Registration Rights Agreement - RedRoller Holdings Inc.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of this 13 day of November, 2007 by and between RedRoller
Holdings, Inc. (f/k/a Aslahan Enterprises Ltd.), a Delaware corporation ("Pubco"
or the "Company"), and the parties set forth on the signature pages and Exhibit
A hereto (each, a "Purchaser" and collectively, the "Purchasers").
RECITALS
WHEREAS, on the date hereof, Pubco, RedRoller, Inc., a Delaware
corporation ("RedRoller"), and RedRoller Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Pubco (the "Acquisition Sub"), have
entered into an Agreement and Plan of Merger, pursuant to which Acquisition Sub
has merged with and into RedRoller such that RedRoller is a wholly-owned
subsidiary of Pubco (the "Merger"); and
WHEREAS, to provide the capital required by Pubco for working capital
purposes, Pubco is offering to accredited investors in a private placement
transaction (the "Offering") in compliance with Rule 506 of Regulation D of the
Securities Act of 1933, as amended (the "Securities Act"), up to 2,352,941 units
(each, a "Unit") at a purchase price of $3.40 per Unit (the "Purchase Price"),
each Unit consisting of (i) four shares (the "Shares") of Pubco's common stock,
par value $0.001 per share (the "Common Stock"), and (ii) one warrant in the
form attached as EXHIBIT B hereto exercisable to purchase one share of Common
Stock at a price of $1.70 per share for 60 months after the closing of the
Merger (each, a "Warrant" and together with the Shares, the "Underlying
Securities") upon the terms and conditions and subject to the provisions
hereinafter set forth; and
WHEREAS, each Purchaser, in connection with its intent to purchase
Units in the Offering, has executed and delivered a Subscription Agreement (as
hereinafter defined) and a Confidential Investor Questionnaire (the "Investor
Questionnaire") memorializing such Purchaser's agreement to purchase and the
Company's agreement to sell the number of Units set forth therein at the
Purchase Price, and this Agreement, pursuant to which the Company will provide
certain registration rights related to the Underlying Securities on the terms
set forth herein (the Subscription Agreement, Investor Questionnaire and this
Agreement are collectively referred to as the "Transaction Documents").
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants, and conditions set forth herein, the
parties mutually agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Approved Market" means the NASD Over-The-Counter Bulletin Board, the
Nasdaq National Market, the Nasdaq Capital Market, the New York Stock Exchange,
Inc. or the American Stock Exchange, Inc.
"Pubco" has the meaning set forth in the Recitals of this Agreement.
"Blackout Period" means, with respect to a registration, a period, in each
case commencing on the day immediately after the Company notifies the Purchasers
that they are required, because of the occurrence of an event of the kind
described in Section 4(f) hereof, to suspend offers and sales of Registrable
Securities during which the Company, in the good faith judgment of its board of
directors, determines (because of the existence of, or in anticipation of, any
acquisition, financing activity, or other transaction
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involving the Company, or the unavailability for reasons beyond the Company's
control of any required financial statements, disclosure of information which is
in its best interest not to publicly disclose, or any other event or condition
of similar significance to the Company) that the registration and distribution
of the Registrable Securities to be covered by such registration statement, if
any, would be seriously detrimental to the Company and its stockholders and
ending on the earlier of (1) the date upon which the material non-public
information commencing the Blackout Period is disclosed to the public or ceases
to be material and (2) such time as the Company notifies the selling Holders
that the Company will no longer delay such filing of the Registration Statement,
recommence taking steps to make such Registration Statement effective, or allow
sales pursuant to such Registration Statement to resume; PROVIDED, HOWEVER, that
(a) the Company shall limit its use of Blackout Periods, in the aggregate, to 30
Trading Days in any 12-month period and (b) no Blackout Period may commence
sooner than 60 days after the end of a prior Blackout Period.
"Business Day" means any day of the year, other than a Saturday, Sunday,
or other day on which the Commission is required or authorized to close.
