EXIBIT 10.50 Form of Registration Rights Agreement dated September 24, 2007
EXIBIT
10.50
Form
of Registration Rights Agreement dated September 24, 2007
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Execution
Copy
THIS
REGISTRATION RIGHTS AGREEMENT, dated as of September 24, 2007, is by and between
MANARIS CORPORATION, a Nevada corporation (the “Company”),
and
IMPERIUM MASTER FUND, LTD., a Cayman Islands company (“Imperium”).
Imperium
is the holder of a Warrant, dated as of August 22, 2007 (the “Advisory
Fee Warrant”),
exercisable for five percent of the outstanding shares of the Company’s Common
Stock, par value $0.00001 per share (the “Common
Stock”).
The
Company has agreed, on the terms and subject to the conditions set forth in
the
Securities Purchase and Loan Agreement, dated as of the date hereof (the
“Loan
Agreement”),
to
issue and sell to Imperium (A) a 6% Original Issue Discount Senior Secured
Convertible Note in the form attached to the Loan Agreement (the “Convertible
Note”),
and
(B) a Warrant in the form attached to the Loan Agreement (such Warrant, together
with the Advisory Fee Warrant, the “Warrants”).
In
order
to induce Imperium to enter into the Loan Agreement, the Company has agreed
to
provide certain registration rights with respect to the resale of the shares
of
Common Stock (A) into which the Convertible Note is convertible (the
“Conversion
Shares”)
and
(B) for which the Warrants are exercisable (the “Warrant
Shares”).
In
consideration of Imperium entering into the Loan Agreement, and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
(a) For
purposes of this Agreement, the following terms shall have the meanings
specified:
“Closing
Date”
has
the
meaning set forth in the Loan Agreement.
“Common
Stock”
has
the
meaning set forth in the recitals
to this
Agreement.
“Company”
has
the
meaning set forth in the preamble
to this
Agreement.
“Conversion
Shares”
has
the
meaning set forth in the recitals
to this
Agreement.
“Convertible
Note”
has
the
meaning set forth in the recitals
to this
Agreement.
“Effective
Date”
means
the date on which the Registration Statement is declared effective by the
Commission.
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“Filing
Deadline”
means
October 22, 2007.
“Holder”
means
any Person owning or having the right to acquire any Registrable
Securities.
“Loan
Agreement”
has
the
meaning set forth in the recitals
to this
Agreement.
“Registrable
Securities”
means
the Conversion Shares, the Warrant Shares and any other shares of Common Stock
(or other securities) issued or issuable pursuant to the terms of the
Convertible Notes or the Warrants, and any shares of capital stock issued or
issuable from time to time (with any adjustments) in replacement of, in exchange
for or otherwise in respect of the Conversion Shares and the Warrant Shares
and
any other shares listed on Schedule 5.12 of the Loan Agreement.
“Registration
Deadline”
means
January 14, 2008.
“Registration
Default Payment Amount”
means
the sum of (i) the greater of (x) 1.5% of the Purchase Price and (y) the product
of the then current Market Price multiplied by the aggregate number of
Registrable Securities issued or issuable pursuant to the terms of the
Convertible Notes and the Warrants (other than the Advisory Fee Warrant) plus
(ii) the product of the current Market Price multiplied by the aggregate number
of Registrable Securities issued or issuable pursuant to the terms of the
Advisory Fee Warrant.
“Registration
Period”
has
the
meaning set forth in Section
2(d)
of this
Agreement.
“Registration
Statement”
means
a
registration statement or statements prepared in compliance with the Securities
Act and pursuant to Rule 415 under the Securities Act (“Rule
415”)
or any
successor rule providing for the offering of securities on a continuous or
delayed basis.
“Rule
415 Amount”
has
the
meaning specified in Section 2(b) of this Agreement.
“Subsequent
Registration Statement”
has
the
meaning specified in Section 2(b) of this Agreement.
“Warrants”
has
the
meaning set forth in the recitals
to this
Agreement.
“Warrant
Shares”
has
the
meaning set forth in the recitals
to this
Agreement.
(b) Terms
Defined in the Loan Agreement.
Any
capitalized term used but not defined herein has the meaning specified in the
Loan Agreement.
(c) Usage.
All
definitions contained in this Agreement are equally applicable to the singular
and plural forms of the terms defined. The words “hereof”, “herein” and
“hereunder” and words of similar import refer to this Warrant as a whole and not
to any particular provision of this Warrant.
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2. REGISTRATION.
