Attached files
| file | filename |
|---|---|
| 8-K - Thwapr, Inc. | v179918_8k.htm |
| EX-3.1 - Thwapr, Inc. | v179918_ex3-1.htm |
| EX-99.2 - Thwapr, Inc. | v179918_ex99-2.htm |
| EX-10.4 - Thwapr, Inc. | v179918_ex10-4.htm |
| EX-10.5 - Thwapr, Inc. | v179918_ex10-5.htm |
| EX-99.1 - Thwapr, Inc. | v179918_ex99-1.htm |
| EX-10.8 - Thwapr, Inc. | v179918_ex10-8.htm |
| EX-10.7 - Thwapr, Inc. | v179918_ex10-7.htm |
| EX-10.6 - Thwapr, Inc. | v179918_ex10-6.htm |
| EX-10.4(A) - Thwapr, Inc. | v179918_ex10-4a.htm |
| EX-99.3 - Thwapr, Inc. | v179918_ex99-3.htm |
Exhibit
10.9
REGISTRATION
RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of March
29, 2010, by and among Seaospa, Inc., a Nevada corporation (the “Company”), and each of the
undersigned (individually a “Holder” and collectively, the
“Holders”).
WHEREAS:
A. In connection with a Share Exchange
Agreement by and among the parties hereto of even date herewith (the
“Exchange
Agreement”), the holders
of outstanding equity securities of Thwapr, Inc., a Delaware corporation
(“Thwapr”), shall
acquire approximately 90% of the issued and outstanding common stock of the
Company and Thwapr shall be come a wholly-owned subsidiary of the
Company.
B. The
Holders are current stockholders of the Company, and will remain stockholders of
the Company following the closing of the Exchange Agreement.
C. The
Company has agreed, upon the terms and subject to the conditions contained
herein, to provide the Holders with certain registration rights with respect to
the number of shares of the Company’s common stock set forth on Exhibit A hereto (the
“Common
Shares”).
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and each of the Holders hereby agree as
follows:
1. DEFINITIONS.
a. As
used in this Agreement, the following terms shall have the following
meanings:
(i) “Holders” means the Holders and
any transferee or assignee who agrees to become bound by the provisions of this
Agreement in accordance with Section 6 hereof.
(ii) “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing a Registration Statement in
compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any
successor rule providing for offering securities on a continuous basis (“Rule 415”), and the
declaration or ordering of effectiveness of such Registration Statement by the
United States Securities and Exchange Commission (the “SEC”).
(iii) “Registrable Securities” means
the Common Shares.
(iv) “Registration Statement” means
a registration statement of the Company under the 1933 Act.
2. REGISTRATION.
a. If
the Company shall determine to register any of its securities for account of a
security holder or holders acquiring shares of common stock (“Financing Shares”) of the
Company in one or more financings within twelve (12) months after the date
hereof the Company will use commercially reasonable best efforts to include in
such Registration Statement covering the resale of the Registrable Securities,
and use commercially reasonable efforts to cause the Registration Statement
declared effective; provided, however, that the amount of Registrable Securities
(excluding the Registrable Securities held by Yossi Benitah and Yakov Terner) to
be included in the Registration Statement shall be limited to not less than 100%
of the maximum amount of the Registrable Securities which may be included in a
single registration statement without exceeding registration limitations imposed
the SEC pursuant to Rule 415, provided, further, that the amount of Registrable
Securities held by Yossi Benitah and Yakov Terner to be included in the
Registration Statement shall be limited to the extent of any registration
limitations imposed by the SEC pursuant to Rule 415, and provided, further, that
the Company shall not be obligated to the Holders for any penalties or damages,
liquidated or otherwise, if the Registration Statement is not declared
effective.
b. Except
as specifically otherwise set forth herein, any registration pursuant to Section
2.a, will be on the terms and conditions (including termination, cut backs,
etc.) agreed upon between the Company and the holders of Financing Shares as if
the Holders were holders of Financing Shares.
c. The
Company will pay all expenses associated with the registration,
including, without limitation, filing and printing fees, and the Company’s
counsel and accounting fees and expenses and costs, if any, associated with
clearing the Registrable Securities for sale under applicable state securities
laws, but not any fees or expenses of the Holders, including any counsel to the
Holders.
d. The
Company will use commercially reasonable efforts to cause the Registration
Statement to remain continuously effective for a period (the “Effectiveness Period”) that
will terminate upon the earlier of (x) the date on which all the Registrable
Securities covered by the Registration Statement have been sold or (y) the date
on which all the Registrable Securities covered by the Registration Statement
may be sold immediately without registration under the Securities Act and
without volume restrictions pursuant to Rule 144(b), as determined by reputable
United States securities counsel to the Company pursuant to a written opinion
letter to such effect, addressed and acceptable to the Company’s transfer agent
and the affected Holder,
and will
advise the Holders when the Effectiveness Period has expired with respect to the
Holders.
