EXHIBIT 10.7
SHARE EXCHANGE AGREEMENT
SHARE EXCHANGE AGREEMENT (this "Agreement"), dated July __, 2005, by and
between Akid Corporation ("Akid"), a Colorado corporation having an address at
34 West 33rd Street, New York, NY 10001, and Leonard Cohen ("Cohen"), an
individual having an address at 750 Broad Street, Shrewsbury, NJ 07702.
W I T N E S S E T H :
WHEREAS, Mazal Plant Pharmaceuticals, Inc. ("Mazal"), a Delaware
corporation, is a subsidiary of Akid;
WHEREAS, pursuant to a Subscription Agreement dated April 11, 2005, Cohen
purchased One Hundred Twenty Thousand (120,000) shares of the common stock of
Mazal (the "Mazal Shares");
WHEREAS, the parties hereto desire that Cohen exchange the Mazal Shares
for One Hundred Twenty Thousand (120,000) shares of the common stock of Akid
(the "Exchange Shares") in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
1. Share Exchange. Subject to the terms and conditions stated herein, at the
Closing, (a) Cohen shall assign, transfer, convey, and deliver to Akid, and Akid
shall accept and acquire, the Mazal Shares and any and all rights in such shares
to which he is entitled, and by doing so will be deemed to have assigned all of
his right, title and interest in and to all such Mazal Shares to Akid, and (b)
Akid shall issue to Cohen, and Cohen shall accept and acquire from Akid, the
Exchange Shares (collectively, the "Exchange"). If one or more stock
certificates representing the Mazal Shares has been issued, such conveyance of
the Mazal Shares shall be evidenced by such stock certificate(s), duly endorsed
in blank or accompanied by stock powers duly executed in blank, or other
instruments of transfer in form and substance reasonably satisfactory to Akid.
2. The Closing. The closing (the "Closing") of the transactions contemplated
hereunder shall take place simultaneously with the execution of this Agreement
at such place as the parties may agree.
3. Representations and Warranties; Indemnification.
3.1 Representations and Warranties of Cohen. As an inducement to Akid to
enter into this Agreement and to consummate the transactions contemplated
herein, Cohen represents and warrants to Akid as follows:
(a) Authority. Cohen has the right, power, authority and capacity to
execute and deliver this Agreement, to consummate the transactions contemplated
hereby and to perform his obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligations of Cohen, enforceable
against Cohen in accordance with the terms hereof.
(b) Ownership. Cohen is the sole record and beneficial owner of the Mazal
Shares, has good and marketable title to the Mazal Shares, free and clear of all
Encumbrances (hereafter defined), and has full legal right and power to sell,
transfer and deliver the Mazal Shares to Akid in accordance with this Agreement.
"Encumbrances" means any liens, pledges, hypothecations, charges, adverse
claims, options, preferential arrangements or restrictions of any kind,
including, without limitation, any restriction of the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership, other than
as provided under applicable securities laws. Upon the execution and delivery of
this Agreement, Akid will receive good and marketable title to the Mazal Shares,
free and clear of all Encumbrances. There are no stockholders' agreements,
voting trust, proxies, options, rights of first refusal or any other agreements
or understandings with respect to the Mazal Shares.
(c) No Conflict. None of the execution, delivery, or performance of this
Agreement, and the consummation of the transactions contemplated hereby,
conflicts or will conflict with, or (with or without notice or lapse of time, or
both) result in a termination, breach or violation of (i) any instrument,
contract or agreement to which Cohen is a party or by which he is bound, or to
which the Mazal Shares are subject; or (ii) any federal, state, local or foreign
law, ordinance, judgment, decree, order, statute, or regulation, or that of any
other governmental body or authority, applicable to Cohen or the Mazal Shares.
(d) No Consent. No consent, approval, authorization or order of, or any
filing or declaration with any governmental authority or any other person is
required for the consummation by the Cohen of any of the transactions on its
part contemplated under this Agreement.