(a) Filing
of Registration Statement.
On or
before the Filing Deadline, the Company shall prepare and file with the
Commission a Registration Statement on Form SB-2 as a “shelf” registration
statement under Rule 415 covering the resale of a number of shares of
Registrable Securities equal to two hundred percent (200%) of the number of
shares of Common Stock issuable upon conversion in full of the Notes and
exercise in full of the Warrants (such number to be determined without regard
to
any restriction on such conversion or exercise). Such Registration Statement
shall state, to the extent permitted by Rule 416 under the Securities Act,
that
it also covers such indeterminate number of additional shares of Common Stock
as
may become issuable upon the conversion of the Notes and exercise of the
Warrants in order to prevent dilution resulting from stock splits, stock
dividends or similar events.
(b) Rule
415 Amount.
The
amount of Registrable Securities required to be included in the Registration
Statement shall be limited to not less than 100% of the maximum amount
(“Rule
415 Amount”)
of
Common Stock which may be included in a single Registration Statement without
exceeding registration limitations imposed by the Commission pursuant to Rule
415 of the Securities Act. In the event that less than all of the Registrable
Securities are included in the Registration Statement as a result of the
limitation described in this Section
2(b),
then
the Company will file additional Registration Statements each registering the
Rule 415 Amount (each such Registration Statement, a “Subsequent
Registration Statement”),
until
all of the Registrable Securities have been registered. The Filing Date and
Effective Date of each such Subsequent Registration Statement shall be,
respectively, five (5) and sixty (60) days after the earlier of (i) the first
day such Subsequent Registration Statement may be filed without objection by
the
Commission based on Rule 415 of the Securities Act and (ii) one hundred twenty
(120) days from the date on which the most recent Registration Statement filed
pursuant to this Section 2 was declared effective by the
Commission.
(c) S-3
Registration Statement.
Notwithstanding the foregoing Section
2(a),
in the
event that the Company files a Registration Statement on Form SB-2, and
thereafter meets the eligibility requirements to use Form S-3 for the resale
of
Registrable Securities by the Holders, the Company shall re-file such
Registration Statement, or file a new Registration Statement on Form S-3
covering the greater of (i) the number of shares then registered on the existing
Registration Statement(s) (and not previously sold pursuant to an existing
Registration Statement or pursuant to Rule 144) and (ii) the number of shares
required to be registered pursuant to the terms of this Agreement, as promptly
as practicable (but in no event later than thirty (30) days) after the Company
meets such requirements.
(d) Effectiveness.
The
Company shall use its best efforts to cause the Registration Statement to become
effective as soon as practicable following the filing thereof, but in no event
later than the Registration Deadline. The Company shall respond promptly to
any
and all comments made by the staff of the Commission with respect to a
Registration Statement, and shall submit to the Commission, within five (5)
Business Days after the Company learns that no review of such Registration
Statement will be made by the staff of the Commission or that the staff of
the
Commission has no further comments on such Registration Statement, as the case
may be, a request for acceleration of the effectiveness of such Registration
Statement to a time and date not later than five (5) Business Days after the
submission of such request. The Company will maintain the effectiveness of
each
Registration Statement filed pursuant to this Agreement until the earlier to
occur of (i) the date on which all of the Registrable Securities eligible for
resale thereunder have been publicly sold pursuant to the Registration Statement
or Rule 144, and (ii) the date on which all of the Registrable Securities
remaining to be sold under such Registration Statement (in the reasonable
opinion of counsel to the Company) may be immediately sold to the public under
Rule 144(k) under the Securities Act or any successor provision (the period
beginning on the Registration Deadline and ending on the earliest to occur
of
clause
(i)
or
(ii)
above
being referred to herein as the “Registration
Period”)
or
until such later date as the Company shall determine.
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(e) Registration
Default.
