Require each Holder to furnish to the Company information regarding such Holder and the
distribution of such Registrable Securities as is required by law to be disclosed in the Registration Statement, Prospectus,
supplemented Prospectus and/or amended Registration Statement, including any information necessary to allow the
Company to fulfill its undertakings made in accordance with Item 512 of Regulation S-K, and the Company may exclude
from such registration the Registrable Securities of any such Holder who fails to furnish such information within a
reasonable time prior to the filing of each Registration Statement, Prospectus, supplemented Prospectus and/or amended
Registration Statement.
(ii) If the Registration Statement refers to any Holder by name or otherwise as the holder of any
securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or
otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to
{N0119483 2 } 6
such Holder in any amendment or supplement to the Registration Statement filed at a time when such reference is not
required.
(iii) Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of any event of the kind described in Sections 3.1(c)(ii), 3.1(c)(iii) or 3.1(c)(iv),
such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until
such Holder’s receipt of copies of the supplemented Prospectus and/or amended Registration Statement contemplated by
Section 3.1(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may
be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus or Registration Statement. The Company may provide stop
orders to enforce the provisions of this paragraph, provided that the Company shall promptly remove any such stop orders
as soon as such stop orders are no longer necessary.
(n) If (i) there is material non-public information regarding the Company which the Company’s
Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the
Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited
to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation,
tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the
Company’s best interest to disclose and which the Company would be required to disclose under the Registration
Statement, then, notwithstanding anything to the contrary in this Agreement, the Company may postpone or suspend filing
or effectiveness of a registration statement for a period not to exceed 75 consecutive days, provided that the Company may
not postpone or suspend its obligation under this Section 3.1(n) for more than 90 days in the aggregate during any 12 month
period (each, a “Blackout Period”).
3.2 Obligations of the Investors.
(a) Each Investor agrees to furnish to the Company a completed questionnaire in the form attached
to this Agreement as Exhibit B (a “Selling Stockholder Questionnaire”) on a date that is not less than ten (10) days prior to
the date the Company proposes to file a Registration Statement pursuant to this Agreement. Each Investor shall furnish in
writing to the Company such additional information and documents regarding itself, the Registrable Securities held by it
and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the
registration of such Registrable Securities. An Investor shall provide such information to the Company at least two (2)
Business Days prior to the first anticipated filing date of such Registration Statement if such Investor elects to have any of
the Registrable Securities included in the Registration Statement. The Company shall not be required to include the
Registrable Securities of an Investor in a Registration Statement to such Investor who fails to furnish to the Company a
fully completed Selling Stockholder Questionnaire at least two Business Days prior to the proposed filing date of a
Registration Statement.
(b) Each Investor agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of a Registration Statement hereunder, unless such Investor has notified the
Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each Investor covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales
of Registrable Securities pursuant to a Registration Statement.
4. Registration Expenses
All fees and expenses incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Registration Statement is filed or becomes effective and whether or not
any Registrable Securities are sold pursuant to the Registration Statement. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees
and expenses (A) with respect to filings required to be made with any securities exchange, quotation system, market or
over-the-counter bulletin board on which Registrable Securities are required hereunder to be listed, (B) with respect to
filings required to be made with the Commission, and (C) in compliance with state securities or Blue Sky laws), (ii)
printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing
prospectuses if the printing of prospectuses is requested by the Holders of a majority of the Registrable Securities included
{N0119483 2 } 7
in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) Securities Act liability insurance, if
the Company so desires such insurance, and (v) fees and expenses of all other Persons retained by the Company in
connection with the consummation of the transactions contemplated by this Agreement, including, without limitation, the
Company’s independent public accountants (including the expenses of any comfort letters or costs associated with the
delivery by independent public accountants of a comfort letter or comfort letters, if requested by any underwriter) and legal
counsel. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), and the expense of any audit.