"Closing Date" means the date of the Closing of the Offering, as
determined by Pubco and the Purchasers.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $0.001 per share, of
Pubco and any and all shares of capital stock or other equity securities of: (i)
the Company which are added to or exchanged or substituted for the Common Stock
by reason of the declaration of any stock dividend or stock split, the issuance
of any distribution or the reclassification, readjustment, recapitalization or
other such modification of the capital structure of the Company; and (ii) any
other corporation, now or hereafter organized under the laws of any state or
other governmental authority, with which the Company is merged, which results
from any consolidation or reorganization to which the Company is a party, or to
which is sold all or substantially all of the shares or assets of the Company,
if immediately after such merger, consolidation, reorganization or sale, the
Company or the stockholders of the Company own equity securities having in the
aggregate more than 50% of the total voting power of such other corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Family Member" means (a) with respect to any individual, such
individual's spouse, any descendants (whether natural or adopted), any trust all
of the beneficial interests of which are owned by any of such individuals or by
any of such individuals together with any organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, the estate of any
such individual, and any corporation, association, partnership or limited
liability company all of the equity interests of which are owned by those above
described individuals, trusts or organizations and (b) with respect to any
trust, the owners of the beneficial interests of such trust.
"Holder" means each Purchaser or any of such Purchaser's respective
successors and Permitted Assignees who acquire rights in accordance with this
Agreement with respect to the Registrable Securities directly or indirectly from
a Purchaser or from any Permitted Assignee.
"Investor Questionnaire" has the meaning set forth in the Recitals of this
Agreement.
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"Majority Holders" means at any time Holders representing a majority of
the Registrable Securities.
"Merger" has the meaning set forth in the Recitals of this Agreement.
"Offering" has the meaning set forth in the Recitals of this Agreement.
"Permitted Assignee" means (a) with respect to a partnership, its partners
or former partners in accordance with their partnership interests, (b) with
respect to a corporation, its stockholders in accordance with their interest in
the corporation, (c) with respect to a limited liability company, its members or
former members in accordance with their interest in the limited liability
company, (d) with respect to an individual party, any Family Member of such
party, (e) an entity that is controlled by, controls, or is under common control
with a transferor or (f) a party to this Agreement.
"Piggyback Registration" means, in any registration of Common Stock as set
forth in Section 3(b) hereof, the ability of holders of Common Stock to include
Registrable Securities in such registration.
"Pubco" has the meaning set forth in the Recitals of this Agreement.
"Purchase Price" means the Purchase Price per Share set forth in the
Subscription Agreement.
"Purchased Securities" has the meaning set forth in the Recitals of this
Agreement.
"RedRoller" has the meaning set forth in the Recitals of this Agreement.
The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" means the Shares, the shares of Common Stock
issued or issuable from time to time upon the exercise of the Warrants, and the
shares of Common Stock issued or issuable from time to time upon the exercise of
the warrants issued to the placement agent for the Offering, as well as (i) any
additional shares of Common Stock issuable in connection with the anti-dilution
provisions of the Warrants (in each case, without giving to any limitations on
exercise set forth in the Warrants) and (ii) any securities issued or issuable
upon any stock split, dividend or other distribution, recapitalization or
similar event with respect to the foregoing.
"Registration Default Date" means the date that is 120 days following the
Registration Filing Date or 150 days following the Registration Filing Date in
the event that the Registration Statement is reviewed by the Commission.
"Registration Default Period" means the period following the Registration
Default Date during which any Registration Event occurs and is continuing.
"Registration Event" means the occurrence of any of the following events:
(a) the Company fails to file with the Commission the Registration
Statement on or before the Registration Filing Date;
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(b) after the SEC Effective Date, sales cannot be made pursuant to
the Registration Statement for any reason (including without limitation by
reason of a stop order, or the Company's failure to update the Registration
Statement) except as excused pursuant to Section 3(a) hereof; or
(c) the Common Stock generally or the Registrable Securities
specifically are not listed or included for quotation on an Approved Market, or
trading of the Common Stock is suspended or halted on the Approved Market, which
at the time constitutes the principal market for the Common Stock, for more than
two full, consecutive Trading Days; PROVIDED, HOWEVER, a Registration Event
shall not be deemed to occur if all or substantially all trading in equity
securities (including the Common Stock) is suspended or halted on the Approved
Market for any length of time.