If (i)
the Registration Statement is not filed on or before the Filing Deadline or
declared effective by the Commission on or before the Registration Deadline,
(ii) after a Registration Statement has been declared effective by the
Commission, sales of Registrable Securities (other than such Registrable
Securities as are then freely saleable pursuant to Rule 144(k)) cannot be made
by a Holder under a Registration Statement for any reason not within the
exclusive control of such Holder or (iii) an amendment or supplement to a
Registration Statement, or a new registration statement, required to be filed
pursuant to the terms of Section
3(i),
is not
filed on or before the date required thereby (each of the foregoing clauses
(i),
(ii)
and
(iii)
being
referred to herein as a “Registration
Default”),
the
Company shall pay each Holder an amount of cash equal to such Holder’s
pro
rata
share
(based on the number of Registrable Securities then held by or issuable to
such
Holder) of the Registration Default Payment and, for each 30 day period
thereafter that such Registration Default remains uncured, an additional cash
payment equal the Registration Default Payment Amount (pro
rated
for any
period of less than 30 days). The first payment required to be made by the
Company under this Section
2(e)
shall be
made within five (5) Business Days following the date on which a Registration
Default first occurs and subsequent payments shall be made on the earlier of
(A)
the last day of each 30 day period in which such Registration Default is
continuing and (B) the date on which such Registration Default is cured (or,
if
any such day is not a Business Day, on the Business Day immediately following
such day). Notwithstanding the foregoing, the total amount of liquidated damages
payable by the Company pursuant to this Section
2(e) shall
be
capped at an aggregate amount of nine percent (9%) of the Purchase Price. Any
such payment shall be in addition to any other remedies available to each Holder
at law or in equity, whether pursuant to the terms hereof or
otherwise.
(f) Allocation
of Registered Shares.
The
initial number of Conversion Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro
rata
among
the Holders (based on the number of Registrable Securities then held by or
issuable to each Holder) at the time the Registration Statement covering such
initial number of Registrable Securities or increase thereof is declared
effective by the Commission. In the event that a Holder sells or otherwise
transfers any of such Holder’s Registrable Securities, each transferee shall be
allocated the portion of the then remaining number of Registrable Securities
included in such Registration Statement and allocable to such
Holder.
(g) Registration
of Other Securities.
During
the period beginning on the date hereof and ending on the Effective Date, the
Company shall refrain from filing any registration statement (other than (i)
a
Registration Statement filed hereunder or that otherwise includes the
Registrable Securities or (ii) a registration statement on Form S-8 with respect
to stock option plans and agreements and stock plans currently in effect and
disclosed in the Securities Purchase Agreement or the schedules thereto). In
no
event shall the Company include any securities other than Registrable Securities
on any Registration Statement filed by the Company on behalf of the Holders
pursuant to the terms hereof.
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3. ADDITIONAL
COVENANTS OF THE COMPANY.
In
addition to performing its obligations hereunder, including, without limitation,
those pursuant to Section
2
above,
the Company shall, with respect to each Registration Statement:
(a) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the prospectus used in connection with such
Registration Statement as may be necessary to comply with the provisions of
the
Securities Act or to maintain the effectiveness of such Registration Statement
during the Registration Period, or as may be reasonably requested by a Holder
in
order to incorporate information concerning such Holder or such Holder’s
intended method of distribution;
(b) as
soon
as practicable following the Closing, take all steps necessary and otherwise
use
its best efforts to secure the listing on the Principal Market of the
Registrable Securities, and at any Holder’s request, provide such Holder with
reasonable evidence thereof;
(c) so
long
as a Registration Statement is effective covering the resale of the applicable
Registrable Securities owned by a Holder, furnish to each Holder such number
of
copies of the prospectus included in such Registration Statement, including
a
preliminary prospectus, in conformity with the requirements of the Securities
Act, and such other documents as such Holder may reasonably request in order
to
facilitate the disposition of such Holder’s Registrable Securities;
(d) use
commercially reasonable efforts to register or qualify the Registrable
Securities under the securities or “blue sky” laws of such jurisdictions within
the United States as shall be reasonably requested from time to time by a
Holder, and do any and all other acts or things which may reasonably be
necessary or advisable to enable such Holder to consummate the public sale
or
other disposition of the Registrable Securities in such jurisdictions;
provided
that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such jurisdiction;
(e) notify
each Holder immediately after becoming aware of the occurrence of any event
(but
shall not, without the prior written consent of such Holder, disclose to such
Holder any facts or circumstances constituting material non-public information)
