Attached files
| file | filename |
|---|---|
| 8-K - Fuer International Inc. | v188653_8k.htm |
| EX-4.6 - Fuer International Inc. | v188653_ex4-6.htm |
| EX-2.1 - Fuer International Inc. | v188653_ex2-1.htm |
| EX-4.5 - Fuer International Inc. | v188653_ex4-5.htm |
| EX-2.2 - Fuer International Inc. | v188653_ex2-2.htm |
| EX-10.15 - Fuer International Inc. | v188653_ex10-15.htm |
| EX-10.14 - Fuer International Inc. | v188653_ex10-14.htm |
| EX-10.16 - Fuer International Inc. | v188653_ex10-16.htm |
| EX-10.17 - Fuer International Inc. | v188653_ex10-17.htm |
REGISTRATION RIGHTS AGREEMENT
Registration
Rights Agreement (this “Agreement”), made
this 17th day of June, 2010 by and among Forex 365, Inc., a Nevada corporation
(the “Company”)
and the purchaser(s) signatory hereto (each such purchaser, a “Purchaser” and
collectively, the “Purchasers”).
This
Agreement is made pursuant to and in connection with the Securities Purchase Agreement
between the Company and Purchaser dated as of the date hereof (the “Purchase
Agreement”), pursuant to which the Purchaser purchased shares of
common stock of the Company and common stock purchase warrants of the
Company.
The
Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized
terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase
Agreement. As used in this Agreement, the following terms shall have
the following meanings:
“Advice” shall have
the meaning set forth in Section 6(d).
“Business Day” means
any day except Saturday, Sunday and any day which shall be a federal legal
holiday or a day on which banking institutions in the State of New York are
authorized or required by law or other governmental action to
close.
“Commission” shall
mean the Securities and Exchange Commission.
“Common Stock” shall
mean shares of Common Stock of the Company.
“Effectiveness Date”
means, with respect to the Registration Statement required to be filed
hereunder, the earlier of (a) the 900th calendar day following the closing date
of the Offering, or the 150th calendar day following the closing date of the
Offering if the Registration Statement is subject to review and comment from the
Commission, provided that if such day is not a Business Day, then the next
Business Day thereafter, and (b) the fifth Trading Day following the date on
which the Company is notified by the Commission that the Registration Statement
will not be reviewed or is no longer subject to further review and
comments.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event” shall have the
meaning set forth in Section 2(c).
“Event Date” shall
have the meaning set forth in Section 2(c).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Filing Date” means,
with respect to the Registration Statement required to be filed hereunder, the
60th calendar day following the consummation of the Offering, provided that if
such day is not a Business Day, then the Filing Date shall be the next Business
Day thereafter.
“Holder” or “Holders” means the
holder or holders, as the case may be, from time to time of 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).
“Losses” shall have
the meaning set forth in Section 5(a).
“Offering” shall mean
the offering of Shares and Warrants by the Company pursuant to the
Memorandum.
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Proceeding” means an
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 (i) the Shares of Common Stock purchased pursuant on
the Securities Purchase Agreement, (ii) shares of Common Stock issuable upon
exercise of the Warrants (iii) shares of Common Stock issuable under Sections
___ and ____ of the Securities Purchase Agreement, (iv) the Warrants and (v) any
shares of Common Stock issued or issuable upon any stock split, dividend or
other distribution, recapitalization or similar event with respect to the
foregoing.
“Registration
Statement” means the registration statements required to be filed by the
Company hereunder, including (in each case) the Prospectus, amendments and
supplements to the 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 the registration
statement.
“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 purpose and effect as
such Rule.
"Rule 415 Interpretative
Position" means the then-current interpretation of the staff of the SEC
regarding the availability of Rule 415 for continuous or delayed offerings of
securities for the account of selling security holders.
“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 purpose and effect as
such Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
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“Trading Day” means
(i) a day on which the Common Stock is traded on a Trading Market, or (ii) if
the Common Stock is not listed on a Trading Market, a day on which the Common
Stock is traded on the over-the-counter market, as reported by the OTC Bulletin
Board, or (iii) if the Common Stock is not quoted on the OTC Bulletin Board, a
day on which the Common Stock is quoted in the over-the-counter market as
reported by Pink Sheets LLC (or any similar organization or agency succeeding to
its functions of reporting prices); provided, that in the event that the Common
Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day.
“Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question American Stock Exchange, the New York Stock
Exchange, the Nasdaq National Market, the Nasdaq SmallCap Market or the OTC
Bulletin Board.