(e) Own Account. Cohen is acquiring the Exchange Shares for his own
account as principal, not as a nominee or agent, for investment purposes only,
and not with a view to, or for, resale, distribution or fractionalization
thereof in whole or in part and no other person has a direct or indirect
beneficial interest in such Exchange Shares or any portion thereof. Further,
Cohen does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to the Exchange Shares.
(f) No Advertisement. Cohen is not acquiring the Exchange Shares as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or presented at any seminar or meeting, or any
solicitation of a subscription by person previously not known to Cohen in
connection with investment securities generally.
(g) No Obligation to Register. Cohen understands that, except as set forth
herein, Akid is under no obligation to register the Exchange Shares under the
Securities Act of 1933, as amended (the "Act"), or to assist Cohen in complying
with the Act or the securities laws of any state of the United States or of any
foreign jurisdiction.
(h) Experience. Cohen is (1) experienced in making investments of the kind
described in this Agreement and the related documents, (2) able, by reason of
the business and financial experience of its officers (if an entity) and
professional advisors (who are not affiliated with or compensated in any way by
Akid or any of its affiliates or selling agents), to protect its own interests
in connection with the transactions described in this Agreement, and the related
documents, and (3) able to afford the entire loss of its investment in the
Exchange Shares.
(i) Exemption from Registration. Cohen acknowledges his understanding that
the offering and sale Exchange Shares is intended to be exempt from registration
under the Act. In furtherance thereof, in addition to the other representations
and warranties of Cohen made herein, Cohen further represents and warrants to
and agrees with the Company and its affiliates as follows:
(1) Cohen realizes that the basis for the exemption may not be
present if, notwithstanding such representations, Cohen has in mind merely
acquiring the Exchange Shares for a fixed or determinable period in the future,
or for a market rise, or for sale if the market does not rise. Cohen does not
have any such intention;
(2) Cohen has the financial ability to bear the economic risk of his
investment, has adequate means for providing for his current needs and personal
contingencies and has no need for liquidity with respect to his investment in
Akid; and
(3) Cohen has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
prospective investment in the Exchange Shares; and
(4) Cohen has been provided an opportunity for a reasonable period
of time prior to the date hereof to obtain additional information concerning the
offering of the Exchange Shares, Akid and all other information to the extent
Akid possesses such information or can acquire it without unreasonable effort or
expense.
(5) Cohen has carefully reviewed all of Akid's filings under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(j) Compliance with Local Laws. Any resale of the Exchange Shares during
the `distribution compliance period' as defined in Rule 902(f) to Regulation S
promulgated under the Act ("Regulation S") shall only be made in compliance with
exemptions from registration afforded by Regulation S. Further, any such sale of
the Exchange Shares in any jurisdiction outside of the United States will be
made in compliance with the securities laws of such jurisdiction. Cohen will not
offer to sell or sell the Exchange Shares in any jurisdiction unless Cohen
obtains all required consents, if any.
(k) Regulation S Exemption. Cohen understands that the Exchange Shares are
being offered and sold to him in reliance on an exemption from the registration
requirements of United States federal and state securities laws under Regulation
S promulgated under the Act and that Akid is relying upon the truth and accuracy
of the representations, warranties, agreements, acknowledgments and
understandings of Cohen set forth herein in order to determine the applicability
of such exemptions and the suitability of Cohen to acquire the Exchange Shares.
