REGISTRATION RIGHTS AGREEMENT (Demand and Piggyback Rights)
(Demand
and Piggyback Rights)
This
Registration Rights Agreement (the “Agreement”) is made and entered into as of
July 12, 2002, by and between Durban Holdings, Inc., a Nevada corporation with
offices at ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (the
“Company”), and ▇▇▇▇▇▇ ▇▇▇▇ (the “Shareholder”).
RECITALS:
WHEREAS,
the Shareholder owns shares of the Company’s common stock, par value $0.001 per
share (the “Common Stock”);
WHEREAS,
the Shareholder has in the past provided management for the Company for which
the Company has not been able to compensate such party;
WHEREAS,
it is critical for the continued existence of the Company that the Shareholder
continue to provide such services for the Company; and
WHEREAS,
as a condition to the continuation of such services by the Shareholder, the
parties are willing to enter into the agreements contained herein.
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
be
legally bound hereby, the parties hereto agree as follows:
1. Definitions
“Agreement”
is defined in the Preamble to this Agreement.
“Common
Stock” is defined in the Recitals to this Agreement.
“Company”
is defined in the Preamble to this Agreement.
“Demand
Period” is defined in Section 2.1 hereof.
“Demand
Registration” is defined in Section 2.1 hereof.
“Demand
Registration Request” is defined in Section 2.2.1 hereof.
“Demanding
Shareholder” is defined in Section 2.2.1 hereof.
“Holder”
or “Holders” means the Shareholder or any transferee of the
Shareholder.
“Interim
Demand Periods” is defined in Section 2.2.2 hereof.
“Other
Holders” is defined in Section 3.3 hereof.
“Person”
means an individual, a partnership, a joint venture, a corporation, a trust,
an
unincorporated organization and government or any department or agency
thereof.
“Piggyback
Notice” is defined in section 3.1 hereof.
“Piggyback
Registration” is defined in Section 3.1 hereof.
“Registerable
Securities” means (i) the Common Stock owned by the Shareholder as of the date
of this Agreement, (ii) any Common Stock issued by the Company to the
Shareholder following the date of this Agreement, and (iii) any securities
issued or issuable with respect to the Common Stock referred to in clauses
(i)
or (ii) by way of replacement, share dividend, share split or in connection
with
a combination of shares, recapitalization, merger, consolidation or other
reorganization.
“Registration
Expenses” is defined in Section 5.1 hereof.
“Reverse
Acquisition” means the acquisition of a new business venture or entity by the
Company, the result of which would be to transfer control of the Company to
the
Persons who own or control the new business venture or entity, or to Persons
designated by such Persons.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, or any similar federal law
then in force.
“Shareholder”
is defined in the Preamble to this Agreement.
“Supplemental
Demand Registration Request” is defined in Section 2.2.6 hereof.
2. Demands
for Registration
2.1 Demand
Period.
From
the date hereof, until the date which is one year from the date of the first
Reverse Acquisition after the date of this Agreement, but in no event later
than
ten (10) years after the date of this Agreement (the “Demand Period”), subject
to the terms and conditions of this Agreement, the Shareholder will have in
the
aggregate three opportunities, in addition to other rights enumerated in this
Agreement, to request registration under the Securities Act of all or part
of
his, her, or its Registerable Securities (a “Demand
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Registration”).
The Holders of 10% or more of the Registerable Securities shall have the right
to exercise the registration rights under this Section 2.
2.2 Demand
Procedure.
2.2.1 Subject
to Sections 2.2.2 and 2.2.4 below, during the Demand Period any Holder or
combination of Holders (the “Demanding Shareholder”) owning 10% or more of the
Registerable Securities may deliver to the Company a written request (a “Demand
Registration Request”) that the Company register any or all such Demanding
Shareholder’s Registerable Shares.
2.2.2 Holders,
taken together, may only make one Demand Registration Request in each two-month
period during the Demand Period (the “Interim Demand Periods”). The Company
shall only be required to file one registration statement (as distinguished
from
supplements or pre-effective or post-effective amendments thereto) in response
to each Demand Registration Request.