3. OBLIGATIONS OF THE
HOLDERS.
In
connection with the registration of the Registrable Securities, the Holders
shall have the following obligations:
2
a. It
shall be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required to effect the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the
Company may reasonably request.
b. Each
Holder, by such Holder’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of any Registration Statement hereunder, unless
such Holder has notified the Company in writing of such Holder’s election to
exclude all of such Holder’s Registrable Securities from any Registration
Statement.
c. Each
Holder agrees to immediately discontinue disposition of Registrable Securities
pursuant to any registration statement upon notice from the Company of (x) the
issuance of any stop order or other suspension of effectiveness of any
Registration Statement by the SEC, or the suspension of the qualification of any
of the Registrable Securities for sale in any jurisdiction by the applicable
regulatory authorities or (y) the happening of any event, as promptly as
practicable after becoming aware of such event, as a result of which the
prospectus included in any Registration Statement, as then in effect, includes
an untrue statement of a material fact or omission 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 or
(z) the failure of the prospectus included in any Registration Statement,
as then in effect, to comply with the requirements of the Securities Act, until
the Holder’s receipt of a supplemented or amended prospectus or receipt of
notice that no supplement or amendment is required.
4. INDEMNIFICATION.
In the
event of a registration of any Registrable Securities under this
Agreement:
a. The
Company will, to the extent permitted by law, indemnify and hold harmless each
Holder, its officers, directors and other person, if any, who controls such
Holder within the meaning of the 1933 Act, against any losses, claims, damages
or liabilities, joint or several, to which such Holder or such controlling
person may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances when made,
and will subject to the provisions of Section 4.c reimburse such Holder and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable to
such Holder or any such controlling person to the extent that any such damages
arise out of or are based upon an untrue statement or omission made in any
preliminary prospectus if (i) such Holder failed to send or deliver a copy of
the final prospectus delivered by the Company to such Holder with or prior to
the delivery of written confirmation of the sale by such Holder to the person
asserting the claim from which such damages arise, (ii) the final prospectus
would have corrected such untrue statement or alleged untrue statement or such
omission or alleged omission, or (iii) to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any Holder or any controlling person in writing
specifically for use in any Registration Statement or prospectus.
3
b. Each
Holder severally but not jointly will, to the extent permitted by law, indemnify
and hold harmless the Company, and each person, if any, who controls the Company
within the meaning of the 1933 Act, each officer of the Company who signs a
Registration Statement, and each director of the Company, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer, director or controlling person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that such Holder will be liable hereunder in any such case if
and only to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to such Holder, as such, furnished in writing to the Company by such
Holder specifically for use in any Registration Statement or prospectus, and
provided, further, however, that the liability of such Holder hereunder shall be
limited to the net proceeds actually received by such Holder from the sale of
Registrable Securities covered by a Registration Statement.
c. Promptly
after receipt by an indemnified party hereunder of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party hereunder, notify the indemnifying party in
writing thereof, but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to such indemnified party other
than under this Section 4.c and shall only relieve it from any liability which
it may have to such indemnified party under this Section 4.c except and only if
and to the extent the indemnifying party is prejudiced by such omission. In case
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 4.c for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified parties, as a group,
shall have the right to select one separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as
incurred.
4
5. CONTRIBUTION.
To the
extent any indemnification by an indemnifying party is prohibited or limited by
law, the indemnifying party agrees to make the maximum contribution with respect
to any amounts for which it would otherwise be liable under Section 4 to the
fullest extent permitted by law; provided, however, that no contribution
shall be made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 4, no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any seller of Registrable Securities who was not guilty of such fraudulent
misrepresentation, and contribution (together with any indemnification or other
obligations under this Agreement) by any seller of Registrable Securities shall
be limited in amount to the net amount of proceeds received by such seller from
the sale of such Registrable Securities.
6. ASSIGNMENT OF REGISTRATION
RIGHTS.
The
rights under this Agreement shall be automatically assignable by the Holders to
any transferee of all or any portion of Registrable Securities if: (i) the
Holder agrees in writing with the transferee or assignee to assign such rights,
and a copy of such agreement is furnished to the Company within a reasonable
time after such assignment, (ii) the Company is, within a reasonable time
after such transfer or assignment, furnished with written notice of the
name and address of such transferee or assignee, and the securities with
respect to which such registration rights are being transferred or assigned,
(iii) following such transfer or assignment, the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act and
applicable state securities laws, (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence, the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein, (v) such transfer shall have been made in
accordance with the applicable requirements of the Purchase Agreement, and (vi)
such transferee shall be an “accredited investor” as that
term defined in Rule 501 of Regulation D promulgated under the 1933
Act.