“Transaction
Documents” means this Agreement and the Purchase Agreement and any other
documents or agreements executed in connection with the transactions
contemplated hereunder and thereunder.
“Warrants” shall have
the meaning given such term in the Purchase Agreement.
2. Registration.
(a) On
or prior to the Filing Date, the Company shall prepare and file with the
Commission the Registration Statement covering the resale of all of the
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415; provided,
that the Company shall only be required to register Registrable Securities up to
an amount permitted to be registered by the Securities and Exchange Commission
(the “SEC”)
pursuant to the Rule 415 Interpretative Position. The Registration
Statement required hereunder shall be on Form S-1 (or another appropriate form
in accordance herewith). The Registration Statement required
hereunder shall contain (except if otherwise directed by the Holders)
substantially the “Plan of Distribution”
attached hereto as Annex
A. Subject to the terms of this Agreement, the Company shall
use its best 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 not later than the Effectiveness Date, and shall use
its best efforts to keep the Registration Statement continuously effective under
the Securities Act until the date when all Registrable Securities covered by the
Registration Statement have been sold or may be sold without volume restrictions
pursuant to Rule 144 (the “Effectiveness
Period”). In the event any Registrable Securities are excluded
from such Registration Statement due to the Rule 415 Interpretative Position,
the Registrable Securities to be excluded shall be allocated among all Holders
on a pro rata basis based on the total number of Registrable Securities proposed
to be included in such Registration Statement.
(b) In
the event the Rule 415 Interpretative Position limits the number of Registrable
Securities that may be registered on the Registration Statement, then as soon as
practicable following the sale of securities or the passage of time (as
appropriate in view of the Rule 415 Interpretative Position), the Company will
file one or more additional Registration Statements (each such Registration
Statement, a “Subsequent Registration
Statement”) registering the Registrable Securities not registered on the
Registration Statement but in an amount permissable under the Rule 415
Interpretative Position, until all of the Registrable Securities have been
registered. The Filing Date and Effectiveness Date of each such
Subsequent Registration Statement shall be, respectively, on or prior to the
thirtieth (30th) and
sixtieth (60th) day
after the first day such Subsequent Registration Statement may be filed without
objection by the SEC based on its Rule 415 Interpretative Position.
3
(c) If:
(i) a Registration Statement is not filed on or prior to the Filing Date (if the
Registration Statement is filed without affording the Holder the opportunity to
review and comment on the same as required by Section 3(a), the Company shall
not be deemed to have satisfied such filing requirement), or (ii) the Company
does not file with the Commission a request for acceleration in accordance with
Rule 461 promulgated under the Securities Act, within five Trading Days of the
date of notification (orally or in writing, whichever is earlier) by the
Commission that a Registration Statement will not be “reviewed,” or is not
subject to further review, or (iii) prior to the date when such Registration
Statement is first declared effective by the Commission, the Company fails to
cause the Company to file a pre-effective amendment and otherwise respond in
writing to comments made by the Commission in respect of such Registration
Statement within 21 calendar days after the receipt of comments by or notice
from the Commission that such amendment is required in order for a Registration
Statement to be declared effective (or within ten calendar days after the
Company’s accountants furnish the requisite financial statements, if later), or
(iv) a Registration Statement filed or required to be filed hereunder is not
declared effective by the Commission on or before the Effectiveness Date, or (v)
after a Registration Statement is first declared effective by the Commission, it
ceases for any reason to remain continuously effective as to all Registrable
Securities for which it is required to be effective, or the Holders are not
permitted to utilize the Prospectus therein to resell such Registrable
Securities, for in any such case 15 consecutive calendar days but no more than
an aggregate of 30 Trading Days during any 12 month period (which need not be
consecutive Trading Days) (any such failure or breach being referred to as an
“Event,” and
for purposes of clause (i) or (iv) the date on which such Event occurs, or for
purposes of clause (ii) the date on which such five Trading Day period is
exceeded, or for purposes of clause (iii) the date which such 21 calendar days
is exceeded, or for purposes of clause (v) the date on which such 30 calendar
day or 15 Trading Day period, as applicable, is exceeded being referred to as
“Event Date”),
then in addition to any other rights the Holders may have hereunder or under
applicable law: (x) on each such Event Date the parties agree that the
Shareholders will be obligated to immediately repurchase the shares of the
Company issued to the Acquiror Company as part of the Share Exchange from the
Acquiror Company for an amount equal to $3,000,000. Nothing in the
foregoing shall preclude Purchaser from pursuing or obtaining specific
performance or other equitable relief with respect to any breach or violation of
any of Company’s covenants to Purchaser or to recover the reasonable costs
(including attorneys’ fees and court costs) incurred in connection with the
enforcement of this Agreement. Notwithstanding the foregoing, no liquidated
damages shall accrue with respect to Registrable Securities consisting of
Warrants. If the Company fails to pay any partial liquidated
damages or payments required pursuant to this Section in full within
seven days after the date payable, the Company will pay interest thereon at a
rate of 18% per annum (or such lesser maximum amount that is permitted to be
paid by applicable law) to the Holder, accruing daily from the date such partial
liquidated damages or other payments are due until such amounts, plus all such
interest thereon, are paid in full. The partial liquidated damages or
other payments pursuant to the terms hereof shall apply on a daily pro-rata
basis for any portion of a month prior to the cure of an Event.