as a result of which the prospectus included in such Registration Statement,
as
then in effect, contains an untrue statement of material fact or omits 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, and as promptly as practicable prepare and file with the
Commission and furnish to each Holder a reasonable number of copies of a
supplement or an amendment to such prospectus as may be necessary so that such
prospectus does not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
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(f) use
commercially reasonable efforts to prevent the issuance of any stop order or
other order suspending the effectiveness of such Registration Statement and,
if
such an order is issued, to use commercially reasonable efforts to obtain the
withdrawal thereof at the earliest possible time and to notify each Holder
in
writing of the issuance of such order and the resolution thereof;
(g) furnish
to each Holder, on the date that such Registration Statement, or any successor
registration statement, becomes effective, a letter, dated such date, signed
by
outside counsel to the Company and addressed to such Holder, confirming such
effectiveness and, to the knowledge of such counsel, the absence of any stop
order;
(h) permit
counsel for each Holder to review such Registration Statement and all amendments
and supplements thereto, and any comments made by the staff of the Commission
and the Company’s responses thereto, within three Business Days prior to the
filing thereof with the Commission (or, in the case of comments made by the
staff of the Commission, within a reasonable period of time following the
receipt thereof by the Company); and
(i) in
the
event that, at any time, the number of shares available under the Registration
Statement is insufficient to cover one hundred and twenty-five percent (125%)
of
the Registrable Securities issued or issuable to the Holders under the
Convertible Notes and the Warrants (such number to be determined using the
Conversion Price or Exercise Price, as applicable, in effect at such time and
without regard to any restriction on the ability of any Holder to convert such
Holder’s Convertible Note or exercise such Holder’s Warrant) the Company shall,
subject to Section
2(b),
promptly amend such Registration Statement or file a new registration statement,
in any event as soon as practicable, but not later than the tenth
(10th)
day
following notice from a Holder of the occurrence of such event, so that such
Registration Statement or such new registration statement, or both, covers
no
less than two hundred percent (200%) of the Registrable Securities issued or
issuable to the Holders under the Convertible Notes and the Warrants (such
number to be determined using the Conversion Price or Exercise Price, as
applicable, in effect at the time of such amendment or filing and without regard
to any restriction on the ability of any Holder to convert such Holder’s
Convertible Note or exercise such Holder’s Warrant). The Company shall use its
best efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof. Any Registration
Statement filed pursuant to this Section
3(i)
shall
state that, to the extent permitted by Rule 416 under the Securities Act, such
Registration Statement also covers such indeterminate number of additional
shares of Common Stock as may become issuable under the Convertible Notes and
the Warrants in order to prevent dilution resulting from stock splits, stock
dividends or similar events. Unless and until such amendment or new Registration
Statement becomes effective, each Holder shall have the rights described in
Section
2(d)
of this
Agreement.
4. OBLIGATIONS
OF EACH HOLDER.
In
connection with the registration of Registrable Securities pursuant to a
Registration Statement, each Holder shall:
(a) within
three (3) Business Days after receipt of written request from the Company,
furnish to the Company in writing such information regarding itself and the
intended method of disposition of such Registrable Securities as the Company
shall reasonably request in order to effect the registration thereof;
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(b) upon
receipt of any notice from the Company of the happening of any event of the
kind
described in Sections
3(e) or
3(f)
of
this
Agreement, immediately discontinue any sale or other disposition of such
Registrable Securities pursuant to such Registration Statement until the filing
of an amendment or supplement as described in such Section
3(e) or
withdrawal of the stop order referred to in such Section
3(f),
and use
commercially reasonable efforts to maintain the confidentiality of such notice
and its contents;
(c) to
the
extent required by applicable law, deliver a prospectus to the purchaser of
such
Registrable Securities;
(d) promptly
notify the Company when it has sold all of the Registrable Securities
beneficially owned by it; and
(e) notify
the Company in the event that any information supplied by such Holder in writing
for inclusion in such Registration Statement or related prospectus contains
an
untrue statement of material fact or omits to state a material fact required
to
be stated therein or necessary to make such information not misleading in light
of the circumstances then existing;
(f) immediately
discontinue any sale or other disposition of such Registrable Securities
pursuant to such Registration Statement until the filing of an amendment or
supplement to such prospectus as may be necessary so that such prospectus does
not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; and
(g) as
and
when requested by the Company, promptly complete and return to the Company
a
customary “Selling Shareholder Questionnaire”.
