[EXHIBIT 10.22]
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August 2, 2004, by and among INYX, Inc. (the "Company")
and each purchaser named on the signature pages hereto (each a "Purchaser"
and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Company and the Purchasers
(the "Purchase Agreement").
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
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herein that are defined in the Purchase Agreement shall have the meanings
given such terms in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
"Effectiveness Date" means, with respect to the Registration
Statement required to be filed pursuant to Section 2(a) of this Agreement,
no later than the earlier of (i) one hundred twenty (120) calendar days
following the Tranche 2 Closing Date or (ii) one hundred twenty (120)
calendar days from the date hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Filing Date" means, with respect to the Registration Statement
required to be filed hereunder, no later than the earlier of (i) forty-five
(45) calendar days following the Tranche 2 Closing Date or (ii) sixty (60)
calendar days from the date hereof.
"Holder" or "Holders" means the holder or holders, as the case may
be, from time to time of Registrable Securities (including any permitted
assignee).
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"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 or
deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means the Shares, the Warrant Shares and any
shares of Common Stock issued or issuable upon any stock split, dividend
or other distribution, recapitalization or similar event with respect to
the foregoing or in connection with any provisions in the Warrants.
"Registration Statement" means the registration statements required
to be filed hereunder (which, at the Company's option, may be an existing
registration statement of the Company previously filed with the Commission,
but not declared effective), including (in each case) the Prospectus,
amendments and supplements to the registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and
all material incorporated by reference or deemed to be incorporated by
reference in the registration statement.
"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.
"Securities Act" means the Securities Act of 1933, as amended.
"Tranche 2 Closing Date" means the date of the final closing of the
proposed private placement of the Company's securities on a $4,000,000
minimum, $7,000,000 maximum basis pursuant to which Sands Brothers
International Ltd. shall act as placement agent.
2. Registration.
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(a) Mandatory Registration. No later than the Filing Date,
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the Company shall prepare and file with the Commission the Registration
Statement covering the resale of all of the Registrable Securities for an
offering to be made on a continuous basis pursuant to Rule 415. The
Registration Statement required hereunder shall be on Form SB-1 or Form
SB-2 (except if the Company is not then eligible to register for resale
the Registrable Securities on Form SB-1 or Form SB-2, in which case the
Registration shall be on another appropriate form in accordance herewith).
The Registration Statement required hereunder shall contain the Plan of
Distribution, attached hereto as Annex A (which may be modified to respond
to comments, if any, received by the Commission). The Company shall cause
the Registration Statement to become effective and remain effective as
provided herein. The Company shall use its best efforts to cause the
Registration Statement to be declared effective under the Securities Act
as promptly as possible after the filing thereof and shall use its best
efforts to keep the Registration Statement continuously effective under
the Securities Act until the earlier date when all Registrable Securities
covered by the Registration Statement (a) have been sold pursuant to the
Registration Statement or an exemption from the registration requirements
of the Securities Act or (b) may be sold pursuant to Rule 144(k) (the
"Effectiveness Period").
(b) Filing Default Damages. If a Registration Statement is
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not filed on or prior to the Filing Date, then the Company shall pay to
the Holder, for each thirty (30) day period of such failure and until the
date a Registration Statement is filed and/or the Registrable Securities
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may be sold pursuant to Rule 144(k), as the case may be, an amount in cash,
as partial liquidated damages and not as a penalty, equal to two (2%) percent
of the aggregate Purchase Price paid by the Holder for the Company's
securities pursuant to the Purchase Agreement. If the Company fails to pay
any partial liquidated damages pursuant to this Section 2(b) in full within
five (5) days of the date payable, the Company shall pay interest thereon
at a rate of 18% per annum (or such lesser maximum amount that is permitted
to be paid by applicable law) to the Purchaser, accruing daily from the
date such partial liquidated damages are due until such amounts, plus all
such interest thereon, are paid in full.
(c) Effectiveness Default Damages. If a Registration
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Statement is not declared effective by the Company on or prior to the
Effectiveness Date, then the Company shall pay to the Holder, for each
thirty (30) day period until the Registration Statement is declared
effective, an amount in cash equal to two (2%) percent of the aggregate
Purchase Price paid by the Holder for the Company's securities pursuant
to the Purchase Agreement.