3. Registration
Procedures.
In
connection with the registration obligations in Section 2 hereof, the Company
shall:
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(a) Not
less than five Trading Days prior to
the filing of the Registration Statement or any related Prospectus or any
amendment or supplement thereto (i) furnish to the Holders copies of all such
documents proposed to be filed (including documents incorporated or deemed
incorporated by reference to the extent requested by such Person) which
documents will be subject to the review of such Holders and (ii) cause its
officers, directors, counsel and independent registered public accountants to
respond to such inquiries as shall be necessary, in the reasonable opinion of
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act. The Company shall not file the Registration
Statement or any such Prospectus or any amendments or supplements thereto to
which the Holders of a majority of the Registrable Securities shall reasonably
object in good faith, provided that the Company or the Company is notified of
such objection in writing no later than three Trading Days after the Holders
have been so furnished copies of such documents.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective as to the applicable Registrable Securities for the Effectiveness
Period and prepare and file with the Commission such additional Registration
Statements in order to register for resale under the Securities Act all of the
Registrable Securities; (ii) cause the related Prospectus to be amended or
supplemented by any required Prospectus supplement and, as so supplemented or
amended, to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably possible to any comments received from the Commission with respect to
the Registration Statement or any amendment thereto and, as promptly as
reasonably possible, upon request, provide the Holders true and complete copies
of all correspondence from and to the Commission relating to the Registration
Statement; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities as promptly as reasonably possible and
confirm such notice in writing promptly following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the Commission notifies
the Company whether there will be a “review” of the Registration Statement and
whenever the Commission comments in writing on the Registration Statement (the
Company shall cause the Company, upon request, to provide true and complete
copies thereof and all written responses thereto to each of the Holders); and
(C) with respect to the Registration Statement or any post-effective amendment,
when the same has become effective; (ii) of any request by the Commission or any
other Federal or state governmental authority during the period of effectiveness
of the Registration Statement for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the issuance by
the Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of the Registration Statement covering any or
all of the Registrable Securities or the initiation of any Proceedings for that
purpose; (iv) of 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 (v) of the occurrence of any
event or passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any statement made in
the 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 the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the 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; (vi) the occurrence or existence of any pending corporate
development with respect to the Company that the Company believes may be
material and that, in the determination of the Company, makes it not in the best
interest of the Company to allow continued availability of the Registration
Statement or Prospectus; provided that any and all of such information shall
remain confidential to each Holder until such information otherwise becomes
public, unless disclosure by a Holder is required by law; provided, further,
notwithstanding each Holder’s agreement to keep such information confidential,
the Holders make no acknowledgement that any such information is material,
non-public information.
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(d) Use
commercially reasonable efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of the Registration
Statement or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) Furnish
to each Holder, without charge, at least one conformed copy of the Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference to the extent requested by such Holder, and all exhibits to the extent
requested by such Holder (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the
Commission.
(f)
Promptly deliver to each Holder, without
charge, as many copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Holder may
reasonably request in connection their resales. Subject to the terms
of this Agreement, the Company hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto, except after the giving
on any notice pursuant to Section 3(c).
(g) Prior
to any resale of Registrable Securities by a Holder, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for the resale by
the Holder under the securities or Blue Sky laws of such jurisdictions within
the United States as any Holder reasonably requests in writing, to keep each
such registration or qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things reasonably
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, that the Company
shall not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified if qualification would subject the Company to
any material tax in any such jurisdiction where it is not then qualified or
subject it to file a general consent to service of process in any such
jurisdiction.