In this regard, Cohen represents, warrants and agrees that:
(1) Cohen is not a U.S. Person (as defined below) and is an
affiliate (as defined in Rule 501(b) under the Act) of Akid and is not acquiring
the Exchange Shares for the account or benefit of a U.S. Person. A U.S. Person
means any one of the following:
(A) any natural person resident in the United States of
America;
(B) any partnership or corporation organized or incorporated
under the laws of the United States of America;
(C) any estate of which any executor or administrator is a
U.S. person;
(D) any trust of which any trustee is a U.S. person;
(E) any agency or branch of a foreign entity located in the
United States of America;
(F) any non-discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a U.S. person;
(G) any discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary organized, incorporated
or (if an individual) resident in the United States of America; and
(H) any partnership or corporation if:
(i) organized or incorporated under the laws of any
foreign jurisdiction; and
(ii) formed by a U.S. person principally for the purpose
of investing in securities not registered under the Act, unless it is organized
or incorporated, and owned, by accredited investors (as defined in Rule 501(a)
under the Act) who are not natural persons, estates or trusts.
(2) At the time of the origination of contact concerning this
Agreement and the date of the execution and delivery of this Agreement, Cohen
was outside of the United States.
(3) Cohen will not, during the period commencing on the date of
issuance of the Exchange Shares and ending on the first anniversary of such
date, or such shorter period as may be permitted by Regulation S or other
applicable securities law (the "Restricted Period"), offer, sell, pledge or
otherwise transfer the Exchange Shares in the United States, or to a U.S. Person
for the account or for the benefit of a U.S. Person, or otherwise in a manner
that is not in compliance with Regulation S.
(4) Cohen will, after expiration of the Restricted Period, offer,
sell, pledge or otherwise transfer the Exchange Shares only pursuant to
registration under the Act or an available exemption therefrom and, in
accordance with all applicable state and foreign securities laws.
(5) Cohen was not in the United States, engaged in, and prior to the
expiration of the Restricted Period will not engage in, any short selling of or
any hedging transaction with respect to the Exchange Shares, including without
limitation, any put, call or other option transaction, option writing or equity
swap.
(6) Neither Cohen nor or any person acting on his behalf has
engaged, nor will engage, in any directed selling efforts to a U.S. Person with
respect to the Exchange Shares and Cohen and any person acting on his behalf
have complied and will comply with the "offering restrictions" requirements of
Regulation S under the Act.
(7) The transactions contemplated by this Agreement have not been
pre-arranged with a buyer located in the United States or with a U.S. Person,
and are not part of a plan or scheme to evade the registration requirements of
the Act.
(8) Neither Cohen nor any person acting on his behalf has undertaken
or carried out any activity for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United States,
its territories or possessions, for any of the Exchange Shares. Cohen agrees not
to cause any advertisement of the Exchange Shares to be published in any
newspaper or periodical or posted in any public place and not to issue any
circular relating to the Exchange Shares, except such advertisements that
include the statements required by Regulation S under the Act, and only offshore
and not in the U.S. or its territories, and only in compliance with any local
applicable securities laws.
(9) Each certificate representing the Exchange Shares shall be
endorsed with the following legends, in addition to any other legend required to
be placed thereon by applicable federal or state securities laws:
(A) "THE SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT
U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS
AMENDED ("THE SECURITIES ACT")) AND WITHOUT REGISTRATION WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON
REGULATION S PROMULGATED UNDER THE SECURITIES ACT."
(B) "TRANSFER OF THESE SECURITIES IS PROHIBITED, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO REGISTRATION UNDER
THE SECURITIES ACT, OR PURSUANT TO AVAILABLE EXEMPTION FROM REGISTRATION.
HEDGING TRANSACTIONS MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT."
(10) Cohen consents to Akid making a notation on its records or
giving instructions to any transfer agent of Akid in order to implement the
restrictions on transfer of the Exchange Shares.
(l) Accredited Investor. Cohen is an "accredited investor" as that term is
defined in Rule 501 of the General Rules and Regulations under the Act by reason
of Rule 501(a)(3).
(m) Risk. Cohen understands that an investment in the Exchange Shares is a
speculative investment which involves a high degree of risk and the potential
loss of his entire investment.
(n) Net Worth. Cohen's overall commitment to investments which are not
readily marketable is not disproportionate to Cohen's net worth, and an
investment in the Exchange Shares will not cause such overall commitment to
become excessive.
