Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of the ____ day of __________
by and between Branded Media Corporation, a Nevada corporation (the "Company"),
and the Holder listed on the execution page of this Agreement (the "Holder").
WHEREAS, simultaneously with the execution and delivery of this Agreement,
the Holder is ________________ to the Company pursuant to a
______________________________ dated the date hereof from the Company; and
WHEREAS, the Company desires to grant to each Holder the registration
rights set forth herein with respect to the Registrable Securities (as defined
below).
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS. For all purposes of this Agreement, all of the words and
expressions used herein which are not defined herein, but which are defined in
the Convertible Secured Promissory Note, Security Agreement or Warrant Agreement
shall have the same respective meanings herein as the meanings specified
therein. As used in this Agreement:
(a) the term "Business Day" shall mean any day other than Saturday,
Sunday or a day on which banking institutions are not required to be open in The
State of New York.
(b) the term "Commission" shall mean the Securities and Exchange
Commission;
(c) the term "Common Shares" shall mean the shares of Common Stock
issued pursuant to the Convertible Secured Promissory Note and Warrant
Agreement;
(d) the term "Common Stock" shall mean the Common Stock, par value
$0.001 per share, of the Company;
(e) the term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any federal statute or code which is a successor thereto;
(f) the term "Form S-1" shall mean the form so designated, promulgated
by the Commission for registration of securities under the Securities Act, and
any forms succeeding to the functions of such form, whether or not bearing the
same designation;
(g) the term "Holder" shall mean any Holder;
(h) the terms "register", "registered" and "registration" shall refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering by the
Commission of effectiveness of such registration statement;
(i) the term "Registrable Securities" shall mean, in relation to a
Holder at any particular time: (i) all Common Shares and (ii) shall not include
1
any other shares of capital stock of the Company without the consent of the
Holder; PROVIDED, HOWEVER, that with respect to any particular Registrable
Security, such security shall cease to be a Registrable Security when, as of the
date of determination, (A) it has been effectively registered under the
Securities Act and disposed of pursuant thereto, (B) registration under the
Securities Act is no longer required for the immediate public distribution
within a 90-day period of such security together with all other Registrable
Securities held by the Holder pursuant to the provisions of Rule 144 thereunder,
or (C) it has ceased to be outstanding;
(j) the term "Registration Expenses" shall mean all expenses incident
to the Company's performance of or compliance with Section 3 and 4, including,
without limitation, all registration, filing, listing, and NASD fees, all fees
and expenses of complying with securities or blue sky laws, all word processing,
duplicating, printing and engraving expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any audits or comfort letters
required by or incident to such performance and compliance, the fees and
disbursements of a single counsel retained by the Holder or Holder of more than
50.1% of the Registrable Securities, not to exceed $5,000, premiums and other
costs of policies of insurance against liabilities arising out of the public
offering of the Registrable Securities being registered, and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions and transfer
taxes, if any.
(k) the term "Registration Statement" shall mean the registration
statement and any additional registration statements contemplated by Section 3,
including (in each case) the prospectus, amendments and supplements to such
registration statement or prospectus, all exhibits thereto, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
(l) the term "Rule 144" shall mean Rule 144 issued by the Commission
under the Securities Act, or any subsequent rule pertaining to the disposition
of securities without registration; and
(m) the term "Securities Act" shall mean the Securities Act of 1933,
as amended, or any federal statute or code which is a successor thereto.
2. RESTRICTION ON TRANSFER. Each Holder acknowledges and understands that
prior to the registration of the Registrable Securities as provided herein, the
Registrable Securities are "restricted securities" as defined in Rule 144 and
that no disposition or transfer of the Registrable Securities may be made by the
Holder in the absence of (i) an opinion of counsel to the Holder that such
transfer may be made without registration under the Securities Act (which shall
be reasonably acceptable to the Company), or (ii) such registration.
3. REGISTRATION ON FORM S-1. The Company will use its best efforts, but in
no event later than 90 days following the date of the Company becoming fully
reporting (the "Registration Period"), prepare and file with the Commission a
2
Registration Statement on Form S-1 to permit a public offering and resale of the
Registrable Securities under the Securities Act on a continuous basis under Rule
415. Subject to receipt of necessary information from the Holder, the Company
will use commercially reasonable efforts to cause the Registration Statement to
be declared effective by the Commission within the Registration Period. To the
extent not unlawful, the Company will pay all Registration Expenses of each
registration of Registrable Securities pursuant to this Section 3. The number of
shares of Common Stock designated in the Registration Statement to be registered
shall be equal to the number of Common Shares.
4. REGISTRATION PROCEDURES. The Company will use commercially reasonable
efforts in good faith to promptly effect the registration of the Registrable
Securities under the Securities Act and to permit the public offering and resale
of the Registrable Securities in accordance with the intended method of
disposition thereof, and, in connection therewith, the Company, as expeditiously
as shall be reasonably possible, will:
(a) prepare and file with the Commission a Registration Statement with
respect to the Registrable Securities, and thereafter use its commercially
reasonable efforts to cause such registration statement to become and remain
effective until the date that is one year after the date such Registration
Statement is declared effective by the Commission or such earlier date when all
Registrable Securities covered by such Registration Statement have been sold
(the "Effectiveness Period"); PROVIDED, HOWEVER, that before filing such
Registration Statement or any amendments thereto, the Company will furnish to
the Holder.