7. AMENDMENT OF REGISTRATION
RIGHTS.
Provisions
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with written consent of the Company, and Holders who in the
aggregate hold 25% of the Registrable Securities. Any amendment or
waiver effected in accordance with this Section 7 shall be binding upon each
Holder and the Company.
5
8. MISCELLANEOUS.
a. A
person or entity is deemed to be a holder of Registrable Securities whenever
such person or entity owns of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or election received
from the registered owner of such Registrable Securities.
b. Any
and all notices and other communications hereunder shall be in writing and shall
be deemed duly given to the party to whom the same is so delivered, sent or
mailed at addresses and contact information set forth on the signature pages
hereto (or at such other address for a party as shall be specified by like
notice.) Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be deemed given and
effective on the earliest of: (a) on the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (Pacific Standard Time)
on a business day, (b) on the next business day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number set forth on the signature pages attached hereto on a day that is not a
business day or later than 5:30 p.m. (Pacific Standard Time) on any business
day, (c) on the second business day following the date of mailing, if sent by a
nationally recognized overnight courier service, or (d) if by personal delivery,
upon actual receipt by the party to whom such notice is required to be
given..
c. Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
d.
THIS AGREEMENT SHALL BE ENFORCED, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEVADA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS. THE PARTIES HERETO HEREBY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE UNITED STATES FEDERAL COURTS LOCATED IN LAS VEGAS, NEVADA,
WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT, THE AGREEMENTS ENTERED
INTO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
BOTH PARTIES IRREVOCABLY WAIVE THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH SUIT OR PROCEEDING. BOTH PARTIES FURTHER AGREE
THAT SERVICE OF PROCESS UPON A PARTY MAILED BY FIRST CLASS MAIL SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE PARTY IN ANY SUCH SUIT OR
PROCEEDING. NOTHING HEREIN SHALL AFFECT EITHER PARTY’S RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. BOTH PARTIES AGREE THAT
A FINAL NON-APPEALABLE JUDGMENT IN ANY SUCH SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT
OR IN ANY OTHER LAWFUL MANNER. THE PARTY WHICH DOES NOT PREVAIL IN
ANY DISPUTE ARISING UNDER THIS AGREEMENT SHALL BE RESPONSIBLE FOR ALL FEES AND
EXPENSES, INCLUDING ATTORNEYS’ FEES, INCURRED BY THE PREVAILING PARTY IN
CONNECTION WITH SUCH DISPUTE.
6
e. In
the event that any provision of this Agreement is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision
hereof which may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision hereof.
f. This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
g. Subject
to the requirements of Section 6 hereof, this Agreement shall be binding upon
and inure to the benefit of the parties and their successors and
assigns.
h. The
headings in this Agreement are for convenience of reference only and shall not
form part of, or affect the interpretation of, this Agreement.
i. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a
party, may be delivered to the other party hereto by facsimile transmission of a
copy of this Agreement bearing the signature of the party so delivering this
Agreement.
j. Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
k. Except
as otherwise provided herein, all consents and other determinations to be made
by the Holders pursuant to this Agreement shall be made by Holders holding a
majority of the Registrable Securities.
l. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the
Company and the undersigned Holders have caused this Agreement to be duly
executed as of the date first above written.
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Address for Notices:
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SEAOSPA,
INC.
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220
12th
Avenue, 3rd
Floor
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New
York, New York 10001
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Attention: Barry
Hall
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Facsimile
No.: (212) 537-5804
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By:
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Name:
Barry Hall
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Title: Chief
Financial Officer
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8
HOLDERS:
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Address for Notices:
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Yossi
Benitah
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facsimile:
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Yakov
Terner
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facsimile:
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Yaron
Borenstein
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facsimile:
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Ophir
Even
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facsimile:
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Bronia
Fruhter
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facsimile:
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Gideon
Reifman
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facsimile:
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9
Exhibit
A
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Holder
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Number of Common Shares
|
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Yossi
Benitah
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1,500,000
|
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Yakov
Terner
|
1,500,000
|
|
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Yaron
Borenstein
|
241,800
|
|
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Ophir
Even
|
227,500
|
|
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Bronia
Fruhter
|
258,000
|
|
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Gideon
Reifman
|
278,867
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