EXHIBIT 4.13.5
EPXR REGISTRATION RIGHTS AGREEMENT
This EPXR Registration Rights Agreement (this "Agreement") is made and
entered into as of April 29, 2005, by and between Epixtar Corp., a Florida
corporation (the "Company"), and Laurus Master Fund, Ltd. (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser, Voxx Corporation, a
Florida corporation, and the Company (as amended, modified or supplemented from
time to time, the "Securities Purchase Agreement"), and pursuant to the Note
referred to therein.
The Company and the Purchaser hereby agree as follows:
1.33. Definitions. Capitalized terms used and not otherwise defined
herein that are defined in the Securities Purchase Agreement shall have the
meanings given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $0.001 per share.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than one
hundred twenty (120) days following the date hereof and (ii) with respect to
each additional Registration Statement required to be filed hereunder, a date no
later than thirty (30) days following the applicable Filing Date.
"Effectiveness Period" shall have the meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Filing Date" means, with respect to (i) the Registration
Statement required to be filed hereunder in respect of the shares of Common
Stock issuable upon conversion of the Note, a date no later than thirty (30)
days following the date hereof, and (ii) the shares of Common Stock issuable to
the Holder as a result of adjustments to the Fixed Conversion Price made
pursuant to Section 3.4 of the Note or otherwise, thirty (30) days after the
occurrence such event or the date of the adjustment of the Fixed Conversion
Price or Exercise Price, as the case may be.
"Holder" or "Holders" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Note" has the meaning set forth in the Securities Purchase
Agreement.
"Proceeding" means an arbitration, action, claim, suit,
investigation or proceeding (including, without limitation, an investigation or
partial proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock
issued upon the conversion of the Note.
"Registration Statement" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute.
"Securities Purchase Agreement" has the meaning given to such
term in the Preamble hereto.
"Trading Market" means any of the NASD OTCBB, NASDAQ SmallCap
Market, the Nasdaq National Market, the American Stock Exchange or the New York
Stock Exchange.
2.34. Registration.
(a)34.1 On or prior to the Filing Date the Company shall
prepare and file with the Commission a Registration Statement covering
the Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415. The Registration Statement shall be on Form
S-1 or SB-2 (except if the Company is not then eligible to register for
resale the Registrable Securities on Form S-1 or SB-2, in which case
such registration shall be on another appropriate form in accordance
herewith). The Company shall cause the Registration Statement to become
effective and remain effective as provided herein. The Company shall
use its reasonable commercial efforts to cause the Registration
Statement to be declared effective under the Securities Act as promptly
as possible after the filing thereof, but in any event no later than
the Effectiveness Date. The Company shall use its reasonable commercial
efforts to keep the Registration Statement continuously effective under
the Securities Act until the date which is the earlier date of when (i)
all Registrable Securities have been sold or (ii) all Registrable
Securities may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule 144(k),
as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the
Company's transfer agent and the affected Holders (the "Effectiveness
Period").
(b)34.2 If: (i) the Registration Statement is not filed on or
prior to the Filing Date; (ii) the Registration Statement is not
declared effective by the Commission by the Effectiveness Date; (iii)
after the Registration Statement is filed with and declared effective
by the Commission, the Registration Statement ceases to be effective
(by suspension or otherwise) as to all Registrable Securities to which
it is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an
additional registration statement filed and declared effective) for a
period of time which shall exceed 30 days in the aggregate per year or
more than 20 consecutive calendar days (defined as a period of 365 days
commencing on the date the Registration Statement is declared
effective); or (iv) the Common Stock is not listed or quoted, or is
suspended from trading on any Trading Market for a period of three (3)
consecutive Trading Days (provided the Company shall not have been able
to cure such trading suspension within 30 days of the notice thereof or
list the Common Stock on another Trading Market); (any such failure or
breach being referred to as an "Event," and for purposes of clause (i)
or (ii) the date on which such Event occurs, or for purposes of clause
(iii) the date which such 30 day or 20 consecutive day period (as the
case may be) is exceeded, or for purposes of clause (iv) the date on
which such three (3) Trading Day period is exceeded, being referred to
as "Event Date"), then until the applicable Event is cured, the Company
shall pay to each Holder an amount in cash, as liquidated damages and
not as a penalty, equal to 2.0% for each thirty (30) day period
(prorated for partial periods) on a daily basis of the original
principal amount of the Note. While such Event continues, such
liquidated damages shall be paid not less often than each thirty (30)
days. Any unpaid liquidated damages as of the date when an Event has
been cured by the Company shall be paid within three (3) days following
the date on which such Event has been cured by the Company.