(d) Piggyback Registrations Rights. If, at any time during the
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Effectiveness Period, there is not an effective Registration Statement
covering the Registrable Securities (other than the Registrable Securities
of a Holder that failed to comply with its obligations under Section 3(j)
hereof), and the Company shall determine 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, then the Company shall send to each
Holder a written notice of such determination at least twenty (20) days
prior to the filing of any such registration statement and, if within ten
(10) days after receipt by a Holder, the Company shall receive a request
in writing from any such Holder, the Company shall include in such
registration statement all or any part of such Registrable Securities such
Holder requests to be registered; provided, however, that (i) if, at any
time after giving written notice of is intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company determines for any reason
not to proceed with such registration, the Company will be relieved of its
obligation to register any Registrable Securities in connection with such
registration, and (ii) in case of a determination by the Company to delay
registration of its securities, the Company will be permitted to delay the
registration of Registrable Securities for the same period as the delay
in registering such other securities.
3. Registration Procedures. In connection with the Company's
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registration obligations hereunder, the Company shall:
(a) Not less than five (5) business days prior to the filing
of the Registration Statement or any related Prospectus or any amendment
or supplement thereto, the Company shall furnish to the Holder a draft of
the Registration Statement.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable
Registrable Securities for the Effectiveness Period; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus
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supplement, and as so supplemented or amended to be filed pursuant to
Rule 424; and (iii) respond to any comments received from the Commission
with respect to the Registration Statement or any amendment thereto.
(c) Notify the Holders of Registrable Securities to be sold
as promptly as reasonably possible: (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 the Registration Statement and
whenever the Commission comments in writing on the Registration Statement
(the Company shall upon request provide true and complete copies thereof
and all written responses thereto to each of the Holders, subject, if
appropriate, to the execution of confidentiality agreements in form
acceptable to the Company); 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 during the period of effectiveness of the
Registration Statement for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission or any other federal or state governmental
authority 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 or threatening
of any Proceeding for such purpose; and (v) of the occurrence of any event
or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or 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 light of the circumstances under which they were made, not
misleading.
(d) Use its best 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, at the earliest practicable moment.
(e) Promptly deliver to each Holder no later than five (5)
business days after the Effectiveness Date, without charge, two (2) copies
of the Prospectus or Prospectuses (including each form of prospectus) and
each amendment or supplement thereto (and, upon the request of the Holder
such additional copies as such Persons may reasonably request in connection
with resales by the Holder of Registrable Securities). The Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by the Holder in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto, except after the giving of any notice pursuant to
Section 3(c).
(f) Prior to any resale of Registrable Securities by a Holder,
use its best efforts to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or exemption
from the registration or qualification) of such Registrable Securities for
the resale by the Holder under the securities or Blue Sky laws of such
jurisdictions within the United States as any Holder reasonably requests
in writing, to keep such registration or qualification (or exemption
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therefrom) effective during the Effectiveness Period and to do any and all
other acts or things reasonably necessary to enable the disposition in such
jurisdictions of the Registrable Securities covered by the 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, subject the Company to any material tax in any such
jurisdiction where it is not then so subject or file a general consent to
service of process in any such jurisdiction.
(g) Upon the occurrence of any event contemplated by
Section 3(c)(v), as promptly as reasonably 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 light of the
circumstances under which they were made, not misleading.
(h) Use its best efforts to comply with all applicable
rules and regulations of the Commission relating to the registration of
the Registrable Securities pursuant to the Registration Statement or
otherwise.
(i) The Company agrees that the Selling Shareholder
Questionnaire attached hereto as Exhibit A, satisfies all of the
information required to be provided by each Holder in connection with the
Registration Statement. The Company shall not be required to include any
Holder that does not complete, date and execute a Selling Shareholder
Questionnaire.
(j) The Company shall either (a) cause all the Registrable
Securities covered by a Registration Statement to be listed on each
securities exchange on which securities of the same class or series issued
by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (b) secure
designation and quotation of all the Registrable Securities covered by the
Registration Statement on the Nasdaq National Market or the Nasdaq SmallCap
Market, or, (c) if the Company is unsuccessful in satisfying the preceding
clauses (a) or (b), the Company shall secure the inclusion for quotation
on The American Stock Exchange, Inc. or if it is unable to, the NASD Bulletin
Board for such Registrable Securities and, without limiting the generality
of the foregoing, to arrange for at least two (2) market makers to register
with the National Association of Securities Dealers, Inc. ("NASD") as such
with respect to such Registrable Securities. The Company shall pay all fees
and expenses in connection with satisfying its obligation under this
Section 3(j).