2.2.3 A
Demand
Registration Request from Demanding Shareholder shall (i) set forth the number
of Registerable Securities intended to be sold pursuant to the Demand
Registration Request; (ii) disclose whether all or any portion of a distribution
pursuant to such registration will be sought by means of an underwriting; and
(iii) identify any managing underwriter or managing underwriters proposed for
the underwritten portion, if any, of such registration.
2.2.4 If
during
any Interim Demand Period, the Company receives a Demand Registration Request
from Demanding Shareholder for the registration of Registerable Securities,
then
the Company shall, subject to the limitations in Sections 2.2.5 and 2.2.6
hereof, (i) use its reasonable best efforts to prepare and file within thirty
(30) days of receipt of the Demand Registration Request with the SEC a
registration statement under the Securities Act with respect to all Registerable
Securities that the Demanding Shareholder requested to be registered in the
Demand Registration Request; (ii) use its reasonable best efforts to cause
such
registration statement to become effective within seventy-five (75) days of
receipt of the Demand Registration Request; and (iii) if such registration
can
be accomplished by means of a registration statement on Form S-3, keep such
registration statement effective until such time as the Demanding Shareholder
shall have sold or otherwise disposed of all of their Registerable Securities
included in the registration. If such registration cannot be accomplished by
means of a registration statement on Form S-3, the Company shall use its
reasonable best efforts to keep such registration statement effective for at
least nine (9) months.
2.2.5 The
parties anticipate that the registration contemplated under this Section 2
will
be accomplished by means of the filing of a Form S-3 or SB-2, and that
registration on such form will allow for different means of distribution,
including sales by means of an underwriting as well as sales into the open
market. If the Demanding Shareholder desires to distribute all or part of the
Registerable Securities covered by their request by means of an underwriting,
they shall so advise the Company in writing in their initial Demand
Registration
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Request
as described in Section 2.2.3 above. A determination of whether all or part
of
the distribution will be by means of an underwriting shall be made by Demanding
Shareholder holding a majority of the Registerable Securities to be included
in
the registration. If all or part of the distribution is to be by means of an
underwriting, all subsequent decisions concerning the underwriting which are
to
be made by the Demanding Shareholder pursuant to the terms of this Agreement,
which shall include the selection of the underwriter or underwriters to be
engaged and the representative, if any, of the underwriters so engaged, shall
be
made by the Demanding Shareholders who hold a majority of the Registerable
Securities to be included in the underwriting, subject to approval by the Board
of Directors of the Company.
2.2.6 Upon
the
receipt by the Company of a Demand Registration Request in accordance with
Section 2.2.4 hereof, the Company shall, within ten (10) days following receipt
of such Demand Registration Request, give written notice of such request to
Holders. The Company shall include in such notice information concerning whether
all, part, or none of the distribution is expected to be made by means of an
underwriting, and, if more than one means of distribution is contemplated,
may
require Holders to notify the Company of the means of distribution of their
Registerable Securities to be included in the registration. If any Holder who
is
not a Demanding Shareholder desires to sell any Registerable Securities owned
by
such Holder, such Holder may elect to have all or any portion of his, her,
or
its Registerable Securities included in the registration statement by notifying
the Company in writing (a “Supplemental Demand Registration Request”) within
twenty (20) days of receiving notice of the Demand Registration Request from
the
Company. The right of any Holder to include all or any portion of its
Registerable Securities in an underwriting shall be conditioned upon the
Company’s having received a timely written request for such inclusion by way of
a Demand Registration Request or Supplemental Demand Registration Request (which
right shall be further conditioned to the extent provided in this Agreement).
Any Holder proposing to distribute his, her, or its Registerable Securities
through an underwriting shall enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such
underwriting.
2.2.7 Notwithstanding
any other provision of this Section 2, if an underwriter advises the Company
in
writing that marketing factors require a limitation on the number of shares
to
be underwritten, then the number of shares of Registerable Securities that
may
be included in the underwriting shall be allocated among the Holders in
proportion (as nearly as practicable) to the respective amounts of Registerable
Securities each Holder owns (or in such other proportion as they shall mutually
agree). Registerable Securities excluded or withdrawn from the underwriting
in
accordance with this Section 2.2.7 shall be withdrawn from the
registration.