(o) SEC Documents. Cohen has received all documents, records, books and
other information pertaining to Cohen's investment in Akid that has been
requested by Cohen. Cohen has reviewed or received copies of all reports and
other documents filed by Akid with the Securities and Exchange Commission (the
"SEC Documents").
(p) Reliance. Other than as set forth herein, Cohen is not relying upon
any other information, representation or warranty by Akid or any officer,
director, stockholder, agent or representative of Akid in determining to invest
in the Exchange Shares. Cohen has consulted, to the extent deemed appropriate by
Cohen, with Cohen's own advisers as to the financial, tax, legal and related
matters concerning an investment in the Exchange Shares and on that basis
believes that his or its investment in the Exchange Shares is suitable and
appropriate for Cohen.
(q) No Governmental Review. Cohen is aware that no federal or state agency
has (1) made any finding or determination as to the fairness of this investment,
(2) made any recommendation or endorsement of the Exchange Shares or Akid, or
(3) guaranteed or insured any investment in the Exchange Shares or any
investment made by Akid.
(r) Price. Cohen understands that the price of the Exchange Shares offered
hereby bear no relation to the assets, book value or net worth of Akid and were
determined arbitrarily by Akid. Cohen further understands that there is a
substantial risk of further dilution on his or its investment in Akid.
(s) Full Disclosure. No representation or warranty of Cohen to Akid in
this Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading.
There is no fact known to Cohen that has specific application to the Shares and
that materially adversely affects or, as far as can be reasonably foreseen,
materially threatens the Shares that has not been set forth in this Agreement.
3.2 Representations and Warranties of Akid. As an inducement to Cohen to
enter into this Agreement and to consummate the transactions contemplated
herein, Akid represents and warrants to Cohen as follows:
(a) Organization of Akid. Akid is a corporation duly organized and validly
existing and in good standing under the laws of the State of Colorado, and has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted. Akid is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted or property owned by it makes such
qualification necessary, other than those in which the failure so to qualify
would not have a material adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of Akid.
(b) Authority. (1) Akid has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement and to issue the
Exchange Shares; (2) the execution and delivery of this Agreement by Akid and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action and no further consent or
authorization of Akid or its Board of Directors or stockholders is required; and
(3) this Agreement has been duly executed and delivered by Akid and constitutes
a valid and binding obligation of Akid enforceable against Akid in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
(c) SEC Documents. To the best of Company's knowledge, Akid has not
provided to Cohen any information that, according to applicable law, rule or
regulation, should have been disclosed publicly prior to the date hereof by
Akid, but which has not been so disclosed. As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the Act or
the Exchange Act, as the case may be, and other federal, state and local laws,
rules and regulations applicable to such SEC Documents, and none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Akid included in the SEC Documents
comply as to form and substance in all material respects with applicable
accounting requirements and the published rules and regulations of the
Securities and Exchange Commission (the "SEC") or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (1) as may be otherwise
indicated in such financial statements or the notes thereto or (2) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements) and fairly present in all material
respects the financial position of Akid as of the dates thereof and the results
of operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(d) Exemption from Registration; Valid Issuances. The sale and issuance of
the Exchange Shares, in accordance with the terms and on the bases of the
representations and warranties of Cohen set forth herein, may and shall be
properly issued by Akid to Cohen pursuant to any applicable federal or state
law. When issued and paid for as herein provided, the Exchange Shares shall be
duly and validly issued, fully paid, and nonassessable. Neither the sales of the
Exchange Shares pursuant to, nor Akid's performance of its obligations under,
this Agreement shall (1) result in the creation or imposition of any liens,
charges, claims or other encumbrances upon the Exchange Shares or any of the
assets of Akid, or (2) entitle the other holders of the Common Stock of Akid to
preemptive or other rights to subscribe to or acquire the Common Stock or other
securities of Akid. The Exchange Shares shall not subject Cohen to personal
liability by reason of the ownership thereof.