(h) If
requested by the Holders, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be delivered to a transferee pursuant to the Registration Statement, which
certificates shall be free, to the extent permitted by the Purchase Agreement
and applicable law, of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any such
Holders may request.
6
(i)
Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, neither the Registration Statement nor such
Prospectus will contain an untrue statement of a material fact or omit 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. If the Company notifies the Holders in accordance with clauses
(ii) through (v) of Section 3(c) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders
shall suspend use of such Prospectus. The Company shall use its best
efforts to ensure that the use of the Prospectus may be resumed as promptly as
is practicable. The Company shall be entitled to exercise its right
under this Section 3(i) to suspend the availability of a Registration Statement
and Prospectus, subject to the payment of liquidated damages pursuant to Section
2(b), for a period not to exceed 60 days (which need not be consecutive days) in
any 12 month period.
(j)
Comply with all applicable rules and
regulations of the Commission.
(k) Use
its commercially reasonable efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of (i) any order suspending the effectiveness of a
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction, at the earliest practicable moment.
(l)
The Company may require each Holder to furnish to the Company
a certified statement as to (i) the number of shares of Common Stock
beneficially owned by such Holder, (ii) if required by the Commission, the
holder thereof or the person that has voting and dispositive control over such
shares, (iii) any relationship between such Holder and the Company and (iv) such
other information regarding such Holder as shall be required by the Commission
or the National Association of Securities Dealers. If any such Holder
fails to furnish such information within five Trading Days of the Company’s
request, the Company shall furnish written notice of such non-compliance to such
Holder, the Placement Agent and the Placement Agent's counsel. If, for a
period of three Trading Days after such notice is given, such Holder continues
to fail to furnish such information, then (i) the Company shall no longer be
obligated to include any of such Holder's Registrable Securities as part of the
Registration Statement (provided,
however,
in the event such Holder provides such information to the Company prior to the
time when it files a request for acceleration, the Company shall register such
Holder's Registrable Securities as part of the Registration Statement) and (ii)
the Company shall have no obligation to pay any liquidated damages to such
Holder with respect to any Event. In the event that (i) the
immediately preceding sentence applies, (ii) subsequent to the filing of the
above-mentioned request for acceleration such Holder provides such information
to the Company and (iii) thereafter the Company files another registration
statement in which the Company may include such Holder's securities without
significant cost to the Company and with the consent of any applicable
underwriter, then the Company shall give notice to such Holder at least fifteen
(15) days in advance of filing such registration statement and shall use its
best efforts to include such Holder's Registrable Securities in such
registration statement in accordance with customary arrangements applicable to
piggyback registration rights.
(m) Notwithstanding
anything contained in this Agreement, following the first anniersary of the date
hereof the right of any Holder to request or demand inclusion in any
registration hereunder shall terminate as to Shares of Registrable Securities
held by such Holder that may be immediately sold without volume limitation under
Rule 144.
7
4. Registration
Expenses. All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne by the Company
whether or not any Registrable Securities are sold pursuant to the Registration
Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading and (B) in compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. In no event shall
the Company be responsible for any broker or similar commissions or, except to
the extent provided for in the Transaction Documents, any legal fees or other
costs of the Holders.
5. Indemnification.
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify and hold harmless each Holder, the officers,
directors, agents and employees of each of them, each Person who controls any
such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable attorneys’ fees) and expenses
(collectively, “Losses”), as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in the Registration Statement, any Prospectus or
any form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (i) such
untrue statements or omissions are based solely upon information regarding such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto (it being understood that the Holder has
approved Annex A hereto for this purpose) or (ii) in the case of an occurrence
of an event of the type specified in Section 3(c)(ii)-(vi), the use by such
Holder of an outdated or defective Prospectus after the Company has notified
such Holder in writing that the Prospectus is outdated or defective and prior to
the receipt by such Holder of the Advice contemplated in Section
6(d). The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
8
(b) Indemnification by
Holders. Each Holder included in a registration shall, severally and not
jointly, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person who controls the Company (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
directors, officers, agents or employees of such controlling Persons, to the
fullest extent permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or based solely upon: (x) such Holder’s
failure to comply with the prospectus delivery requirements of the Securities
Act or (y) any untrue or alleged untrue statement of a material fact contained
in any Registration Statement, any Prospectus, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading (i) to the extent, but only to the extent, that such untrue statement
or omission is contained in any information so furnished in writing by such
Holder to the Company specifically for inclusion in the Registration Statement
or such Prospectus or (ii) to the extent that (1) such untrue statements or
omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in the Registration
Statement (it being understood that the Holder has approved Annex A hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment or
supplement thereto or (2) in the case of an occurrence of an event of the type
specified in Section 3(c)(ii)-(vi), the use by such Holder of an outdated or
defective Prospectus after the Company has notified such Holder in writing that
the Prospectus is outdated or defective and prior to the receipt by such Holder
of the Advice contemplated in Section 6(d). In no event shall the
liability of any selling Holder hereunder be greater in amount than the dollar
amount of the net proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification
Proceedings. (i) If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”),
such Indemnified Party shall promptly notify the Person from whom indemnity is
sought (the “Indemnifying Party”)
in writing, and the Indemnifying Party shall have the right to assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any Indemnified
Party to give such notice shall not relieve the Indemnifying Party of its
obligations or liabilities pursuant to this Agreement, except (and only) to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
(ii) An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such Indemnified Party
shall reasonably believe that a material conflict of interest is likely to exist
if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of one
separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement
of any such Proceeding effected without its written consent, which consent shall
not be unreasonably withheld. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such
Proceeding.