2.3 Priority
on Request Registration.
The
Company will not include in any Demand Registration any securities which are
not
Registerable Securities without the prior written consent of the Holders of
a
majority of the shares of Registerable Securities included in such registration.
If a Demand Registration is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number
of
Registerable Securities and, if permitted hereunder, other securities requested
to be included in such offering,
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exceeds
the number of securities that can be sold in an orderly manner in such offering
within a price range acceptable to the Holders of a majority of the shares
of
Registerable Securities initially requesting registration, the Company will
include in such registration prior to the inclusion of any securities which
are
not Registerable Securities the number of shares of Registerable Securities
requested to be included that in the opinion of such underwriters can be sold
in
an orderly manner within such acceptable price range, pro rata among the
respective Holders thereof on the basis of the number of shares of Registerable
Securities owned by each such Holder.
3. Piggyback
Registrations
3.1 Right
to Piggyback.
If the
Company proposes to undertake an offering of shares of Common Stock for its
account or for the account of other stockholders and the registration form
to be
used for such offering may be used for the registration of Registerable
Securities (a “Piggyback Registration”), each such time the Company will give
prompt written notice to all Holders of Registerable Securities of its intention
to effect such a registration (each, a “Piggyback Notice”) and, subject to
Sections 3.3 and 3.4 hereof, the Company will use its best efforts to cause
to
be included in such registration all Registerable Securities with respect to
which the Company has received written requests for inclusion therein within
twenty (20) days after the date of sending the Piggyback Notice.
3.2 Priority
on Primary Registrations.
If a
Piggyback Registration is an underwritten primary registration on behalf of
the
Company, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner within
a
price range acceptable to the Company, the Company will include in such
registration (a) first, the securities the Company proposes to sell, and (b)
second, the Registerable Securities requested to be included in such
registration and any other securities requested to be included in such
registration that are held by Persons other than the Holders of Registerable
Securities pursuant to registration rights, pro rata among the holders of
Registerable Securities and the holders of such other securities requesting
such
registration on the basis of the number of shares of such securities owned
by
each such holder.
3.3 Priority
on Secondary Registrations.
If a
Piggyback Registration is an underwritten secondary registration on behalf
of
holders of the Company’s securities other than the Holders of Registerable
Securities (the “Other Holders”), and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested
to
be included in such registration exceeds the number that can be sold in a
orderly manner in such offering within a price range acceptable to the Other
Holders requesting such registration, the Company will include in such
registration (a) first, the securities requested to be included therein by
the
Other Holders requesting such registration, and (b) second, the Registerable
Securities requested to be included in such registration hereunder, pro rata
among the Holders of Registerable Securities requesting such registration on
the
basis of the number of shares of such securities owned by each such
Holder.
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3.4 Selection
of Underwriters.
In the
case of an underwritten Piggyback Registration, the Company will have the right
to select the investment banker(s) and managers(s) to administer the
offering.
4. Registration
Procedures
4.1 Registration.
Whenever the Holders of Registerable Securities have requested that any
Registerable Securities be sold pursuant to this Agreement, the Company will
use
its reasonable best efforts to effect the registration and the sale of such
Registerable Securities in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as
possible:
4.1.1 Registration
Statement.
Prepare
and file with the SEC a registration statement with respect to such Registerable
Securities and use its reasonable best efforts to cause such registration
statement to become effective.
4.1.2 Amendments
and Supplements.
Promptly prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may
be
necessary to keep such registration statement effective for the period required
by the intended method of disposition and the terms of this Agreement and comply
with the provisions of the Securities Act with respect to the disposition of
all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set
forth in such registration statement.
4.1.3 Provisions
for Copies.
Promptly furnish to each seller of Registerable Securities the number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request
in
order to facilitate the disposition of the Registerable Securities owned by
such
seller.
4.1.4 Blue
Sky Laws.