(c) Within three business days of the Effectiveness Date, the
Company shall cause its counsel to issue a blanket opinion in the form
attached hereto as Exhibit A, to the transfer agent stating that the
shares are subject to an effective registration statement and can be
reissued free of restrictive legend upon notice of a sale by the
Purchaser and confirmation by the Purchaser that it has complied with
the prospectus delivery requirements, provided that the Company has not
advised the transfer agent orally or in writing that the opinion has
been withdrawn. Copies of the blanket opinion required by this Section
2(c) shall be delivered to the Purchaser within the time frame set
forth above.
3.35. Registration Procedures. If and whenever the Company is required
by the provisions hereof to effect the registration of any Registrable
Securities under the Securities Act, the Company will, as expeditiously as
possible:
(a)35.1 prepare and file with the Commission the Registration
Statement with respect to such Registrable Securities, respond as
promptly as possible to any comments received from the Commission, and
use its best efforts to cause the Registration Statement to become and
remain effective for the Effectiveness Period with respect thereto, and
promptly provide to the Purchaser copies of all filings and Commission
letters of comment relating thereto;
(b)35.2 prepare and file with the Commission such amendments
and supplements to the Registration Statement and the Prospectus used
in connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement and to
keep such Registration Statement effective until the expiration of the
Effectiveness Period;
(c)35.3 furnish to the Purchaser such number of copies of the
Registration Statement and the Prospectus included therein (including
each preliminary Prospectus) as the Purchaser reasonably may request to
facilitate the public sale or disposition of the Registrable Securities
covered by the Registration Statement;
(d)35.4 use its commercially reasonable efforts to register or
qualify the Purchaser's Registrable Securities covered by the
Registration Statement under the securities or "blue sky" laws of such
jurisdictions within the United States as the Purchaser may reasonably
request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or
to consent to general service of process in any such jurisdiction;
(e)35.5 list the Registrable Securities covered by the
Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f)35.6 immediately notify the Purchaser at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits 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)35.7 make available for inspection by the Purchaser and any
attorney, accountant or other agent retained by the Purchaser, all
publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Purchaser.
4.36. Registration Expenses. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including reasonable counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders (to the extent such counsel is required due to Company's
failure to meet any of its obligations hereunder), are called "Registration
Expenses". All selling commissions applicable to the sale of Registrable
Securities, including any fees and disbursements of any special counsel to the
Holders beyond those included in Registration Expenses, are called "Selling
Expenses." The Company shall only be responsible for all Registration Expenses.
5.37. Indemnification.
(a)37.1 In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the Purchaser, and its
officers, directors and each other person, if any, who controls the
Purchaser within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which the
Purchaser, or such persons may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary Prospectus or final Prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Purchaser, and each such
person for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished by or on behalf of the
Purchaser or any such person in writing specifically for use in any
such document.
(b)37.2 In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, the
Purchaser will indemnify and hold harmless the Company, and its
officers, directors and each other person, if any, who controls the
Company within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company
or such persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact which was
furnished in writing by the Purchaser to the Company expressly for use
in (and such information is contained in) the Registration Statement
under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse the Company and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and only
to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information
furnished in writing to the Company by or on behalf of the Purchaser
specifically for use in any such document. Notwithstanding the
provisions of this paragraph, the Purchaser shall not be required to
indemnify any person or entity in excess of the amount of the aggregate
net proceeds received by the Purchaser in respect of Registrable
Securities in connection with any such registration under the
Securities Act.