9
(iii)
Subject to the terms of this Agreement, all reasonable fees and expenses of the
Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in a
manner not inconsistent with this Section) shall be paid to the Indemnified
Party, as incurred, within ten Trading Days of written notice thereof to the
Indemnifying Party; provided, that the Indemnified Party shall promptly
reimburse the Indemnifying Party for that portion of such fees and expenses
applicable to such actions for which such Indemnified Party is not entitled to
indemnification hereunder, determined based upon the relative faults of the
parties.
(d) Contribution. (i)
If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations
set forth in this Agreement, any reasonable attorneys’ or other reasonable fees
or expenses incurred by such party in connection with any Proceeding to the
extent such party would have been indemnified for such fees or expenses if the
indemnification provided for in this section was available to such party in
accordance with its terms.
(ii) The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
Holder shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds actually received by such Holder from the
sale of the Registrable Securities subject to the Proceeding exceeds the amount
of any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, except
in the case of fraud by such Holder.
(iii) The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
10
6. Miscellaneous
(a) Remedies. In
the event of a breach by the Company, on one hand, or by a Holder, on the other
hand, 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. The Company and each Holder each agrees that monetary
damages would not provide adequate compensation for any losses incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) No Piggyback on
Registrations. Except as set forth on Schedule 6(b), neither
the Company nor any of its security holders (other than the Holders in such
capacity pursuant hereto) may include securities of the Company other than the
Registrable Securities in a Registration Statement, and no Person has any right
to cause the Company to effect the registration under the Securities Act of any
securities of the Company. The Company shall not file any other
registration statement (other than on Form S-8) until after the Effective
Date.
(c) 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 offers
and sales of Registrable Securities pursuant to the Registration
Statement.
(d) 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 any event of the kind described in Section 3(c), such Holder will
forthwith discontinue disposition of such Registrable Securities under the
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 will use its best efforts to
ensure that the use of the Prospectus may be resumed as promptly as is
practicable. The Company agrees and acknowledges that any periods
during which the Holder is required to discontinue the disposition of the
Registrable Securities hereunder shall be subject to the provisions of Section
2(b).
(e) 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 the stock option or other employee
benefit plans, then the Company shall send to each Holder a written notice of
such determination and, if within fifteen days after the date 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, subject to customary underwriter cutbacks
applicable to all holders of registration rights.
11
(f) Rule 144 Compliance.
As long as any Holder owns any Registrable Securities, it will apply its best
efforts to file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act and if the
Company is not required to file reports pursuant to Section 13(a) or 15(d) of
the Exchange Act, it will prepare and furnish to the Holders and make publicly
available in accordance with Rule 144(c) promulgated under the Securities Act
annual and quarterly financial statements, together with a discussion and
analysis of such financial statements in form and substance substantially
similar to those that would otherwise be required to be included in reports
required by Section 13(a) or 15(d) of the Exchange Act, as well as any other
information required thereby, in the time period that such filings would have
been required to have been made under the Exchange Act.
(g) 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 Holders of not
less than two-thirds (2/3) of the then outstanding Registrable
Securities.
(h) Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be made in accordance with the provisions of the
Purchase Agreement.
(i)
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. Each Holder may assign
their respective rights hereunder only in the manner and to the Persons as
permitted under the Purchase Agreement.
(j) 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.
(k) Governing
Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to the principles of conflicts of law thereof.
(l)
Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(m) 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 commercially
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.
