REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of May 6, 2002, among ▇▇▇▇▇▇, Inc., a New York corporation (the
"Company"), and each of Benefoot, Inc., a New York corporation ("Benefoot"),
Benefoot Professional Products, Inc., a New York corporation ("Benefoot
Professional Products") and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇" and together with
Benefoot and Benefoot Professional Products, the "Purchasers").
This Agreement is being entered into pursuant to the Asset Purchase
Agreement, dated as of the date hereof, by and among the Company, GoodFoot
Acquisition Co., a Delaware corporation, Benefoot, Benefoot Professional
Products, ▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇ (the "Purchase Agreement"). Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Purchase Agreement.
The Company and the Purchasers hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Business Day" means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
state of New York generally are authorized or required by law or other
government actions to close.
"Closing Date" means the date of closing under the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value
$0.02 per share.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means the 60th day following the Closing Date.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities, including without
limitation the Purchasers and their permitted assignees.
"Holder Information" shall mean any information reasonably
related to (i) the Registrable Securities, (ii) the plan of distribution, and
(iii) the acquisition of Benefoot and Benefoot Professional Products by the
Company.
"Indemnified Party" shall have the meaning set forth in
Section 6(c).
"Indemnifying Party" shall have the meaning set forth in
Section 6(c).
"Losses" shall have the meaning set forth in Section 6(a).
"Mandatory Registration Statement" means the Registration
Statement required to be filed pursuant to Section 2(a) hereof, including all
amendments thereof (whether pre-effective or post-effective), if any.
"NASDAQ" shall mean the National Association of Securities
Dealers Automatic Quotation System.
"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.
"Piggyback Registration Statement" means any Registration
Statement, if any, required to be filed pursuant to Section 2(b) hereof,
including all amendments thereof (whether pre-effective or post-effective), if
any.
"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) the shares of Common Stock
issued to the Purchasers under the Purchase Agreement, and the securities
issuable upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event with respect to such shares of Common Stock, and
(ii) any other dividend or other distribution with respect to conversion or
exchange of, or in replacement of, Registrable Securities.
"Registration Statement" means the Mandatory Registration
Statement and the Piggyback Registration Statements, and all exhibits thereto,
and all material incorporated by reference into any 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 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 416" means Rule 416 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.
"Securities Act" means the Securities Act of 1933, as amended.
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2. Mandatory and Piggyback Registration.
(a) (i) On or prior to the Filing Date, the Company shall use
its best efforts to prepare and file with the Commission a "shelf" Registration
Statement covering all Registrable Securities for an 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 permissible for such registration in accordance
herewith). Such Registration Statement is hereinafter called the "Mandatory
Registration Statement." Nothing herein shall preclude the Company from
including in the Mandatory Registration Statement any Common Stock of any other
person in addition to the Holders.
(ii) The Company shall use commercially reasonable efforts
to cause the Registration Statement to be declared effective under the
Securities Act as promptly as practicable after the filing thereof and to keep
such Registration Statement continuously effective under the Securities Act
until such date as is the earlier to occur of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold or (y) the date
on which the Registrable Securities may be sold pursuant to Rule 144(k) as
determined by counsel to the Company pursuant to a written opinion letter,
addressed to the Company's transfer agent to such effect (the "Effectiveness
Period").
(b) (i) If any Registrable Securities are not registered under
the Mandatory Registration Statement and the Company proposes to register any of
its Common Stock under the Securities Act, whether for its own account or at the
demand or request of any holder of Common Stock (other than registrations
effected on Forms S-4 or S-8, or forms then appropriate for similar types of
offerings, and provided that the holders of such Common Stock do not have any
rights to exclude from such registration statement the registration of shares of
Common Stock not owned by them), the Company will promptly give notice thereof
(the "Company Registration Notice") to the Holders. Upon the written request of
Holders of not less than 50% of the Registrable Securities within 10 days from
the date of the Company Registration Notice, the Company will use its
commercially reasonable efforts to include such number of shares of Common Stock
requested by such Holders to be included in such registration ("Registration
Shares"), subject to the right of the managing underwriter or representatives of
the underwriters, if any, or the selling stockholders under such other
registration statement, to limit the number of shares of Common Stock which may
be included in such registration statement, as more fully set forth in the
following paragraph. The shares of Common Stock to be included in such
registration shall be offered upon the same terms and conditions, as nearly as
may be, to those applicable to any Common Stock included in such registration.
The Company shall promptly advise the Holders of the effectiveness of any such
registration (which notice shall include a list of the jurisdictions in which
shares of Stock included therein have been qualified for sale).