(c)37.3 Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an "Indemnifying
Party"), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to such Indemnified Party other than
under this Section 5(c) and shall only relieve it from any liability
which it may have to such Indemnified Party under this Section 5(c) if
and to the extent the Indemnifying Party is prejudiced by such
omission. In case any such action shall be brought against any
Indemnified Party and it shall notify the Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such
Indemnified Party, and, after notice from the Indemnifying Party to
such Indemnified Party of its election so to assume and undertake the
defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party under this Section 5(c) for any legal expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof; if the Indemnified Party retains its own counsel, then
the Indemnified Party shall pay all fees, costs and expenses of such
counsel, provided, however, that, if the defendants in any such action
include both the indemnified party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or
additional to those available to the Indemnifying Party or if the
interests of the Indemnified Party reasonably may be deemed to conflict
with the interests of the Indemnifying Party, the Indemnified Party
shall have the right to select one separate counsel and to assume such
legal defenses and otherwise to participate in the defense of such
action, with the reasonable expenses and fees of such separate counsel
and other expenses related to such participation to be reimbursed by
the Indemnifying Party as incurred.
(d)37.4 In order to provide for just and equitable
contribution in the event of joint liability under the Securities Act
in any case in which either (i) the Purchaser, or any officer, director
or controlling person of the Purchaser, makes a claim for
indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not
be enforced in such case notwithstanding the fact that this Section 5
provides for indemnification in such case, or (ii) contribution under
the Securities Act may be required on the part of the Purchaser or such
officer, director or controlling person of the Purchaser in
circumstances for which indemnification is provided under this Section
5; then, and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such
proportion so that the Purchaser is responsible only for the portion
represented by the percentage that the public offering price of its
securities offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration
Statement, provided, however, that, in any such case, (A) the Purchaser
will not be required to contribute any amount in excess of the public
offering price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of
the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6.38. Representations, Warranties and Covenants.
(a)38.1 The Common Stock of the Company is registered pursuant
to Section 12(b) or 12(g) of the Exchange Act and, except with respect
to certain matters which the Company has disclosed to the Purchaser on
Schedule 4.21 to the Securities Purchase Agreement, the Company has
timely filed all proxy statements, reports, schedules, forms,
statements and other documents required to be filed by it under the
Exchange Act. The Company has filed (i) its Annual Report on Form 10-K
for its fiscal year ended December 31, 2004 and (ii) its Quarterly
Report on Form 10-Q for its fiscal quarter ended September 30, 2004,
and (iii) the Form 8-K filings which it has made during the fiscal year
2005 to date (collectively, the "SEC Reports"). Each SEC Report was, at
the time of its filing, in substantial compliance with the requirements
of its respective form and none of the SEC Reports, nor the financial
statements (and the notes thereto) included in the SEC Reports, as of
their respective filing dates, contained any untrue statement of a
material fact or omitted 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. The financial
statements of the Company included in the SEC Reports comply as to form
in all material respects with applicable accounting requirements and
the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of
unaudited interim statements, to the extent they may not include
footnotes or may be condensed) and fairly present in all material
respects the financial condition, the results of operations and the
cash flows of the Company and its subsidiaries, on a consolidated
basis, as of, and for, the periods presented in each such SEC Report.
(b)38.2 The Common Stock is traded on the NASD OTCBB and
satisfies all requirements for the continuation of such trading. The
Company has not received any notice that its Common Stock will not be
eligible to be traded on the NASD OTCBB (except for prior notices which
have been fully remedied) or that the Common Stock does not meet all
requirements for the continuation of such trading.
(c)38.3 Neither the Company, nor any of its affiliates, nor
any person acting on its or their behalf, has directly or indirectly
made any offers or sales of any security or solicited any offers to buy
any security under circumstances that would cause the offering of the
Securities pursuant to the Securities Purchase Agreement to be
integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from selling the Common
Stock pursuant to Rule 506 under the Securities Act, or any applicable
exchange-related stockholder approval provisions, nor will the Company
or any of its affiliates or subsidiaries take any action or steps that
would cause the offering of the Securities to be integrated with other
offerings.
(d)38.4 The Note and the shares of Common Stock which the
Purchaser may acquire pursuant to the Note are all restricted
securities under the Securities Act as of the date of this Agreement.
The Company will not issue any stop transfer order or other order
impeding the sale and delivery of any of the Registrable Securities at
such time as such Registrable Securities are registered for public sale
or an exemption from registration is available, except as required by
federal or state securities laws or as otherwise permitted by this
Agreement, the Purchase Agreement or any Related Agreement.
(e)38.5 The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Note and recognizes that
the issuance of such Registrable Securities may have a potential
dilutive effect. The Company specifically acknowledges that its
obligation to issue the Registrable Securities is binding upon the
Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company.