Use its
reasonable best efforts to register or qualify such Registerable Securities
under the securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registerable Securities owned by such
seller, provided, that the Company will not be required to (a) qualify generally
to do business in any jurisdiction where it would not otherwise be required
to
qualify but for this Section 4.1.4; (b) subject itself to taxation in any such
jurisdiction; or (c) consent to general service of process in any such
jurisdiction.
4.1.5 Anti-fraud
Rules.
Promptly notify each seller of such Registerable Securities 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 such
registration statement contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading,
and
in such event, at the request of any such seller, the Company will promptly
prepare a supplement or amendment to such prospectus
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so
that,
as thereafter delivered to the purchasers of such Registerable Securities,
such
prospectus will not contain an untrue statement of a material fact or omit
to
state any material fact necessary to make the statements therein not misleading,
provided, that the Company will not take any action which causes the prospectus
included in such registration statement to contain an untrue statement of
material fact or omit any material fact necessary to make the statements therein
not misleading, except as permitted by Section 4.5.
4.1.6 Securities
Exchange Listing.
Use its
reasonable best efforts to cause all such Registerable Securities to be listed
on each securities exchange on which securities of the same class issued by
the
Company are then listed and use its reasonable best efforts to qualify such
Registerable Securities for trading on each system on which securities of the
same class issued by the Company are then qualified.
4.1.7 Underwriting
Agreement.
Enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the holders of a majority of the shares
of Registerable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registerable
Securities.
4.1.8 Due
Diligence.
Make
available for inspection by any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant, or other
agent retained by any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company’s officers, directors, employees, and independent accountants to supply
all information reasonably requested by any such underwriter, attorney,
accountant, or agent in connection with such registration
statement.
4.1.9 Earning
Statement.
Otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as
reasonably practicable, an earning statement covering the period of at least
twelve months beginning with the first day of the Company’s first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder.
4.1.10 Deemed
Underwriters or Controlling Persons.
Permit
any Holder of Registerable Securities which Holder, in such Holder’s reasonable
judgment, might be deemed to be an underwriter or a controlling person of the
Company, to participate in the preparation of such registration or comparable
statement and to require the insertion therein of material in form and substance
satisfactory to such Holder and to the Company, and furnished to the Company
in
writing, which in the reasonable judgment of such Holder and its counsel should
be included.
4.1.11 Management
Availability.
In
connection with underwritten offerings, make available appropriate management
personnel for participation in the preparation
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and
drafting of such registration or comparable statement, for due diligence
meetings and for “road show” meetings.
4.1.12 Stop
Orders.
Promptly notify Holders of the Registerable Securities of the threat of issuance
by the SEC of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceeding for that purpose, and make every
reasonable effort to prevent the entry of any order suspending the effectiveness
of the registration statement. In the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Registerable Securities included in such registration
statement for sale in any jurisdiction, the Company will use its reasonable
best
efforts promptly to obtain the withdrawal of such order.
4.1.13 Opinions.
At each
closing of an underwritten offering, request opinions of counsel to the Company
and updates thereof (which opinions and updates shall be reasonably satisfactory
to the underwriters of the Registerable Securities being sold) addressed to
the
underwriters covering the matters customarily covered in opinions requested
in
underwritten offerings and such other matters as may be reasonably requested
by
such Holders or their counsel.
4.1.14 Comfort
Letter.
Obtain
a cold comfort letter and related bring down letters from the Company’s
independent public accountants addressed to the selling Holders of Registerable
Securities in customary form and covering such matters of the type customarily
covered by cold comfort letters as the Holders of a majority of the Registerable
Securities being sold reasonably request.
4.2 Further
Information.
The
Company may require each Holder of Registerable Securities to furnish to the
Company in writing such information regarding the proposed distribution by
such
Holder of such Registerable Securities as the Company may from time to time
reasonably request.
4.3 Notice
to Suspend Offers and Sales.
Each
Holder severally agrees that, upon receipt of any notice from the Company of
the
happening of any event of the kind described in Sections 4.1.5 or 4.1.12 hereof,
such Investor will forthwith discontinue disposition of shares of Common Stock
pursuant to a registration hereunder until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 4.1.5 or
until the withdrawal of such order under Section 4.1.12.
4.4 Reference
to Holders.