5. INDEMNIFICATION.
In
the
event that any Registrable Securities are included in a Registration Statement
under this Agreement:
(a) the
Company shall indemnify and hold harmless each Holder, the officers, directors,
employees, agents and representatives of such Holder, and each person, if any,
who controls such Holder within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages, liabilities or reasonable
out-of-pocket expenses (whether joint or several) (collectively, including
reasonable legal expenses or other expenses reasonably incurred in connection
with investigating or defending same, “Losses”),
insofar as any such Losses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in such
Registration Statement under which such Registrable Securities were registered,
including any preliminary prospectus or final prospectus contained therein
or
any amendments or supplements thereto, or (ii) the omission or alleged omission
to state therein 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. Subject to the provisions of Section
5(c)
of this
Agreement, the Company will reimburse such Holder, and each such officer,
director, employee, agent, representative or controlling person, for any
reasonable legal expenses or other out-of-pocket expenses (promptly as such
expenses are incurred) by any such entity or person in connection with
investigating or defending any Loss; provided,
however,
that
the foregoing indemnity shall not apply to amounts paid in settlement of any
Loss if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be obligated
to indemnify any person for any Loss to the extent that such Loss arises out
of
or is based upon (i) any omission to state a material fact required to be stated
therein or necessary to make statements therein not misleading that conforms
in
all material respects to written information furnished by such person expressly
for use in such Registration Statement or (ii) a failure of such person to
deliver or cause to be delivered the final prospectus contained in the
Registration Statement and made available by the Company, if such delivery
is
required by applicable law.
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(b) each
Holder who is named in such Registration Statement as a selling shareholder,
acting severally and not jointly, shall indemnify and hold harmless the Company,
the officers, directors, employees, agents and representatives of the Company,
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any Losses insofar as any such
Losses arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact stated therein or any omission to state a material
fact required to be stated therein or necessary to make statements therein
not
misleading that conforms in all material respects to written information
furnished by such person expressly for use in such Registration Statement.
Subject to the provisions of Section
5(c)
of this
Agreement, such Holder will reimburse any reasonable legal or other expenses
(promptly as such expenses are incurred) by the Company and any such officer,
director, employee, agent, representative, or controlling person, in connection
with investigating or defending any such Loss; provided,
however,
that
the foregoing indemnity shall not apply to amounts paid in settlement of any
such Loss if such settlement is effected without the consent of such Holder
(which consent shall not be unreasonably withheld); and provided,
further,
that,
in no event shall any indemnity under this Section
5(b)
exceed
the amount of the net proceeds resulting from the sale of Registrable Securities
by such Holder under such Registration Statement.
(c) Promptly
after receipt by an indemnified party under this Section
5
of
notice of the commencement of any action or proceeding (including any
governmental action or proceeding), such indemnified party will, if a claim
in
respect thereof is to be made against any indemnifying party under this
Section 5,
promptly deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in and
to
assume the defense thereof with counsel selected by the indemnifying party
and
reasonably acceptable to the indemnified party; provided,
however,
that an
indemnified party shall have the right to retain its own counsel, with the
reasonably incurred fees and expenses of such counsel to be paid by the
indemnifying party, if representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate under applicable
standards of professional conduct due to actual or potential conflicting
interests between such indemnified party and any other party represented by
such
counsel in such action or proceeding. The failure by an indemnified party to
notify the indemnifying party within a reasonable time following the
commencement of any action or proceeding of which the indemnified party is
aware, to the extent materially prejudicial to such indemnifying party’s ability
to defend such action, shall relieve such indemnifying party of any liability
to
the indemnified party under this Section
5
with
respect to such action or proceeding, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that
it
may have to any indemnified party otherwise than under this Section
5
or with
respect to any other action or proceeding.
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(d) In
the
event that the indemnity provided in Sections
5(a) or
5(b)
is
unavailable or insufficient to hold harmless an indemnified party for any
reason, the Company and each Holder agree, severally and not jointly, to
contribute to the aggregate Losses to which the Company or such Holder (or
its
respective officers, directors, employees, agents, representatives or
controlling persons), may be subject in such proportion as is appropriate to
reflect the relative fault of the Company and such Holder in connection with
the
statements or omissions which resulted in such Losses; provided,
however,
that in
no case shall such Holder be responsible for any amount in excess of the net
proceeds resulting from the sale of Registrable Securities under the
Registration Statement. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or by such Holder. The Company and each Holder agree that it
would not be just and equitable if contribution were determined by pro
rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this Section
5(d),
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 is not guilty of such fraudulent misrepresentation. For purposes of this
Section
5,
each
person who controls a Holder within the meaning of either the Securities Act
or
the Exchange Act and each officer, director, employee, agent or representative
of such Holder shall have the same rights to contribution as such Holder, and
each person who controls the Company within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of the Company shall have the same rights to contribution as
the
Company, subject in each case to the applicable terms and conditions of this
Section
5(d).
(e) The
obligations of the Company and each Holder under this Section 5
shall
survive the conversion of the Convertible Notes and exercise of the Warrants
in
full, the completion of any offering or sale of Registrable Securities pursuant
to a Registration Statement under this Agreement, or otherwise.