(f)38.6 Except for agreements made in the ordinary course of
business, there is no agreement that has not been filed with the
Commission as an exhibit to a registration statement or to a form
required to be filed by the Company under the Exchange Act, the breach
of which could reasonably be expected to have a material and adverse
effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into and
perform any of its obligations under this Agreement in any material
respect.
(g)38.7 The Company will at all times have authorized and
reserved a sufficient number of shares of Common Stock for the full
conversion of the Note.
7.39. Miscellaneous.
(a)39.1 Remedies. In the event of a breach by the Company or
by a Holder, of any of their respective obligations under this
Agreement, each Holder or the Company, as the case may be, in addition
to being entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
(b)39.2 No Piggyback on Registrations. Except as and to the
extent specified in Schedule 7(b) hereto, neither the Company nor any
of its security holders (other than the Holders in such capacity
pursuant hereto) may include securities of the Company in any
Registration Statement other than the Registrable Securities, and the
Company shall not after the date hereof enter into any agreement
providing any such right for inclusion of shares in the Registration
Statement to any of its security holders. Except as and to the extent
specified in Schedule 7(b) hereto, the Company has not previously
entered into any agreement granting any registration rights with
respect to any of its securities to any Person that have not been fully
satisfied.
(c)39.3 Compliance. Each Holder covenants and agrees that it
will comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement.
(d)39.4 Discontinued Disposition. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of
any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce
the provisions of this paragraph. For purposes of this Section 7(d), a
"Discontinuation Event" shall mean (i) when the Commission notifies the
Company whether there will be a "review" of such Registration Statement
and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof
and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration Statement
or Prospectus or for additional information; (iii) the issuance by the
Commission of any stop order suspending the effectiveness of such
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv)
the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any Proceeding for such purpose; and/or
(v) the occurrence of any event or passage of time that makes the
financial statements included in such Registration Statement ineligible
for inclusion therein or any statement made in such Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to such Registration Statement, Prospectus
or other documents so that, in the case of such Registration Statement
or Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e)39.5 Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall
determine to prepare and file with the Commission a registration
statement relating to an offering for its own account or the account of
others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities
Act) or their then equivalents relating to equity securities to be
issued solely in connection with any acquisition of any entity or
business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to each
Holder written notice of such determination and, if within fifteen days
after receipt of such notice, any such Holder shall so request in
writing, the Company shall include in such registration statement all
or any part of such Registrable Securities such holder requests to be
registered to the extent the Company may do so without violating
registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable to all
holders of registration rights and subject to obtaining any required
the consent of any selling stockholder(s) to such inclusion under such
registration statement.
(f)39.6 Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the same
shall be in writing and signed by the Company and the Holders of the
then outstanding Registrable Securities. Notwithstanding the foregoing,
a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of certain Holders
and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(g)39.7 Notices. Any notice or request hereunder may be given
to the Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or
other national overnight next day carrier (collectively, "Courier") or
telecopy (confirmed by mail). Notices and requests shall be, in the
case of those by hand delivery, deemed to have been given when
delivered to any party to whom it is addressed, in the case of those by
mail or overnight mail, deemed to have been given three (3) business
days after the date when deposited in the mail or with the overnight
mail carrier, in the case of a Courier, the next business day following
timely delivery of the package with the Courier, and, in the case of a
telecopy, when confirmed. The address for such notices and
communications shall be as follows:
If to the Company: Epixtar Corp.
11900 Biscayne Boulevard,
Suite 700
Miami, Florida 33181
Attention: Corporate Secretary
Facsimile: 305-503-8610
with a copy to:
Michael DiGiovanna, Esq.
212 Carnegie Center
Suite 206
Princeton, New Jersey 08540
Facsimile: 609-452-9473
If to a Purchaser: To the address set forth under
such Purchaser name on the
signature pages hereto.
If to any other Person who is
then the registered Holder: To the address of such Holder
as it appears in the stock
transfer books of the Company.
or such other address as may be designated in writing hereafter in
accordance with this Section 7(g) by such Person.
(h)39.8 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns
of each of the parties and shall inure to the benefit of each Holder.
The Company may not assign its rights or obligations hereunder without
the prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as
permitted under the Notes and the Security Agreement with the prior
written consent of the Company, which consent shall not be unreasonably
withheld.