(ii) If any registration effected pursuant to Section
2(b)(i) above (A) is a registration of shares offered on behalf of the Company
covering an underwritten public offering and (B) the underwriter managing such
offering advises the Company that in its opinion the aggregate amount of
securities requested to be included in such registration, whether by the Company
or the Holders or other holders of Common Stock, exceeds the amount of such
securities which can be sold in such offering, then the Company will include in
such registration only the amount of securities requested to be included in such
registration (which in the opinion of the managing underwriter can be sold) as
reduced in the following order of priority: (1) the Holders hereunder (except in
the case of a registration pursuant to Section 2(a)(i) above), (2) the shares of
Common Stock being offered by persons having demand registration rights, and (3)
the securities which the Company proposes to sell in such offering; provided,
however, that if Holders request the inclusion of shares of Common Stock in such
registration, then the shares being offered by persons other than the Company
which do not have senior rights to require registration of their shares of
Common Stock shall be included in such registration on a pro-rata basis, the
amount of such shares to be included in such registration to be determined (x)
by constructing a
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fraction, the numerator of which is the number of shares to be registered and
the denominator of which is the aggregate number of shares of Common Stock
proposed to be sold by all holders (other than the Company) of shares of Common
Stock, and (y) multiplying the aggregate number of shares to be included in such
registration statement by such fraction. Furthermore, the Holders shall be
restricted from selling the Registrable Securities for such period, which the
Company shall use its commercially reasonable efforts to cause not to exceed six
(6) months from the date such registration statement is first filed covering the
Registrable Securities, to the extent any lead underwriter or managing
underwriter or representation of the underwriters requests that the Holders'
Registrable Securities be so restricted.
3. Registration Procedures.
(a) In connection with the Company's registration obligations
hereunder, the Company shall as expeditiously as reasonably possible (i) prepare
and file with the Commission a registration statement with respect to such
shares of Common Stock (including such indeterminate number of shares of Common
Stock pursuant to Rule 416 to cover securities issuable upon stock splits, stock
dividends or similar transactions) and use its commercially reasonable efforts
to cause such registration statement to become effective and maintain the
effectiveness of such registration statement for the Effectiveness Period, (ii)
use its commercially reasonable efforts to register or qualify the securities
covered by such registration statement under such other securities or state blue
sky laws as the Holder shall request, but not more than five jurisdictions,
except that the Company shall not for any such purpose be required to qualify to
do business as a foreign corporation or to file a general consent to service of
process in any jurisdiction wherein it is not so qualified or has not so
consented to service, and (iii) use its commercially reasonable efforts to list
or qualify for quotation, the securities covered by such registration statement,
with any securities exchange or national quotation system on which the Common
Stock is then listed or quoted.
(b) 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 the Company may postpone or suspend
filing or effectiveness of a registration statement for a period not to exceed
60 consecutive days, provided, however, that the Company may not postpone or
suspend its obligation under this Section 3(b) for more than 90 days in the
aggregate during any 12 month period.
4. Company Obligations.
(a) As long as any Holder owns Registrable Securities, the Company
covenants to use its commercially reasonable efforts to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) 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.
(b) Prior to the filing of the Registration Statement or any related
Prospectus or any amendment or supplement thereto (including any document that
would be incorporated therein by reference), the Company shall furnish to the
Holders and Special Counsel copies of all sections of any document containing
Holder Information which are proposed to be filed, which documents (other than
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those incorporated by reference) will be subject to the review and consent of
such Holders and Special Counsel, which consent shall not be unreasonably
withheld.
(c) During the Effectiveness Period, the Company shall:
(i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to (i) keep the Registration Statement continuously effective as to
the applicable Registrable Securities through the Effectiveness Period; (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; and (iii) respond as promptly as practicable to any comments
received from the Commission with respect to the Registration Statement or any
amendment thereto.
(ii) Notify the Holders of Registrable Securities and Special
Counsel as promptly as practicable (i)(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; (ii) 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 Holder Information; (iii) 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; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation of any Proceeding for such purpose and (v)
of the occurrence of any event that makes any Holder Information contained 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.
(iii) Use its commercially reasonable efforts to cure the
issuance 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, at the earliest practicable moment.
(iv) Promptly deliver to each Holder, without charge, up to
five (5) copies of the Registration Statement, Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto.
(v) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a Registration Statement, which certificates shall be free
of all restrictive legends other than legends referencing any "lock-up"
agreement to which a Holder is subject.
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(vi) Upon the occurrence of any event contemplated by Section
4(c)(ii)(v), as promptly as practicable, 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.
(vii) Use its commercially reasonable efforts to 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 forty-five (45) days after the end of any 12-month period (or
ninety (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.
5. Registration Expenses. All fees and expenses incurred by the
Company in connection with the Company's performance of or compliance with its
obligations hereunder, including without limitation (i) all registration and
filing fees (including any expenses incident to filing with NASDAQ and each
other securities exchange, national quotation system, market or over-the-counter
bulletin board on which the Common Stock issued by the Company is then listed or
quoted), (ii) blue sky fees and expenses, (iii) all printing expenses, and (iv)
all fees and disbursements of counsel and accountants for the Company (including
the expenses of any audit incident to or required by any such registration), and
any other advisors to the Company in connection with the transactions
contemplated hereby, will be paid by the Company. The Holders shall bear their
own expenses for all of their attorneys' fees and expenses, underwriting
discounts, selling commissions and stock transfer taxes incurred in connection
with the sale of the Registrable Securities.