"Registration Filing Date" means the date that is 60 days after the
closing of the Merger.
"Registration Statement" means the registration statement that the Company
is required to file pursuant to this Agreement to register the Registrable
Securities.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute promulgated in replacement thereof, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at
the time.
"SEC Effective Date" means the date the Registration Statement is declared
effective by the Commission.
"Shares" has the meaning set forth in the Recitals of this Agreement.
"Subscription Agreement" means each of the subscriptiona dated as of the
date hereof by and between Pubco and each of the Purchasers setting forth the
terms and conditions of the Offering.
"Trading Day" means any day on which the national securities exchange, the
Nasdaq Stock Market, the NASD Over the Counter Bulletin Board or such other
securities market or quotation system, which at the time constitutes the
principal securities market for the Common Stock, is open for general trading of
securities.
"Transaction Documents" has the meaning set forth in the Recitals of this
Agreement.
"Unit" has the meaning set forth in the Recitals of this Agreement.
2. TERM. This Agreement shall continue in full force and effect for a
period of two (2) years from the Effective Date, unless terminated sooner
hereunder.
3. REGISTRATION.
(A) REGISTRATION ON FORM SB-2. Not later than the Registration
Filing Date, the Company shall file with the Commission a registration statement
on Form SB-2, or other applicable form, relating to the resale by the Holders of
all of the Registrable Securities, and the Company shall use its commercially
reasonable best efforts to cause such registration statement to be declared
effective prior to the Registration Default Date; PROVIDED, HOWEVER, that the
Company shall not be obligated to effect any such registration, qualification,
or compliance pursuant to this Section, or keep such registration effective
pursuant to the terms hereunder: (i) in any particular jurisdiction in which the
Company would be
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required to qualify to do business as a foreign corporation or as a dealer in
securities under the securities or blue sky laws of such jurisdiction or to
execute a general consent to service of process in effecting such registration,
qualification or compliance, in each case where it has not already done so or
(ii) during any Blackout Period, in which case the Registration Filing Date
shall be extended to the date immediately following the last day of such
Blackout Period.
(B) PIGGYBACK REGISTRATION. If the Company shall determine to
register for sale for cash any of its Common Stock, for its own account or for
the account of others (other than the Holders), other than (i) a registration
relating solely to employee benefit plans or securities issued or issuable to
employees, consultants (to the extent the securities owned or to be owned by
such consultants could be registered on Form S-8) or any of their Family Members
(including a registration on Form S-8) or (ii) a registration relating solely to
a Commission Rule 145 transaction, a registration on Form S-4 in connection with
a merger, acquisition, divestiture, reorganization, or similar event, the
Company shall promptly give to the Holders written notice thereof (and in no
event shall such notice be given less than 20 calendar days prior to the filing
of such registration statement), and shall, subject to Section 3(c) hereof,
include as a Piggyback Registration all of the Registrable Securities specified
in a written request delivered by the Holder within 10 calendar days after
receipt of such written notice from the Company. However, the Company may,
without the consent of the Holders, withdraw such registration statement prior
to its becoming effective if the Company or such other stockholders have elected
to abandon the proposal to register the securities proposed to be registered
thereby.