5. Indemnification
(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless each Holder, the officers, directors, agents, and employees of each of them, each
Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, costs
of preparation and attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to any untrue
or alleged untrue statement of a material fact contained or incorporated by reference in (i) the Registration Statement, (ii)
any Prospectus or any form of prospectus, (iii) any amendment or supplement thereto, or (iv) any preliminary prospectus,
or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in the light of the
circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (A) such
untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, which information was reasonably relied on by the Company for use
therein or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of
Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the
Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto, or (B)
such Losses arise in connection with the use by such Holder of a Prospectus (x) after the Company has notified such Holder
of the occurrence of an event as described in Section 3.1(n) and prior to receipt by such notice, or (y) during a Blackout
Period of which the Holder has received written notice from the Company. The Company shall notify the Holders promptly
of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of an Indemnified Party and shall survive the transfer of the Registrable Securities by the Holders.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, the directors, officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising solely out of or based solely upon any untrue statement of a material fact contained in the Registration
Statement, any Prospectus, or any form of prospectus, or arising solely out of or based solely upon any omission of a
material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form
of prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading, to the
extent, but only to the extent, that (i) such untrue statement or omission is contained in or omitted from any information
furnished in writing by such Holder to the Company specifically for inclusion in the Registration Statement or such
Prospectus and that such information was reasonably relied upon by the Company for use in the Registration Statement,
such Prospectus or such form of prospectus or to the extent that such information relates to such Holder or such Holder’s
proposed method of distribution of Registrable Securities and was reviewed and approved by such Holder expressly for use
in the Registration Statement, such Prospectus or such form of Prospectus Supplement, or (ii) such Losses arise in
connection with the use by such Holder of a Prospectus (x) after the Company has notified such Holder of the occurrence of
an event as described in Section 3.1(n), or (y) during a Blackout Period of which the Holder has received written notice
from the Company. Notwithstanding anything to the contrary contained herein, the Holder shall be liable under this Section
5(b) for only that amount as does not exceed the net proceeds to such Holder as a result of the sale of Registrable Securities
pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against
any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party promptly shall notify the
Person from whom indemnity is sought (the “Indemnifying Party) in writing, and the Indemnifying Party shall diligently
assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the
{N0119483 2 } 8
payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination
is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly, diligently and appropriately to assume the defense of such Proceeding and
to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; (3) the Indemnified Party
shall reasonably determine that there may be legal defenses available to it which are not available to the Indemnifying
Party; or (4) the Indemnified Party shall reasonably determine that there is an actual or potential conflict of interest between
it and the Indemnifying Party, including, without limitation, situations in which there are one or more legal defenses
available to the Indemnified Party that are antithetical or in opposition to those available to the Indemnifying Party, and in
any of such cases, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at
the expense of the Indemnifying Party. The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be unreasonably withheld. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect
of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject matter of such Proceeding and does not impose any monetary or other
obligation or restriction on the Indemnified Party.
All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent
incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten (10) Business Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not
entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party because of a failure or refusal of a governmental authority to enforce such indemnification in accordance
with its terms (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in
such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or
alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying
Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be
deemed to include any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with
any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification
provided for in this Section was available to such party in accordance with its terms. Notwithstanding anything to the
contrary contained herein, the Holder shall be liable or required to contribute under this Section 5(c) for only that amount as
does not exceed the net proceeds to such Holder as a result of the sale of Registrable Securities pursuant to such
Registration Statement.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section
5(d) 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. 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 indemnity and contribution agreements contained in this Section are in addition to any liability that
the Indemnifying Parties may have to the Indemnified Parties.
{N0119483 2 } 9
6. Rule 144.
As long as any Holder owns Registrable Securities, the Company covenants to timely file all reports
required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act. As long
as any Holder owns Registrable Securities, if the Company is not required to file reports pursuant to Section 13(a) or 15(d)
of the Exchange Act, it will prepare and furnish to the Holders and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly financial statements, together with a discussion and analysis of
such financial statements in form and substance substantially similar to those that would otherwise be required to be
included in reports required by Section 13(a) or 15(d) of the Exchange Act, as well as any other information required
thereby, in the time period that such filings would have been required to have been made under the Exchange Act. The
Company further covenants that it will take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Person to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder of any of their obligations
under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights
granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any of its subsidiaries has, as of the date
hereof, entered into, nor shall the Company or any of its subsidiaries, on or after the date of this Agreement, enter into, any
agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Without limiting the generality of the foregoing, from and after the effective
date of this Agreement and until the earlier of (i) the date that is thirty (30) days after the Registration Statement
contemplated in Section 2(a) of this Agreement is declared effective and (ii) the date that all Registrable Securities are
eligible for resale by non-affiliates without volume or manner of sale restrictions under Rule 144 and without the
requirement for the Company to be in compliance with the current public information requirements under Rule 144,
without the written consent of the Holders of a majority of the then outstanding Registrable Securities, the Company shall
not grant to any Person the right to request the Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in full of the Holders set forth herein, and are not
otherwise in conflict with the provisions of this Agreement. Notwithstanding the foregoing, however, each Holder of
Registrable Securities hereby acknowledges that the Company has previously entered into agreements granting registration
rights with respect to currently outstanding securities which have not yet been satisfied and that the holders of such other
securities may elect to include such securities in the Registration Statement(s) required to be filed hereunder
(c) Successors and Assigns. This Agreement may not be assigned by a party hereto without the prior
written consent of the Company or the Investor, as applicable. The provisions of this Agreement shall inure to the benefit of
and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this
Agreement.