6. REPORTS.
With
a
view to making available to each Holder the benefits of Rule 144 and any other
similar rule or regulation of the Commission that may at any time permit such
Holder to sell securities of the Company to the public without registration,
the
Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Exchange Act; and
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(c) furnish
to such Holder, so long as such Holder owns any Registrable Securities, promptly
upon written request (i) a written statement by the Company, if true, that
it
has complied with the reporting requirements of Rule 144 and the Exchange Act,
(ii) to the extent not publicly available through the Commission’s ▇▇▇▇▇
database, a copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company with the
Commission, and (iii) such other information as may be reasonably requested
by
such Holder in connection with such Holder’s compliance with any rule or
regulation of the Commission which permits the selling of any such securities
without registration.
7. MISCELLANEOUS.
(a) Expenses
of Registration.
Except
as otherwise provided in the Loan Agreement, all reasonable expenses, other
than
underwriting discounts and commissions and fees and expenses of counsel and
other advisors to each Holder, incurred in connection with the registrations,
filings or qualifications described herein, including (without limitation)
all
registration, filing and qualification fees, printers’ and accounting fees, the
fees and disbursements of counsel for the Company, and the fees and
disbursements incurred in connection with the letter described in Section
3(g)
of this
Agreement, shall be borne by the Company.
(b) Amendment;
Waiver.
Except
as
expressly provided herein, neither this Agreement nor any term hereof may be
amended or waived except pursuant to a written instrument executed by the
Company and the Holders of at least two-thirds (2/3) of the Registrable
Securities then held by or issuable to all Holders (without regard to any
restriction on the ability of a Holder to convert such Holder’s Convertible Note
or exercise such Holder’s Warrant).
Any
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given.
(c) Notices.
Any
notice, demand or request required or permitted to be given by the Company
or a
Holder pursuant to the terms of this Agreement shall be in writing and shall
be
deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a Business
Day,
in which case such delivery will be deemed to be made on the next succeeding
Business Day, (ii) on the next Business Day after timely delivery to an
overnight courier and (iii) on the Business Day actually received if deposited
in the U.S. mail (certified or registered mail, return receipt requested,
postage prepaid), addressed as follows:
If
to
the Company:
Manaris
Corporation
▇▇▇
▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn:
▇▇▇▇
▇▇▇▇▇▇, Chief Executive Officer
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
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With
a copy (which
shall not constitute notice) to:
Sichenzia
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇
▇▇▇▇▇▇, Esq.
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
if to
a Holder, to such address for the Holder as provided by such Holder under the
Loan Agreement, or as shall be designated by the Holder in writing to the other
parties hereto in accordance with this Section
7(c).
(d) Assignment.
Upon
the transfer of any Convertible Note, Warrant or Registrable Securities by
a
Holder, the rights of such Holder hereunder with respect to such securities
so
transferred shall be assigned automatically to the transferee thereof, and
such
transferee shall thereupon be deemed to be a “Holder” for purposes of this
Agreement, as long as: (i) the Company is, within a reasonable period of time
following such transfer, furnished with written notice of the name and address
of such transferee, (ii) the transferee agrees in writing with the Company
to be
bound by all of the provisions hereof, and (iii) such transfer is made in
accordance with the applicable law and the requirements of the Loan Agreement,
the Convertible Notes or the Warrants, as applicable.
(e) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall be deemed one and the same instrument.
This Agreement, once executed by a party, may be delivered to any other party
hereto by facsimile transmission.
(f) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed entirely
within the State of New York.
(g) Holder
of Record.
A
person is deemed to be a Holder whenever such person owns or is deemed to own
of
record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons with respect to
the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the record owner of such
Registrable Securities.
(h)
Entire
Agreement.
This
Agreement and the other Transaction Documents constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof,
superseding all prior agreements and understandings, whether written or oral,
between or among the parties hereto.
This
Agreement supersedes and replaces the provisions of Section 7 of the Advisory
Fee Warrant.
(i)
Headings.
The
headings in this Agreement are for convenience only and are not to be considered
in construing or interpreting this Agreement.
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(j)Third
Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
[Signature
Page to Follow]
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IN
WITNESS WHEREOF, the undersigned have executed this Registration Rights
Agreement as of the date first-above written.
MANARIS
CORPORATION
By:
Name:
Title:
IMPERIUM
MASTER FUND, LTD.
By:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
General
Counsel