(k) The Company covenants that it shall file the reports
required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder so long as the
Holder owns any Registrable Securities, but in no event longer than two
(2) years; provided, however, the Company may delay any such filing but
only pursuant to Rule 12b-25 under the Exchange Act, and the Company shall
take such further reasonable action as the Holder may reasonably request
(including, without limitation, promptly obtaining any required legal
opinions from Company counsel necessary to effect the sale of Registrable
Securities under Rule 144 and paying the related fees and expenses of such
counsel), all to the extent required from time to time to enable such Holder
to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under
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the Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the Commission. Upon the
request of any Holder of Registrable Securities, the Company will deliver
to such Holder a written statement as to whether it has complied with such
requirements.
4. Registration Expenses. All fees and expenses incident to the
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performance of or compliance with this Agreement by the Company shall be
borne by the Company whether or not any Registrable Securities are sold
pursuant to the Registration Statement, other than fees and expenses of
counsel or any other advisor retained by the Holders and discounts and
commissions with respect to the sale of any Registrable Securities by the
Holders. 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 the Trading Market on which the Common
Stock is then listed for trading, and (B) in compliance with applicable
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 reasonably requested by the holders of a majority of the Registrable
Securities included in the Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel
for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement.
5. Indemnification
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(a) Indemnification by the Company. The Company shall,
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notwithstanding any termination of this Agreement, indemnify and hold
harmless the Holder, the officers, directors, agents and employees of it,
each Person who controls the 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,
reasonable attorneys' fees) and expenses (including the cost (including
without limitation, reasonable attorneys' fees) and expenses relating to
an Indemnified Party's actions to enforce the provisions of this Section
5) (collectively, "Losses"), as incurred, to the extent 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 light of the circumstances under which
they were made) not misleading, except to the extent, but only to the extent,
that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished (or in the case of an omission,
not furnished) in writing to the Company by or on behalf of such Holder
expressly 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 (it being understood that the Holder has approved Annex A hereto
for this purpose), (2) in the case of an occurrence of an event of the type
specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated
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or defective Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(d), or (3)
the failure of the Holder to deliver a prospectus prior to the confirmation
of a sale. 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.
(b) Indemnification by Holder. The Holder shall indemnify and
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hold harmless the Company, its 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,
to the extent arising out of or based upon: (x) the Holder's failure to
comply with the prospectus delivery requirements of the Securities Act or
(y) any untrue or alleged untrue statement of a material fact contained
in any 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 not misleading (i) to the extent, but only to the extent,
that such untrue statement or omission is contained in any information so
furnished (or in the case of an omission, not furnished) in writing by or
on behalf of such Holder to the Company specifically for inclusion in the
Registration Statement or such Prospectus or (ii) to the extent that (1)
such untrue statements or omissions are based solely upon information
regarding such Holder furnished (or in the case of an omission, not
furnished) in writing to the Company by or on behalf of such Holder expressly
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, such Prospectus or such form of Prospectus or in any amendment
or supplement thereto, or (2) in the case of an occurrence of an event of
the type specified in Section 3(c)(ii)-(v), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder
in writing that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(b), or (3)
the failure of the Holder to deliver a Prospectus prior to the confirmation
of a sale. In no event shall the liability of any selling Holder hereunder
be greater in amount than the dollar amount of the Subscription Amount paid
by the Holder in the Purchase Agreement.
(c) Conduct of Indemnification Proceedings. If any Proceeding
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shall be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall promptly
notify the Person from whom indemnity is sought (the "Indemnifying Party")
in writing, and the Indemnifying Party shall have the right to 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 (and only) to the extent that such failure shall have
materially 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; (2) the Indemnifying Party shall have failed
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promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding;
or (3) 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 the reasonable fees and expenses of one separate counsel for all
Indemnified Parties in any matters related on a factual basis shall be at
the expense of the Indemnifying Party). The Indemnifying Party shall not
be liable for any settlement of any such Proceeding affected 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.