(C) UNDERWRITING. If a Piggyback Registration is for a registered
public offering involving an underwriting, the Company shall so advise the
Holders. In such event, the right of any Holder to Piggyback Registration shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to include the Registrable
Securities they hold through such underwriting shall (together with the Company
and any other stockholders of the Company selling their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter selected for such underwriting by the Company or the selling
stockholders, as applicable. Notwithstanding any other provision of this
Section, if the underwriter or the Company determines that marketing factors
require a limitation of the number of shares of Common Stock or the amount of
other securities to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders (except those Holders who failed to timely elect to
include their Registrable Securities through such underwriting or have indicated
to the Company their decision not to do so), and indicate to each such Holder
the number of shares of Registrable Securities that may be included in the
registration and underwriting, if any. The number of shares of Registrable
Securities to be included in such registration and underwriting shall be
allocated among such Holders as follows:
(i) In the event of a Piggyback Registration that is initiated
by the Company, the number of shares that may be included in the registration
and underwriting shall be allocated first to the Company and then, subject to
obligations and commitments existing as of the date hereof, to all selling
stockholders, including the Holders, who have requested to sell in the
registration on a pro rata basis according to the number of shares requested to
be included; and
(ii) In the event of a Piggyback Registration that is
initiated by the exercise of demand registration rights by a stockholder or
stockholders of the Company (other than the Holders), then the number of shares
that may be included in the registration and underwriting shall be allocated
first to such selling stockholders who exercised such demand and then, subject
to obligations and commitments existing as of the date hereof, to all other
selling stockholders, including the Holders, who have requested to sell in the
registration, on a pro rata basis according to the number of shares requested to
be included.
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No Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
any Holder disapproves of the terms of any such underwriting, such Holder may
elect to withdraw their Registrable Securities therefrom by delivery of written
notice to the Company and the underwriter. The Registrable Securities so
withdrawn from such underwriting shall also be withdrawn from such registration;
PROVIDED, HOWEVER, that, if by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Holders may be included
in such registration (up to the maximum of any limitation imposed by the
underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities pursuant to the terms and limitations set forth herein in
the same proportion used above in determining the underwriter limitation.
(D) OTHER REGISTRATIONS. Prior to the SEC Effective Date, the
Company will not, without the prior written consent of the Majority Holders,
file or request the acceleration of any other registration statement filed with
the Commission, and during any time subsequent to the SEC Effective Date when
the Registration Statement for any reason is not available for use by any Holder
for the resale of any Registrable Securities, the Company shall not, without the
prior written consent of the Majority Holders, file any other registration
statement or any amendment thereto with the Commission under the Securities Act
or request the acceleration of the effectiveness of any other registration
statement previously filed with the Commission, other than (i) any registration
statement on Form S-8 or Form S-4 and (ii) any registration statement or
amendment which the Company is required to file or as to which the Company is
required to request acceleration pursuant to any obligation in effect on the
date of execution and delivery of this Agreement.
(E) OCCURRENCE OF REGISTRATION EVENT. If a Registration Event
occurs, then the Company will make payments to each Purchaser (a "Qualified
Purchaser"), as partial liquidated damages for the minimum amount of damages to
the Qualified Purchaser by reason thereof, and not as a penalty, at a rate equal
to 1% of the Purchase Price per share of Registrable Securities then held by a
Qualified Purchaser, for each calendar month of the Registration Default Period
(pro rated for any period less than 30 days), up to a maximum, together with all
payments made by the Company to such Purchaser pursuant to this Section 3(e), of
10% of the total purchase price of the Units purchased by such Purchaser;
PROVIDED, HOWEVER, if a Registration Event occurs (or is continuing) on a date
more than one-year after the Qualified Purchaser acquired the Registrable
Securities (and thus the one-year holding period under Rule 144(d) has elapsed),
liquidated damages shall be paid only with respect to that portion of the
Qualified Purchaser's Registrable Securities that cannot then be immediately
resold in reliance on Rule 144. Each such payment shall be due and payable
within ten days after the end of each calendar month of the Registration Default
Period until the termination of the Registration Default Period and within ten
days after such termination. Such payments shall constitute the Qualified
Purchaser's exclusive remedy for such events. The Registration Default Period
shall terminate upon (i) the filing of the Registration Statement in the case of
clause (a) of the definition of Registration Event, (ii) the SEC Effective Date
in the case of clause (b) of the definition of Registration Event, (iii) the
ability of the Qualified Purchaser to effect sales pursuant to the Registration
Statement in the case of clause (c) of the definition of Registration Event,
(iv) the listing or inclusion and/or trading of the Common Stock on an Approved
Market, as the case may be, in the case of clause (d) of the definition of
Registration Event, and (v) in the case of the events described in clauses (b)
and (c) of the definition of Registration Event, the earlier termination of the
Registration Default Period. The amounts payable as partial liquidated damages
pursuant to this paragraph shall be payable (i) in lawful money of the United
States or, (ii) at the Company's sole election, in shares of Common Stock, which
such shares shall be issued at the then current market price at the time payment
becomes due. Amounts payable as liquidated damages to each Qualified Purchaser
hereunder with respect to each share of Registrable Securities shall cease when
the Qualified Purchaser no longer holds such shares of
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Registrable Securities or such shares of Registrable Securities can be
immediately sold by the Qualified Purchaser in reliance on Rule 144(k).