(d) Counterparts; Faxes. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement
may also be executed via facsimile, which shall be deemed an original.
(e) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
(f) Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter described (i) if given by personal delivery, then
such notice shall be deemed given upon such delivery, (ii) if given by telex or telecopier or electronic mail, then such notice
{N0119483 2 } 10
shall be deemed given upon receipt of confirmation of complete transmittal, (iii) if given by mail, then such notice shall be
deemed given upon the earlier of (A) receipt of such notice by the recipient or (B) three days after such notice is deposited
in first class mail, postage prepaid, and (iv) if given by an internationally recognized overnight air courier, then such notice
shall be deemed given one business day after delivery to such carrier. All notices shall be addressed to the party to be
notified at the address as follows, or at such other address as such party may designate by ten days’ advance written notice
to the other party:
If to the Company:
DLH Holdings Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
Building 3 – ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & Poliakoff, LLP
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to the Investors:
Wynnefield Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(g) Amendments and Waivers. Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investor. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder and its successors and permitted assigns.
(h) Severability. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the
maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the
parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
(i) Entire Agreement. This Agreement constitutes the entire agreement among the parties hereof
with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter hereof and thereof.
(j) Further Assurances. The parties shall execute and deliver all such further instruments and
documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby
and to evidence the fulfillment of the agreements herein contained.
{N0119483 2 } 11
(k) Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of New York without regard to the choice of
law principles thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State
of New York located in New York County and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the giving of notices under this Agreement.
Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit, action or proceeding
and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue of any
such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. 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.
(l) Notice of Effectiveness. Within two (2) Business Days after the Registration Statement which
includes the Registrable Securities is ordered effective by the Commission, the Company shall deliver, and if requested by
the Company’s transfer agent, shall use commercially reasonable efforts to cause legal counsel for the Company in
connection with such Registration Statement to deliver, to the transfer agent for such Registrable Securities (with copies to
the Holders whose Registrable Securities are included in such Registration Statement) confirmation that the Registration
Statement has been declared effective by the Commission substantially in the form attached hereto as Exhibit A.
[Signature Page Follows:]
{N0119483 2 } 12
In Witness Whereof, the parties hereto have caused this Registration Rights Agreement to be duly executed by
their respective authorized persons as of the date first indicated above.
DLH HOLDINGS CORP.
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
WYNNEFIELD PARTNERS SMALL CAP VALUE,
L.P.
By: Wynnefield Capital Management, LLC,
its general partner
By: _______________________________
▇▇▇▇▇▇ ▇▇▇▇, Co-Managing Member
WYNNEFIELD PARTNERS SMALL CAP VALUE,
L.P. I
By: Wynnefield Capital Management, LLC,
its general partner
By: _______________________________
▇▇▇▇▇▇ ▇▇▇▇, Co-Managing Member
WYNNEFIELD SMALL CAP VALUE OFFSHORE
FUND, LTD.
By: Wynnefield Capital, Inc.
By: _______________________________
▇▇▇▇▇▇ ▇▇▇▇, President
{N0119483 2 } 13
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Name and Address of Transfer Agent]
[Date]
Re: DLH Holdings Corp.
Dear [ ]:
We are special counsel to DLH Holdings Corp., a New Jersey corporation (the “Company”), and have
represented the Company in connection with the preparation of a Registration Statement pursuant to a Registration Rights
Agreement between the Company and Wynnefield Partners Small Cap Value, LP, Wynnefield Partners Small Cap Value I
LP, and Wynnefield Partners Small Cap Value Offshore Fund, Ltd. (the “Registration Rights Agreement”) pursuant to
which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights
Agreement), under the Securities Act of 1933, as amended (the “1933 Act”) upon the demand of the Investor. In
connection with the Company’s obligations under the Registration Rights Agreement, on _______________, 2016, the
Company filed a Registration Statement on Form S-3 (File No. 333- ) (the “Registration Statement”)
with the Securities and Exchange Commission (the “SEC”) relating to the Registrable Securities which may be sold under
such Registration Statement by the selling stockholder(s) named therein.
In connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that
the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at ______________, 2016
[DATE OF EFFECTIVENESS] and we have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that
any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or
threatened by, the SEC.
Very truly yours,
[Counsel]
By:
cc: [LIST NAMES OF HOLDERS]
{N0119483 2 } 14
EXHIBIT B
FORM OF SELLING SECURITY HOLDER QUESTIONNAIRE
{N0119483 2 } 15
Schedule I
Standby Purchasers
Wynnefield Partners Small Cap Value, LP I
Wynnefield Partners Small Cap Value, LP
Wynnefield Small Cap Value Offshore Fund, Ltd