All reasonable 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) Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not entitled
to indemnification hereunder, determined based upon the relative faults
of the parties.
(d) Contribution. If a claim for indemnification under
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Section 5(a) or Section 5(b) is unavailable to an Indemnified Party (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 5(c), 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.
6. Miscellaneous.
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(a) Compliance. The Holder covenants and agrees that it will
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comply with the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
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(b) Discontinued Disposition. The Holder agrees by its
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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
Section 3(c), such Holder will forthwith discontinue disposition of such
Registrable Securities under the Registration Statement until such
Holder's receipt of the copies of the supplemented Prospectus and/or
amended Registration Statement 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 appropriate stop orders to enforce the provisions of this
paragraph.
(c) Amendments and Waivers. The provisions of this Agreement,
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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 Holder of the then outstanding Registrable
Securities.
(d) Notices. Any and all notices or other communications or
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deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of (i) the
Trading Day following the date of mailing, if sent by nationally recognized
overnight courier service, or (ii) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and
communications shall be delivered and addressed as set forth in the Purchase
Agreement.
(e) Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the successors and permitted assigns of each
of the parties and shall inure to the benefit of the Holder.
(f) Execution and Counterparts. This Agreement may be executed
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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.
(g) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of New York
without regard to the conflicts of laws principles thereof. The parties
hereto hereby irrevocably agree that any suit or proceeding arising
directly and/or indirectly pursuant to or under this Agreement, shall be
brought solely in a federal or state court located in the City, County and
State of New York. By its execution hereof, the parties hereby covenant
and irrevocably submit to the in personam jurisdiction of the federal and
state courts located in the City, County and State of New York and agree
that any process in any such action may be served upon any of them personally,
or by certified mail or registered mail upon them or their agent, return
receipt requested, with the same full force and effect as if personally
served upon them in New York City. The parties hereto waive any claim that
any such jurisdiction is not a convenient forum for any such suit or
proceeding and any defense or lack of in personam jurisdiction with respect
thereto. In the event of any such action or proceeding, the party prevailing
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therein shall be entitled to payment from the other party hereto of its
reasonable counsel fees and disbursements.
(h) Severability. If any term, provision, covenant or
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restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, 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 commercially 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.
(i) Headings. The headings in this Agreement are for
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convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
INYX, INC
By:_______________________________
Name:
Title:
(PURCHASERS SIGNATURE TO REGISTRATION RIGHTS AGREEMENT)
__________________________________
By:_______________________________
Name:
Title:
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ANNEX A
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Plan of Distribution
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The Selling Stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility
on which the shares are traded or in private transactions. These sales may
be at fixed or negotiated prices. The Selling Stockholders may use any one
or more of the following methods when selling shares:
* ordinary brokerage transactions and transactions in which the
broker/dealer solicits purchasers;
* block trades in which the broker/dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
* purchases by a broker/dealer as principal and resale by the
broker/dealer for its account;
* an exchange distribution in accordance with the Rules of the
applicable exchange;
* privately negotiated transactions;
* settlement of short sales;
* broker/dealers may agree with the Selling Stockholders to sell
a specified number of such shares at a stipulated price per
share;
* a combination of any such methods of sale; and
* any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under
the Securities Act, if available, rather than under this prospectus.
Broker/dealers engaged by the Selling Stockholders may arrange for
other brokers/dealers to participate in sales. Broker/dealers may receive
commissions from the Selling Stockholders (or, if any broker/dealer acts
as agent for the purchaser of shares, from the purchaser) in amounts to
be negotiated. The Selling Stockholders do not expect these commissions
to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock owned by
them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of common
stock from time to time under this prospectus, or under an amendment to
this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act of 1933 amending the list of Selling Stockholders to include
the pledgee, transferee or other successors in interest as Selling
Stockholders under this prospectus.
The Selling Stockholders and any broker/dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within
the meaning of the Securities Act in connection with such sales. In such
event, any commissions received by such broker/dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions under the Securities Act. The Selling
Stockholders have informed the Company that it does not have any agreement
or understanding, directly or indirectly, with any person to distribute
the Common Stock.
The Company is required to pay all fees and expenses incident to the
registration of the shares. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
EXHIBIT A
Selling Shareholder Questionnaire
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