4. REGISTRATION PROCEDURES. The Company will keep each Holder reasonably
advised as to the filing and effectiveness of the Registration Statement. At its
expense with respect to the Registration Statement, the Company will:
(A) prepare and file with the Commission with respect to the
Registrable Securities, a registration statement on Form SB-2, or any other form
for which the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its commercially reasonable efforts to cause such registration statement to
become and remain effective at for a period of two years or for such shorter
period ending on the earlier to occur of (i) the sale of all Registrable
Securities and (ii) the availability under Rule 144(k) for the Holder to sell
the Registrable Securities (in either case, the "Effectiveness Period");
(B) if a registration statement is subject to review by the
Commission, promptly respond to all comments and diligently pursue resolution of
any comments to the satisfaction of the Commission;
(C) prepare and file with the Commission 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
during the Effectiveness Period;
(D) furnish, without charge, to each Holder of Registrable
Securities covered by such registration statement (i) a reasonable number of
copies of such registration statement (including any exhibits thereto other than
exhibits incorporated by reference), each amendment and supplement thereto as
such Holder may reasonably request, (ii) such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and any other prospectus filed under Rule 424 under the Securities Act) as such
Holders may reasonably request, in conformity with the requirements of the
Securities Act, and (iii) such other documents as such Holder may require to
consummate the disposition of the Registrable Securities owned by such Holder,
but only during the Effectiveness Period;
(E) use its commercially reasonable best efforts to register or
qualify such registration under such other applicable securities or blue sky
laws of such jurisdictions as any Holder of Registrable Securities covered by
such registration statement reasonably requests and as may be necessary for the
marketability of the Registrable Securities (such request to be made by the time
the applicable registration statement is deemed effective by the Commission) and
do any and all other acts and things necessary to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Holder; PROVIDED, HOWEVER, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction;
(F) as promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Securities, the disposition of which requires
delivery of a prospectus relating thereto under the Securities Act, of the
happening of any event, which comes to the Company's attention, that will after
the occurrence of such event cause the prospectus included in such registration
statement, if not amended or supplemented, to contain an untrue statement of a
material fact or an omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and the
Company shall promptly thereafter prepare and furnish to such Holder a
supplement or amendment to such prospectus (or prepare and file appropriate
reports under the Exchange Act) so that, as thereafter delivered
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to the purchasers of such Registrable Securities, such prospectus shall not
contain an 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
not misleading, unless suspension of the use of such prospectus otherwise is
authorized herein or in the event of a Blackout Period, in which case no
supplement or amendment need be furnished (or Exchange Act filing made) until
the termination of such suspension or Blackout Period;
(G) comply, and continue to comply during the Effectiveness Period,
in all material respects with the Securities Act and the Exchange Act and with
all applicable rules and regulations of the Commission with respect to the
disposition of all securities covered by such registration statement;
(H) as promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Securities being offered or sold pursuant to
the Registration Statement of the issuance by the Commission of any stop order
or other suspension of effectiveness of the Registration Statement;
(I) use its best efforts to cause all the Registrable Securities
covered by the Registration Statement to be quoted on the NASD OTC Bulletin
Board or such other principal securities market on which securities of the same
class or series issued by the Company are then listed or traded;
(J) provide a transfer agent and registrar, which may be a single
entity, for the shares of Common Stock at all times;
(K) cooperate with the Holders of Registrable Securities being
offered pursuant to the Registration Statement to issue and deliver, or cause
its transfer agent to issue and deliver, certificates representing Registrable
Securities to be offered pursuant to the Registration Statement within a
reasonable time after the delivery of certificates representing the Registrable
Securities to the transfer agent or the Company, as applicable, and enable such
certificates to be in such denominations or amounts as the Holders may
reasonably request and registered in such names as the Holders may request;