If any
such registration or comparable statement refers to any Holder by name or
otherwise as the holder of any securities of the Company and if, in the Holder’s
reasonable judgment, such Holder is or might be deemed to be a controlling
person of the Company, such Holder shall have the right to require (a) the
insertion therein of language in form and substance satisfactory to such Holder
and the Company, and presented to the Company in writing, to the effect that
the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the
Company’s
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securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (b)
in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in force,
the
deletion of the reference to such Holder, provided that with respect to this
clause (b) such Holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to
the
Company.
4.5 Company’s
Ability to Postpone.
Notwithstanding anything to the contrary contained herein, the Company shall
have the right twice in any twelve month period to postpone the filing of any
registration statement under Sections 2 or 3 hereof or any amendment or
supplement thereto for a reasonable period of time (all such postponements
not
exceeding ninety (90) days in the aggregate in any twelve month period) if
the
Company furnishes the Holders of Registerable Securities a certificate signed
by
the Chairman of the Board of Directors or the President of the Company stating
that, in its good faith judgment, the Company’s Board of Directors (or the
executive committee thereof) has determined that effecting the registration
at
such time would materially and adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other comparable
transaction, or would require the Company to make public disclosure of
information the public disclosure of which would have a material adverse effect
upon the Company.
5. Registration
Expenses
5.1 Expense
Borne by Company.
Except
as specifically otherwise provided in Section 5.2 hereof, the Company will
be
responsible for payment of all expenses incident to any registration hereunder,
including, without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, road show expenses, advertising expenses and
fees and disbursements of counsel for the Company and all independent certified
public accountants and other Persons retained by the Company in connection
with
such registration (all such expenses borne by the Company being herein called
the “Registration Expenses”).
5.2 Expense
Borne by Selling Security Holders.
Each
selling security holder will be individually responsible for payment of his,
her, or its own legal fees (if the selling security holder retains legal counsel
separate from that of the Company), underwriting fees and brokerage discounts,
commissions and other sales expenses incident to any registration hereunder.
Any
other expenses to be borne by the selling security holders which are common
to
all of the selling security holders shall be divided among such security holders
(including the Company and holders of the Company’s securities other than
Registerable Securities, to the extent that securities are being registered
on
behalf of such Persons) pro rata on the basis of the number of shares being
registered on behalf of each such security holder, or as such security holders
may otherwise agree.
6. Indemnification
Section
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6.1 Indemnification
by Company.
The
Company agrees to indemnify, to the fullest extent permitted by law, each Holder
of Registerable Securities and each Person who controls (within the meaning
of
the Securities Act) such Holder against all loses, claims, damages, liabilities,
and expenses in connection with defending against any such losses, claims,
damages, or liabilities, or in connection with any investigation or inquiry,
in
each case caused by or based on any untrue or alleged untrue statement of
material fact contained in any registration statement, prospectus, or
preliminary prospectus or any amendment thereof or supplement thereto, or any
omission or alleged omission of a material fact required to be stated therein
or
necessary to make the statements therein not misleading, or arise out of any
violation by the Company of any rules or regulations promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, except insofar
as
the same are (i) contained in any information furnished in writing to the
Company by such Holder expressly for use therein; (ii) caused by such Holder’s
failure to deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto; or (iii) caused by such Holder’s failure to
discontinue disposition of shares after receiving notice from the Company
pursuant to Section 4.3 hereof. In connection with an underwritten offering,
the
Company will indemnify such underwriters, their officers and directors and
each
Person who controls (within the meaning of the Securities Act) such underwriters
at least to the same extent as provided above with respect to the
indemnification of the Holders of Registerable Securities.
6.2 Indemnification
by Holder.
In
connection with any registration statement in which a Holder of Registerable
Securities is participating, each such Holder will furnish to the Company in
writing such information as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, will indemnify the Company, its directors and officers and
each Person who controls (within the meaning of the Securities Act) the Company
against any losses, claims, damages, liabilities and expenses resulting from
any
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission
is
contained in any information so furnished in writing by such Holder expressly
for use in connection with such registration; provided that the obligation
to
indemnify will be individual to each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registerable
Securities pursuant to such registration statement. In connection with an
underwritten offering, each such Holder will indemnify such underwriters, their
officers and directors and each Person who controls (within the meaning of
the
Securities Act) such underwriters at least to the same extent as provided above
with respect to the indemnification of the Company.