(i)39.9 Execution and Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed
shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall
create a valid binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
(j)39.10 Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of this
Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Except as set forth below in
this Section 7(j), any and all disputes, controversies and claims that
the Company or any of its Subsidiaries may assert against the Purchaser
arising out of or relating to this Agreement, the Securities Purchase
Agreement or any other Related Agreement shall be determined
exclusively by arbitration (each such arbitration, an "Arbitration") in
New York City before a panel of three neutral arbitrators agreed to by
the Purchaser and the Company (collectively, the "Arbitrators") in
accordance with and pursuant to the then existing commercial
arbitration rules of the American Arbitration Association. The Company
(on its behalf and on behalf of its Subsidiaries) hereby irrevocably
waives any right to assert such claims in any other forum. The
Arbitrators shall have the power in their discretion to award specific
performance or injunctive relief (but shall not have the power to
render any incidental, special or punitive damages) and reasonable
attorneys' fees and expenses to any party in any arbitration. The
Arbitrators may not change, modify or alter any express condition, term
or provision of this Agreement, the Securities Purchase Agreement or of
any other Related Agreement nor shall they have the power to render any
award against the Purchaser that would have such effect. Each
Arbitration award shall be final and binding upon the parties subject
thereto and judgment may be entered thereon in any court of competent
jurisdiction. The service of any notice, process, motion or other
document in connection with an Arbitration or for the enforcement of
any Arbitration award may be made in the same manner as communications
may be given under Section 7(g) hereof. Notwithstanding the foregoing,
the provisions of this Section 7(j) nor any other provision contained
in this Agreement, the Securities Purchase Agreement or in any Related
Agreement shall limit in any manner whatsoever the Purchaser's right to
commence an action against or in connection with the Company, any of
its Subsidiaries or their respective properties in any court of
competent jurisdiction or otherwise utilize judicial process in
connection with or arising out of the Purchaser's rights and remedies
under this Agreement, the Securities Purchase Agreement and/or any
Related Agreement or otherwise (any such action, a "Court Action").
Court Actions may be brought by the Purchaser in any state or federal
court of competent jurisdiction and the Company (on its behalf and on
behalf of its Subsidiaries) irrevocably submits to the jurisdiction of
such state and federal courts and irrevocably waives any claim or
defense of inconvenient forum or lack of personal jurisdiction in such
forum or right of removal or right to jury trial under any applicable
law or decision or otherwise. Service of any notice, process, motion or
other document in connection with a Court Action may be made in the
same manner as communications may be given under Section 7(g). In
addition, the Purchaser may serve process in any other manner permitted
under applicable law. If either party shall commence a Proceeding to
enforce any provisions of this Agreement, the Securities Purchase
Agreement or any other Related Agreement, then the prevailing party in
such Proceeding shall be reimbursed by the other party for its
reasonable attorneys fees and other costs and expenses incurred with
the investigation, preparation and prosecution of such Proceeding.
(k)39.11 Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(l)39.12 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(m)39.13 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
EPIXTAR CORP. LAURUS MASTER FUND, LTD.
By: /s/ Ilene Kaminsky By: /s/ Authorized Officer
---------------------- -----------------------------
Name: Ilene Kaminsky Name:
---------------------- -----------------------------
Title: CEO Title:
---------------------- -----------------------------
Address for Notices:
825 Third Avenue -- 14th Floor
New York, NY 10022
Attention: Eugene Grin
Facsimile: 212-541-4434
EXHIBIT A
[Month __, 2004]
[Continental Stock Transfer
& Trust Company
Two Broadway
New York, NY 10004
Attn: William Seegraber]
Re: Epixtar Corp. Registration Statement on Form [S-1][SB-2]
Ladies and Gentlemen:
As counsel to Epixtar Corp., a Florida corporation (the "Company"), we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on Schedule A attached hereto (the
"Selling Stockholders"), of an aggregate of [amount]shares (the "Shares") of the
Company's Common Stock.
A Registration Statement on Form [S-1][SB-2] under the Securities Act
of 1933, as amended (the "Act"), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on [date]. Enclosed
is the Prospectus dated [date]. We understand that the Shares are to be offered
and sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at
any time while the registration statement remains effective, it is our opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration by the
Selling Stockholders may be issued without restrictive legend. We will advise
you if the registration statement is not available or effective at any point in
the future.
Very truly yours,
[Company counsel]
SCHEDULE A
Shares
Selling Stockholder Being Offered
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