(e) No General Solicitation or Advertising in Regard to this Transaction.
Neither Akid nor any of its affiliates nor any person acting on its or their
behalf (1) has conducted or will conduct any general solicitation (as that term
is used in Rule 502(c) of Regulation D) or general advertising with respect to
any of the Exchange Shares, or (2) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Common Stock under the Act.
(f) No Conflicts. The execution, delivery and performance of this
Agreement by Akid and the consummation by Akid of the transactions contemplated
hereby, including without limitation the issuance of the Exchange Shares, do not
and will not (1) result in a violation of the Certificate or By-Laws of Akid or
(2) conflict with, or constitute a material default (or an event that with
notice or lapse of time or both would become a material default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
any material agreement, indenture, instrument or any "lock-up" or similar
provision of any underwriting or similar agreement to which Akid is a party, or
(3) result in a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations)applicable to Akid or by which any property or asset of
Akid is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not,
individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of Akid) nor is Akid otherwise in violation of, conflict with or in
default under any of the foregoing. The business of Akid is not being conducted
in violation of any law, ordinance or regulation of any governmental entity,
except for possible violations that either singly or in the aggregate do not and
will not have a material adverse effect on the business, operations, properties,
prospects or condition (financial or otherwise) of Akid. Akid is not required
under federal, state or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Common Stock in
accordance with the terms hereof (other than any SEC, NASD or state securities
filings that may be required to be made by Akid subsequent to the Closing, any
registration statement that may be filed pursuant hereto, and any shareholder
approval required by the rules applicable to companies whose common stock trades
on the Over The Counter Bulletin Board); provided that, for purposes of the
representation made in this sentence, Akid is assuming and relying upon the
accuracy of the relevant representations and agreements of Cohen herein.
(g) No Undisclosed Liabilities. Akid has no liabilities or obligations
that are material, individually or in the aggregate, and that are not disclosed
in the SEC Documents or otherwise publicly announced, other than those incurred
in the ordinary course of Akid's businesses and which, individually or in the
aggregate, do not or would not have a material adverse effect on Akid.
(h) No Undisclosed Events or Circumstances. No event or circumstance has
occurred or exists with respect to Akid or its businesses, properties,
prospects, operations or financial condition, that, under applicable law, rule
or regulation, requires public disclosure or announcement prior to the date
hereof by Akid but which has not been so publicly announced or disclosed in the
SEC Documents.
(i) Litigation and Other Proceedings. Except as may be set forth in the
SEC Documents, there are no lawsuits or proceedings pending or to the best
knowledge of Akid threatened, against Akid, nor has Akid received any written or
oral notice of any such action, suit, proceeding or investigation, which would
have a material adverse effect on the business, operations, properties,
prospects or condition (financial or otherwise) of Akid. Except as set forth in
the SEC Documents, no judgment, order, writ, injunction or decree or award has
been issued by or, so far as is known by Akid, requested of any court,
arbitrator or governmental agency which would have a material adverse effect on
the business, operations, properties, prospects or condition (financial or
otherwise) of Akid.
3.3 Indemnification. Cohen shall indemnify and hold harmless Akid and
Akid's agents, beneficiaries, affiliates, representatives and their respective
successors and assigns from and against any and all damages, losses,
liabilities, taxes and costs and expenses (including, without limitation,
attorneys' fees and costs) resulting directly or indirectly from (a) any
inaccuracy, misrepresentation, breach of warranty or non-fulfillment of any of
the representations and warranties of Cohen in this Agreement, or any actions,
omissions or statements of fact inconsistent with in any material respect any
such representation or warranty, (b) any failure by Cohen to perform or comply
with any agreement, covenant or obligation in this Agreement.