(L) during the Effectiveness Period, refrain from bidding for or
purchasing any Common Stock or any right to purchase Common Stock or attempting
to induce any person to purchase any such security or right if such bid,
purchase or attempt would in any way limit the right of the Holders to sell
Registrable Securities by reason of the limitations set forth in Regulation M
under the Exchange Act; and
(M) take all other reasonable actions necessary to expedite and
facilitate the disposition by the Holders of the Registrable Securities pursuant
to the Registration Statement.
5. SUSPENSION OF OFFERS AND SALES. Each Holder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4(f) hereof or of the commencement of an Blackout Period,
such Holder shall discontinue the disposition of Registrable Securities included
in the Registration Statement until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4(f) hereof or notice
of the end of the Blackout Period, and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company's expense) all copies
(including, without limitation, any and all drafts), other than permanent file
copies, then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
6. REGISTRATION EXPENSES. The Company shall pay all expenses in connection
with any registration obligation provided herein, including, without limitation,
all registration, filing, stock exchange fees, printing expenses, all fees and
expenses of complying with securities or blue sky laws, and the fees and
disbursements of counsel for the Company and of its independent accountants;
provided that, in any underwritten registration, each party shall pay for its
own underwriting discounts and commissions and
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transfer taxes. Except as provided in this Section and Section 9 hereof, the
Company shall not be responsible for the expenses of any attorney or other
advisor employed by a Holder.
7. ASSIGNMENT OF RIGHTS. No Holder may assign its rights under this
Agreement to any party without the prior written consent of the Company;
PROVIDED, HOWEVER, that a Holder may assign its rights under this Agreement
without such consent to a Permitted Assignee as long as (a) such transfer or
assignment is effected in accordance with applicable securities laws; (b) such
transferee or assignee agrees in writing to become subject to the terms of this
Agreement; and (c) the Company is given written notice by such Holder of such
transfer or assignment, stating the name and address of the transferee or
assignee and identifying the Registrable Securities with respect to which such
rights are being transferred or assigned.
8. INFORMATION BY HOLDER. Holders included in any registration shall
furnish to the Company such information as the Company may reasonably request in
writing regarding such Holders and the distribution proposed by such Holders.
9. INDEMNIFICATION.
(A) In the event of the offer and sale of Registrable Securities
under the Securities Act, the Company shall, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, each Holder, its directors,
officers, partners, each other person who participates as an underwriter in the
offering or sale of such securities, and each other person, if any, who controls
or is under common control with such Holder or any such underwriter within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities, joint or several, and expenses to which the Holder or any such
director, officer, partner or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement of any material fact contained in any registration statement prepared
and filed by the Company under which shares of Registrable Securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission to state therein a material fact required to
be stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company shall
reimburse the Holder, and each such director, officer, partner, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating, defending or settling any such loss,
claim, damage, liability, action or proceeding; provided that the Company shall
not be liable in any such case (i) to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement in or omission from such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by or on behalf of such Holder specifically stating that it is for use
in the preparation thereof or (ii) if the person asserting any such loss, claim,
damage, liability (or action or proceeding in respect thereof) who purchased the
Registrable Securities that are the subject thereof did not receive a copy of an
amended preliminary prospectus or the final prospectus (or the final prospectus
as amended or supplemented) at or prior to the written confirmation of the sale
of such Registrable Securities to such person because of the failure of such
Holder or underwriter to so provide such amended preliminary or final prospectus
and the untrue statement or omission of a material fact made in such preliminary
prospectus was corrected in the amended preliminary or final prospectus (or the
final prospectus as amended or supplemented). Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Holders, or any such director, officer, partner, underwriter or controlling
person and shall survive the transfer of such shares by the Holder.