6. Indemnification
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder 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 reasonable 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 in the Registration
Statement, any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in 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 such untrue statements or omissions are based upon
information regarding such Holder furnished in writing to the Company by such
Holder 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 or approved in writing by such Holder for use in the
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto.
(b) Indemnification by Holders. Each Holder shall,
notwithstanding any termination of this Agreement, jointly and severally,
indemnify and hold harmless the Company, the directors, officers, agents,
representatives 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,
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officers, agents or employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, arising
out of or relating to any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus or any form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based 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 that such untrue statement or omission is contained in or omitted from
any information so furnished in writing by such Holder to the Company for
inclusion 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 or approved in writing by such Holder for use in the Registration
Statement, such Prospectus or such form of Prospectus Supplement or in any
amendment or supplement thereto.
(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 assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the
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 to the extent that such failure shall have 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 named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same counsel
were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying Party,
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.
(d) Contribution. If a claim for indemnification under Section
6(a) or 6(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, subject to the limitations set forth
in Section 6(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
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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.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(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
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company, on the
one hand, or by a Holder, on the other hand, of any of their respective
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 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) Governing Law. This Agreement shall be subject to the
exclusive jurisdiction of the courts of New York County, New York. The parties
to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of New York by
virtue of a failure to perform an act required to be performed in the State of
New York and irrevocably and expressly agree to submit to the jurisdiction of
the courts of the State of New York for the purpose of resolving any disputes
among the parties relating to this Agreement or the transactions contemplated
hereby. The parties irrevocably waive, to the fullest extent permitted by law,
any objection which they may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, or any
judgment entered by any court in respect hereof brought in New York County, New
York, and further irrevocably waive any claim that any suit, action or
proceeding brought in New York County, New York has been brought in an
inconvenient forum.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and each of the Holders. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earlier of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice prior to 5:00 p.m., Eastern
time, on a Business Day, (ii) the Business Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
telephone number specified for notice later than 5:00 p.m., Eastern time, on any
date and
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earlier than 11:59 p.m., Eastern time, on such date, (iii) the Business
Day following the date of mailing, if sent by nationally recognized overnight
courier service or (iv) actual receipt by the party to whom such notice is
required to be given. The addresses for such communications shall be with
respect to each Holder at its address set forth under its name on the signature
page hereto, or with respect to the Company, addressed to:
▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Att'n: Chief Executive Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other parties hereto
by such notice. Copies of notices to the Company shall be sent to ▇▇▇▇ ▇▇▇▇▇▇▇,
P.C., 1350 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Att'n:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Facsimile No. 212-245-3009. Notices to any Holder
shall be sent to the addresses listed on Schedule 1 attached hereto, if
applicable. Copies of such notices shall be sent to Jenkens & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Att'n: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., Facsimile No.
▇▇▇-▇▇▇-▇▇▇▇.
(e) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns and shall inure to the benefit of each Holder and its successors and
assigns. The Company may not assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of each Holder. Each
Holder may assign its rights hereunder in the manner and to the Persons as
permitted under this Agreement.
(f) Assignment of Registration Rights. The rights of any of
the Purchasers hereunder, including the right to have the Company register for
resale Registrable Securities in accordance with the terms of this Agreement,
shall be assigned only as follows: (i) by either of Benefoot or Benefoot
Professional Products to (a) its stockholders ("Stockholders") or (b) any trust,
the sole beneficiaries of which are either or both of Benefoot and Benefoot
Professional Products, or (ii) if the rights hereunder are assigned to a
Stockholder, such Stockholder may assign such rights to, and ▇▇. ▇▇▇▇▇▇ may
assign such rights to: (a) his or her "immediate family members" (as defined
herein), (b) any trust, the sole beneficiaries of which are such Stockholder's
or ▇▇. ▇▇▇▇▇▇'▇, as the case may be, immediate family members or (c) the
personal representative, custodian or conservator in the case of the death,
bankruptcy or adjudication of incompetency of a Stockholder or ▇▇. ▇▇▇▇▇▇, as
the case may be (each person or entity set forth in clause (i) or (ii), a
"Permitted Transferee"); provided that any such Permitted Transferee shall
execute and deliver to the Company an agreement to be subject to the terms of
this Agreement to the same extent as if the Permitted Transferee were an
original party to this Agreement. For the purposes of this paragraph, the term
"immediate family members" shall mean the spouse, father, mother, or children of
the Stockholder.
(g) Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(h) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
9
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
[SIGNATURE PAGE FOLLOWS]
10
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.
▇▇▇▇▇▇, INC. BENEFOOT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------- ------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President Title: President
BENEFOOT PROFESSIONAL PRODUCTS, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------ ---------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President
SCHEDULE I
Benefoot, Inc. Benefoot Professional Products, Inc.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trachtenberg & Pauker, LLP Trachtenberg & Pauker, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