4. Piggy-Back Registration Rights.
4.1 Right to include Registrable Securities. For purposes of this
Agreement, "Registrable Securities" means Sixty Thousand (60,000) shares of the
Exchange Shares. If at any time, Akid shall determine to prepare and file with
the Securities and Exchange Commission, a registration statement relating to an
offering for its own account or the account of others, under the Act, of any of
its equity securities, other than on Form S-4 or Form S-8 (each promulgated
under the Act) or their then equivalents relating to equity securities to be
issued in connection with an underwritten offering for its own account or other
holders of Akid's shares of Common Stock or securities to be issued in any
acquisition of any entity or business or equity securities issuable in
connection with stock options or other employee benefit plans (the "Registration
Statement"), then Akid shall send to Cohen written notice of such determination
and if, within fifteen (15) days after receipt of such notice Cohen shall so
request in writing, Akid shall include in such registration statement all or any
part of the Registrable Securities, as Cohen requests to be registered. Akid
shall keep such Registration Statement current and maintain compliance with each
Federal and state law or regulation for the period necessary for such Cohen to
effectuate the proposed sale or to otherwise be eligible to effectuate a sale
pursuant to Rule 144 of the Act.
4.2 Registration of Underwritten Public Offerings. Anything to the
contrary herein notwithstanding, if the registration involves an offering by or
through underwriters, then (a) Cohen must sell its Registrable Securities to the
underwriters selected by Akid on the same terms and conditions as apply to other
selling securityholders; and (b) Cohen may elect in writing, not later than
three business days prior to the effectiveness of the Registration Statement
filed in connection with such registration, not to have its Registrable
Securities so included in connection with such registration.
4.3 Priority in Registration. Notwithstanding anything contained herein to
the contrary, if this registration involves an offering by or through
underwriters, Akid shall not be required to include Registrable Securities
therein, if and to the extent the underwriter managing the offering reasonably
believes in good faith and advises Cohen that such inclusion would materially
adversely affect such offering; provided that any such reduction or elimination
shall be pro rata to all other securityholders of the securities of Akid
entitled to registration rights in proportion to the respective number of shares
they have requested to be registered.
4.4 Registration Procedures.
(a) If and whenever Akid takes action to register Registrable
Securities on behalf of Cohen, it shall, as expeditiously as practicable:
(1) Furnish to Cohen and each managing underwriter, without
charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference)
(2) Deliver to Cohen and the underwriters, if any, without
charge, as many copies of the prospectus or prospectuses (including each
preliminary prospectus), any amendment or supplement thereto as such persons may
reasonably request; Akid consents to the use of such prospectus or any amendment
or supplement thereto by Cohen and the underwriters, if any, in connection with
the offering and sale of the Registrable Securities covered by such prospectus
or any amendment or supplement thereto;
(3) Prior to any public offering of Registrable Securities,
cooperate with Cohen, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as Cohen or an underwriter reasonably requests in
writing, keep each such registration or qualification effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided that Akid will not be required to qualify to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject Akid to general service of process in any
jurisdiction where it is not at the time so subject;
(4) Cooperate with Cohen and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least two
(2) business days prior to any sale of Registrable Securities to the
underwriters;
(5) Use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(6) With respect to each issue or class of Registrable
Securities, use its best efforts to cause all Registrable Securities covered by
the Registration Statements to be listed on each securities exchange, if any, on
which similar securities issued by Akid are then listed if requested by the
majority of such issue or class of Registrable Securities;
(7) Enter into such agreements (including an underwriting
agreement) and take all such other action reasonably required in connection
therewith in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, if the registration is in connection with an
underwritten offering (i) make such representations and warranties to the
underwriters, in such form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if and
when requested; (ii) obtain opinions of counsel to Akid and updates thereof
(which counsel shall be reasonably acceptable to the underwriters and which
opinions shall be in form, scope and substance reasonably satisfactory to the
underwriters) addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such underwriters; (iii) obtain "cold comfort"
letters and updates thereof from Akid's accountants addressed to the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters by underwriters in connection
with underwritten offerings; (iv) set forth in full in any underwriting
agreement entered into, the indemnification provisions and procedures of Section
5.3 hereof with respect to all parties to be indemnified pursuant to said
Section; and (v) deliver such documents and certificates as may be reasonably
requested by the underwriters to evidence compliance with clause (i) above and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by Akid; the above shall be done at each closing under
such underwriting or similar agreement or as and to the extent required
hereunder;
(8) Make available for inspection by one or more
representatives of Cohen, any underwriter participating in any disposition
pursuant to such registration, and any attorney or accountant retained by Cohen
or underwriter, all financial and other records, pertinent corporate documents
and properties of Akid, and cause Akid's officers, directors and employees to
supply all information reasonably requested by any such representatives, in
connection with such; and
(9) Otherwise use its best efforts to comply with all
applicable federal and state regulations; and take such other action as may be
reasonably necessary to or advisable to enable Cohen and each underwriter to
consummate the sale or disposition in such jurisdiction or jurisdiction in which
Cohen or the underwriter shall have requested that the Registrable Securities be
sold.