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus included in such
Registration Statement as may be necessary or advisable to comply in all
material respects with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement or as may
be necessary to keep such Registration Statement effective and current during
the Effectiveness Period;
(c) furnish to each seller of Registrable Securities such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto), the prospectus included in such
Registration Statement (including each preliminary prospectus) in conformity
with the requirements of the Securities Act, and such other documents as any
such seller may reasonably request in order to facilitate the disposition of the
Registrable Securities held by such seller;
(d) enter into such customary agreements and take all such other
customary actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities;
(e) use its commercially reasonable efforts to register and qualify
the Registrable Securities covered by such registration statement under such
securities or Blue Sky laws of such jurisdictions as any seller shall reasonably
request and do any and all such other acts and things as may be reasonably
3
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities held by such seller; PROVIDED,
HOWEVER that the Company shall not be required in connection therewith to
qualify to do business or file a general consent to service of process in any
such jurisdiction;
(g) notify each seller of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing and use its reasonable efforts to amend or
supplement such prospectus in order to cause such prospectus not to include any
untrue statement of a material fact or omit to state material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; and
(h) use reasonable efforts to cause all Registrable Securities to be
listed on such securities exchange on which similar securities of the Company
are then listed and to be qualified for trading on each system on which the
securities issued by the Company are from time to time qualified.
Notwithstanding the foregoing, if at any time or from time to time after
the date of effectiveness of the Registration Statement, the Company notifies
the Holder in writing of the existence of a Potential Material Event, the Holder
shall not offer or sell any Registrable Securities, or engage in any other
transaction involving or relating to the Registrable Securities, from the time
of the giving of notice with respect to a Potential Material Event until such
Holder receive written notice from the Company that such Potential Material
Event either has been disclosed to the public or no longer constitutes a
Potential Material Event; PROVIDED, HOWEVER, that the Company may not so suspend
the right of such Holder of Registrable Securities for more than two twenty (20)
Business Day periods in the aggregate during any period of 12 consecutive
months, during the periods the Registration Statement is required to be in
effect ("Permitted Suspension Period") and; PROVIDED, FURTHER, that the
Effectiveness Period shall be extended by any Permitted Suspension Period;
"Potential Material Event" shall mean any of the following: (i) the possession
by the Company of material information not ripe for disclosure in a Registration
Statement, which shall be evidenced by determination in good faith by the Board
of Directors of the Company that disclosure of such information in the
Registration Statement would be detrimental to the business and affairs of the
Company; or (ii) any material engagement or activity by the Company that would,
in the good faith determination of the Board of Directors of the Company, be
adversely affected by disclosure in a Registration Statement at such time, which
determination shall be accompanied by a good faith determination by the Board of
Directors of the Company that, the registration statement would be materially
misleading, absent the inclusion of such information.
4
5. COOPERATION BY PROSPECTIVE SELLERS, ETC.
(a) The Holder will furnish to the Company in writing such information
as the Company may reasonably require from the Holder or as required by the
Commission, and otherwise reasonably cooperate with the Company in connection
with any Registration Statement with respect to such Registrable Securities.
(b) The Holder of Registrable Securities included in any Registration
Statement will not (until further notice) effect sales thereof after receipt of
telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update such Registration Statement or prospectus.
(c) Holder agrees that it will deliver a prospectus in accordance with
the provisions of the Securities Act and all applicable rules of the Commission
in connection with each sale and will notify the Company when it has sold all of
its Registrable Securities.