<PAGE>
(B) As a condition to including Registrable Securities in any
registration statement filed pursuant to this Agreement, each Holder agrees to
be bound by the terms of this Section 9 and to indemnify and hold harmless, to
the fullest extent permitted by law, the Company, its directors and officers,
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such director or
officer or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) that arises
out of or is based upon an untrue statement in or omission from such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Holder through an instrument duly
executed by or on behalf of the Company specifically stating that it is for use
in the preparation thereof, and such Holder shall reimburse the Company, and
each such director, officer, and controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating,
defending, or settling and such loss, claim, damage, liability, action, or
proceeding; PROVIDED, HOWEVER, that such indemnity agreement found in this
Section 9 shall in no event exceed the gross proceeds from the offering received
by such Holder. Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer by any Holder of
such shares.
(C) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in this
Section (including any governmental action), such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the indemnifying party of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section, except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought against an
indemnified party, unless in the reasonable judgment of counsel to such
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist or the indemnified party may have defenses not
available to the indemnifying party in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of the
defenses thereof or the indemnifying party fails to defend such claim in a
diligent manner, other than reasonable costs of investigation. Neither an
indemnified nor an indemnifying party shall be liable for any settlement of any
action or proceeding effected without its consent. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement, which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect of such claim or litigation.
Notwithstanding anything to the contrary set forth herein, and without limiting
any of the rights set forth above, in any event any party shall have the right
to retain, at its own expense, counsel with respect to the defense of a claim.
(D) In the event that an indemnifying party does or is not permitted
to assume the defense of an action pursuant to Section 9(c) hereof or in the
case of the expense reimbursement obligation set forth in Sections 9(a) and (b)
hereof, the indemnification required by Sections 9(a) and (b) hereof shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills received or expenses, losses,
damages, or liabilities are incurred.
<PAGE>
(E) If the indemnification provided for in this Section is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall (i) contribute to the amount paid or payable by such indemnified party as
a result of such loss, liability, claim, damage or expense as is appropriate to
reflect the proportionate relative fault of the indemnifying party on the one
hand and the indemnified party on the other (determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission), or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, not only the proportionate relative
fault of the indemnifying party and the indemnified party, but also the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other, as well as any other relevant equitable considerations. No
indemnified party guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
(F) OTHER INDEMNIFICATION. Indemnification similar to that specified
in this Section (with appropriate modifications) shall be given by the Company
and each Holder of Registrable Securities with respect to any required
registration or other qualification of securities under any federal or state law
or regulation or governmental authority other than the Securities Act.
10. RULE 144. For a period of at least 24 months following the Closing
Date, the Company will use its commercially reasonable best efforts to timely
file all reports required to be filed by the Company after the date hereof under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder, and if the Company is not required to file reports
pursuant to such sections, it will prepare and furnish to the Purchasers and
make publicly available in accordance with Rule 144(c) such information as is
required for the Purchasers to sell shares of Common Stock under Rule 144.