(b) Except as otherwise provided herein, Akid shall have sole
control in connection with the preparation, filing, withdrawal, amendment or
supplementing of each Registration Statement, the selection of underwriters, and
the distribution of any preliminary prospectus included in the Registration
Statement, and may include within the coverage thereof additional shares of
Common Stock or other securities for its own account or for the account of one
or more of its other securityholders.
(c) Akid may require each Cohen to furnish to Akid such information
regarding the distribution of such securities and such other information as may
otherwise be required by the Act to be included in such Registration Statement.
5. Miscellaneous.
(a) Notices. All notices or other communications required or permitted
hereunder shall be in writing. Any notice, request, demand, claim or other
communication hereunder shall be deemed duly given (i) if by personal delivery,
when so delivered, (ii) if mailed, three (3) business days after having been
sent by registered or certified mail, return receipt requested, postage prepaid
and addressed to the intended recipient as set forth above, or (iii) if sent
through an overnight delivery service in circumstances to which such service
guarantees next day delivery, the day following being so sent to the address of
the intended recipient as first set forth above. Any party may change the
address to which notices and other communications hereunder are to be delivered
by giving the other parties notice in the manner herein set forth.
(b) Choice of Law. This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of New York and the federal
laws of United States applicable therein, without giving effect to principles of
conflicts of law.
(c) Jurisdiction. The parties hereby irrevocably consent to the in
personam jurisdiction of the state or federal courts located in the State of New
York, in connection with any action or proceeding arising out of or relating to
this Agreement or the transactions and the relationships established thereunder.
The parties hereby agree that such courts shall be the venue and exclusive and
proper forum in which to adjudicate such matters and that they will not contest
or challenge the jurisdiction or venue of these courts.
(d) Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties in respect of the transactions contemplated hereby
and supersedes all prior and contemporaneous agreements, arrangements and
understandings of the parties relating to the subject matter hereof. No
representation, promise, inducement, waiver of rights, agreement or statement of
intention has been made by any of the parties which is not expressly embodied in
this Agreement, such other agreements, notes or instruments related to this
transaction executed simultaneously herewith, or the written statements,
certificates, schedules or other documents delivered pursuant to this Agreement
or in connection with the transactions contemplated hereby.
(e) Assignment. Each party's rights and obligations under this Agreement
shall not be assigned or delegated, by operation of law or otherwise, without
the other party's prior consent, and any such assignment or attempted assignment
shall be void, of no force or effect, and shall constitute a material default by
such party.
(f) Amendments. This Agreement may be amended, modified, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by each
party, in the case of a waiver, by the party waiving compliance.
(g) Waivers. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or the
breach of any term, covenant, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other term, covenant, representation or
warranty of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the date first set forth above.
AKID CORPORATION
By: /s/ Mechael Kanovsky
-----------------------------------
Name: Mechael Kanovsky
Title:
/s/ Leonard Cohen
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LEONARD COHEN