6. INDEMNIFICATION.
(a) Indemnification by the Company. The Company will indemnify the
Holder, the officers, directors, and partners of each such Holder, and each
person who controls any thereof (within the meaning of the Securities Act),
against any and all claims, losses, damages, and liabilities (or actions in
respect thereof), joint or several, to which such Holder or any such officer,
director, partner, or controlling persons may become subject under the
Securities Act or otherwise arising out of or based on any untrue statement (or
alleged untrue statement) of any material fact contained in any Registration
Statement, prospectus, offering circular, or other document, or any amendment or
supplement thereto, incident to any registration, qualification, or compliance
(or in any related registration statement, notification or the like) or any
omission (or alleged omission) to state therein any material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to any action or inaction
required of the Company in connection with any such registration, qualification,
or compliance, and the Company will reimburse each such Holder, officer,
director, partner, and controlling person for any legal or other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability, or action; PROVIDED, HOWEVER, that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company in an
instrument duly executed by such Holder, officer, director, partner, or
controlling person and stated to be exclusively and specifically for use
therein. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder, officer, director, partner,
or controlling person. (b) Indemnification by the Holder. Each Holder will
indemnify the Company, its officers and directors, and each person, if any who
controls any thereof (within the meaning of the Securities Act) and, if required
by the underwriter effecting the related registration, such underwriter, and
their respective successors in title and assigns against any and all claims,
5
losses, damages, and liabilities (or actions in respect thereof) with respect to
any untrue statement (or alleged untrue statement) of any material fact
contained in any Registration Statement, prospectus, offering circular, or other
document incident to any registration, qualification or compliance (or in any
related registration statement, notification or the like) or any omission (or
alleged omission) to state therein any material fact required to be stated
therein or necessary to make the statement therein not misleading, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Holder specifically stating
that it is for use in the preparation of such Registration Statement,
prospectus, offering circular, or other document; and each Holder will reimburse
the Company and each other person indemnified pursuant to this paragraph (b) for
any legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
PROVIDED, HOWEVER, that such Holder's liability under such indemnification shall
be limited to the net sales proceeds actually received by such Holder from the
sale of Registrable Securities pursuant to such Registration Statement,
prospectus, offering circular, or other document. (c) Indemnification
Proceedings. Each party entitled to indemnification pursuant to this Section 6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification pursuant to this Section 6 (the "Indemnifying Party") promptly
after such Indemnified Party acquires actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party (at its
expense) to assume the defense of any claim or any litigation resulting there
from; PROVIDED that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or litigation, shall be reasonably acceptable to the
Indemnified Party, and the Indemnified Party may participate in such defense at
such party's expense; and PROVIDED, FURTHER, that the failure by any Indemnified
Party to give notice as provided in this paragraph (c) shall not relieve the
Indemnifying Party of its obligations under this Section 6 except to the extent
that the Indemnifying Party is damaged as a result of the failure to give
notice. 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 to such claim or
litigation. The reimbursement required by this Section 6 shall be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expense, loss, damage, or liability is incurred.
7. RULE 144 REQUIREMENTS. The Company will make publicly available and
available to the Holder of Registrable Securities, pursuant to Rule 144 of the
Commission under the Securities Act, such information as shall be necessary to
enable the Holder of Registrable Securities to make sales of Registrable
Securities pursuant to such rule. The Company will furnish to any Holder of
Registrable Securities, upon request made by such Holder at any time, a written
statement signed by the Company, addressed to such Holder, describing briefly
the action the Company has taken or proposes to take to comply with the current
public information requirements of Rule 144. The Company will, at the request of
any Holder of Registrable Securities, upon receipt from such Holder of a
6
certificate certifying (i) that such Holder has held such Registrable Securities
for a period of not less than one (1) year, (ii) that such Holder has not been
an affiliate (as defined in Rule 144) of the Company for more than the ninety
(90) preceding days, and (iii) as to such other matters as may be appropriate in
accordance with such rule, remove from the stock certificates representing such
Registrable Securities that portion of any restrictive legend, which relates to
the registration provisions of the Securities Act.
8. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company will not, at any time
after the date hereof, enter into any agreement or contract (whether written or
oral) with respect to any of its securities that prevents the Company from
complying in any respect with the registration rights granted by the
Company to the Holder of Registrable Securities pursuant to this Agreement.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this paragraph (b), may not be amended, modified, or
supplemented, and any waiver or consent to or any departure from any of the
provisions of this Agreement may not be given and shall not become or be
effective, unless and until (in each case) the Company shall have received the
prior written consent of the Holder for any such amendment, modification,
supplement, waiver, or consent.
(c) Permitted Transferees. All of the agreements contained in, and all
of the rights granted by the Company pursuant to this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, and assigns. In addition, whether or not an express
assignment shall have been made, the provisions of this Agreement that are for
the benefit of the parties hereto other than the Company shall also benefit of
and be enforceable by any subsequent holder of any Registrable Securities,
PROVIDED, that the transfer Registrable Securities to such subsequent holder
shall have been made in accordance with applicable laws and regulations and all
applicable provisions of the Purchase Agreement.
(d) Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered by hand, sent
via overnight courier, sent by facsimile, or mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
if to the Company, to:
Branded Media Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ - President
or to such other person at such other place as the Company
shall designate to the Holder in writing; and if to the Holder, at its address
as set forth in the Security Agreement, or at such other address or addresses as
may have been furnished to the Company in writing. Notices provided in
accordance with this Section 8(d) shall be deemed delivered (i) upon personal
7
delivery with signature required, (ii) one Business Day after they have been
sent to the recipient by reputable overnight courier service (charges prepaid
and signature required) (iii) upon confirmation, answer back received, of
successful transmission of a facsimile message containing such notice if sent
between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and
as of 9 a.m. local time of the recipient on the next Business Day if sent at any
other time, or (iv) three Business Days after deposit in the mail.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but both of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other party.
(f) Term. The agreements of the Company contained in this Agreement
shall continue in full force and effect so long as any Holder holds any
Registrable Securities.
(g) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(h) Governing Law. The provisions of this Agreement shall be governed
by and construed in accordance with the laws (other than the choice-of-law
rules) of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written by their duly authorized
representatives shown below:
HOLDER BRANDED MEDIA CORPORATION
By: By:
-------------------------- -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
8