6.3 Assumption
of Defense by Indemnifying Party.
Any
Person entitled to indemnification hereunder will (a) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification and (b) unless in such indemnified party’s reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist
with respect to such claim, permit such indemnifying party to assume the defense
of
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such
claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in
the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim.
6.4 Binding
Effect.
The
indemnification provided for under this Agreement will remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director, or controlling Person of such indemnified party
and will survive the transfer of securities. The Company also agrees to make
such provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company’s indemnification is
unavailable for any reason. Each Holder of Registerable Securities also agrees
to make such provisions, as are reasonably requested by any indemnified party,
for contribution to such party in the event such Holder’s indemnification is
unavailable for any reason.
7. Participation
in Underwritten Registrations
No
Person
may participate in any registration hereunder which is underwritten unless
such
Person (a) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements, and other documents
required under the terms of such underwriting arrangements.
8. Miscellaneous.
8.1 No
Inconsistent Agreements.
The
Company will not hereafter enter into any agreement with respect to its
securities which violates the rights granted to the Holders of Registerable
Securities in this Agreement.
8.2 Remedies.
Any
Person having rights under any provision of this Agreement will be entitled
to
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. The parties hereto agree and acknowledge that money damages
may
not be an adequate remedy for any breach of the provisions of this Agreement
and
that any party may in his, her, or its sole discretion apply to any court of
law
or equity of competent jurisdiction (without posting any bond or other security)
for specific performance and for other injunctive relief in order to enforce
or
prevent violation of the provisions of this Agreement.
8.3 Term.
Except
for the provisions of Section 6 or as specifically otherwise provided herein,
the provisions of this Agreement shall apply until such time as all
Registerable
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Securities
have ceased to be Registerable Securities hereunder but in no event later than
ten (10) years from the date of this Agreement.
8.4 Amendments
and Waivers.
Except
as otherwise specifically provided herein, this Agreement may be amended or
waived only upon the prior written consent of the Company and of the Holders
of
a majority of the then outstanding shares of Registerable
Securities.
8.5 Successors and Assigns.
All
covenants and agreements in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In addition, whether
or not any express assignment has been made, the provisions of this Agreement
which are for the benefit of the Shareholder or Holders of Registerable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of such securities so long as such securities continue to be restricted
securities, as that term is defined in Securities Act Rule 144.
8.6 Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
8.7 Counterparts.
This
Agreement may be executed simultaneously in multiple counterparts, any one
of
which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same
Agreement.
8.8 Descriptive
Headings.
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a part of this Agreement.
8.9 Governing Law.
All
questions concerning the construction, validity, and interpretation of this
Agreement will be governed by and construed in accordance with the domestic
laws
of the State of Utah, without giving effect to any choice of law or conflict
of
law provision or rule (whether of the State of Utah or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
the
State of Utah.
8.10 Entire Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto with respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
8.11 Notices.
All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by facsimile transmission, sent to the recipient by reputable
express courier service (charges
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prepaid),
or three (3) business days after being mailed to the recipient by certified
or
registered mail, return receipt requested and postage prepaid. Such notices,
demands, and other communications will be sent to each Holder at the address
indicated on the records of the Company and to the Company at the address set
forth in the Agreement or to such other address or to the attention of such
other person as the recipient party has specified by prior written notice to
the
sending party.
8.12 Confidentiality.
The
Company shall hold in strict confidence and shall not disclose information
with
respect to sales of Common Stock by any Holder, including the fact of such
sales, the amount of such sales and the timing of such sales, except as such
information shall become public without violation of this Section 8.12, as
may
be required by applicable law, rules, or regulations or with the express written
consent of such Investor.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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THE
COMPANY:
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Durban
Holdings, Inc.
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By
/s/
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▇▇▇▇▇▇
▇▇▇▇, President
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THE
SHAREHOLDER:
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/s/
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▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇
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▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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