(n) Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
12
(o) Independent Nature of
Holders’ Obligations and Rights. The obligations of each
Holder hereunder are several and not joint with the obligations of any other
Holder hereunder, and no Holder shall be responsible in any way for the
performance of the obligations of any other Holder hereunder. Nothing
contained herein or in any other agreement or document delivered at any closing,
and no action taken by any Holder pursuant hereto or thereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Holders are in any way
acting in concert with respect to such obligations or the transactions
contemplated by this Agreement. Each Holder shall be entitled to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Holder to be
joined as an additional party in any proceeding for such purpose.
[Remainder
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13
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as
of the date first written above.
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FOREX
365, Inc.
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A
Nevada corporation
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By:
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Name: Zhang
Li
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Title: Chief
Executive Officer
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14
PURCHASER’S
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
Name of
Holder: Allied Merit
International Investment, Inc.
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By:
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Name: LIU GANG
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Title: Director
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Name of
Holder: Capital Soldier
Limited
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By:
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Name: Cui Xiao
Wei
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Title: Director
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15
ANNEX
A
Plan of
Distribution
The
Selling Stockholders (the “Selling
Stockholders”) of the common stock (“Common Stock”) of
FOREX 365, Inc. (the
“Company”) and
any of their pledgees, assignees and successors-in-interest may, from time to
time, sell any or all of their shares of Common Stock on any stock exchange,
market or trading facility on which the shares are traded or in private
transactions. These sales may be at fixed or negotiated
prices. The Selling Stockholders may use any one or more of the
following methods when selling shares:
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|
·
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ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
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·
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block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
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·
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
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|
·
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an
exchange distribution in accordance with the rules of the applicable
exchange;
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·
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privately
negotiated transactions;
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|
·
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settlement
of short sales entered into after the date of this
prospectus;
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|
·
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broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
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|
·
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a
combination of any such methods of
sale;
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|
|
·
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through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or otherwise;
or
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|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”), if
available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated. Each Selling Stockholder does not expect these
commissions and discounts relating to its sales of shares to exceed what is
customary in the types of transactions involved.
In
connection with the sale of Common Stock or interests therein, the Selling
Stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the Common
Stock in the course of hedging the positions they assume. The Selling
Stockholders may also sell shares of our Common Stock short and deliver these
securities to close out their short positions, or loan or pledge the Common
Stock to broker-dealers that in turn may sell these securities. The
Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery
to such broker-dealer or other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as supplemented or amended to reflect such
transaction).
16
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Each Selling
Stockholder has informed the Company that it does not have any agreement or
understanding, directly or indirectly, with any person to distribute the Common
Stock.
The
Company is required to pay certain fees and expenses incurred by the Company
incident to the registration of the shares. The Company has agreed to
indemnify the Selling Stockholders against certain losses, claims, damages and
liabilities, including liabilities under the Securities Act.
Because
Selling Stockholders may be deemed to be “underwriters” within the meaning of
the Securities Act, they will be subject to the prospectus delivery requirements
of the Securities Act. In addition, any securities covered by this
prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than under this prospectus. Each
Selling Stockholder has advised us that they have not entered into any
agreements, understandings or arrangements with any underwriter or broker-dealer
regarding the sale of the resale shares. There is no underwriter or
coordinating broker acting in connection with the proposed sale of the resale
shares by the Selling Stockholders.
We agreed
to keep this prospectus effective until the earlier of (i) the date on which the
shares may be resold by the Selling Stockholders without registration and
without regard to any volume limitations by reason of Rule 144(e) under the
Securities Act or any other rule of similar effect or (ii) all of the shares
have been sold pursuant to the prospectus or Rule 144 under the Securities Act
or any other rule of similar effect. The resale shares will be sold
only through registered or licensed brokers or dealers if required under
applicable state securities laws. In addition, in certain states, the resale
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Under
applicable rules and regulations under the Securities Exchange Act of 1934, as
amended, any person engaged in the distribution of the resale shares may not
simultaneously engage in market making activities with respect to our common
stock for a period of two business days prior to the commencement of the
distribution. In addition, the Selling Stockholders will be subject
to applicable provisions of the Exchange Act and the rules and regulations
thereunder, including Regulation M, which may limit the timing of purchases and
sales of shares of our common stock by the Selling Stockholders or any other
person. We will make copies of this prospectus available to the
Selling Stockholders and have informed them of the need to deliver a copy of
this prospectus to each purchaser at or prior to the time of the
sale.
17
Schedule
6(b)
Piggyback
Registrations
18