11. INDEPENDENT NATURE OF EACH PURCHASER'S OBLIGATIONS AND RIGHTS. The
obligations of each Purchaser under this Agreement are several and not joint
with the obligations of any other Purchaser, and each Purchaser shall not be
responsible in any way for the performance of the obligations of any other
Purchaser under this Agreement. Nothing contained herein and no action taken by
any Purchaser pursuant hereto, shall be deemed to constitute such Purchasers as
a partnership, an association, a joint venture, or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by
this Agreement. Each Purchaser shall be entitled to independently protect and
enforce its rights, including without limitation the rights arising out of this
Agreement, and it shall not be necessary for any other Purchaser to be joined as
an additional party in any proceeding for such purpose.
12. MISCELLANEOUS.
(A) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York and the United States of
America, both substantive and remedial, without regard to New York conflicts of
law principles. Any judicial proceeding brought against either of the parties to
this agreement or any dispute arising out of this Agreement or any matter
related hereto shall be brought in the courts of the Commonwealth of
Massachusetts, Suffolk County, or in the United States District Court for the
District of Massachusetts and, by its execution and delivery of this agreement,
each party to this Agreement accepts the jurisdiction of such courts. The
foregoing consent to jurisdiction shall not be deemed to confer rights on any
person other than the parties to this Agreement.
<PAGE>
(B) SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, Permitted Assignees, executors and administrators of the parties
hereto. In the event the Company merges with, or is otherwise acquired by, a
direct or indirect subsidiary of a publicly traded company, the Company shall
condition the merger or acquisition on the assumption by such parent company of
the Company's obligations under this Agreement.
(C) ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof.
(D) NOTICES, ETC. All notices or other communications which are
required or permitted under this Agreement shall be in writing and sufficient if
delivered by hand, by facsimile transmission, by registered or certified mail,
postage pre-paid, by electronic mail, or by courier or overnight carrier, to the
persons at the addresses set forth below (or at such other address as may be
provided hereunder), and shall be deemed to have been delivered as of the date
so delivered:
if to the Company to:
RedRoller Holdings, Inc.
Soundview Plaza
1266 East Main Street, 2nd Floor
Stamford, CT 06902-3546
Attention: President
Telephone No.: 203-852-1000
Facsimile No.: 203-327-9777
With a copy to:
DLA Piper US LLP
33 Arch Street, 26th Floor
Boston, MA 02116
Attention: Francis J. Feeney, Jr., Esq.
Telephone No.: 617-406-6063
Facsimile No.: 617-406-6163
if to the Purchasers:
To each Purchaser at the address set forth on Exhibit A
hereto.
or at such other address as any party shall have furnished to the other parties
in writing.
(E) DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement, shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereunder occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any Holder of any breach or default under this Agreement, or any
waiver on the part of any Holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only
<PAGE>
to the extent specifically set forth in such writing. All remedies, either under
this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
(F) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of the
party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature page were an original thereof.
(G) SEVERABILITY. In the case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
(H) AMENDMENTS. The provisions of this Agreement may be amended at
any time and from time to time, and particular provisions of this Agreement may
be waived, with and only with an agreement or consent in writing signed by the
Company and the Majority Holders. The Purchasers acknowledge that by the
operation of this Section, the Majority Holders may have the right and power to
diminish or eliminate all rights of the Purchasers under this Agreement.
(I) LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Majority Holders, enter into any agreement with any holder or prospective holder
of any securities of the Company that would grant such holder registration
rights senior to those granted to the Holders hereunder.
[SIGNATURE PAGES FOLLOW]
<PAGE>
IT WITNESS WHEREOF, this Registration Rights Agreement is hereby
executed as of the date first above written.
COMPANY:
REDROLLER HOLDINGS, INC.
By: /s/ William Van Wyck
------------------------------------
Name: William Van Wyck
Its: President and Chief Executive
Officer
[SIGNATURE PAGE OF PURCHASERS FOLLOWS]
<PAGE>
IT WITNESS WHEREOF, this Registration Rights Agreement is hereby
executed as of the date first above written.
PURCHASER:
-------------------------
(PRINT NAME)
By: _____________________________
Name:
Its:
<PAGE>
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
------------------------------------------
PURCHASERS
Purchaser Name Purchaser Address Number of Shares
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