REGISTRATION RIGHTS
AGREEMENT
This Registration
Rights Agreement (this “Agreement”) is made and entered
into as of this 24 th day of August, 2008 by and among Remedent, Inc.,
a Nevada corporation (the “Company”), and Den-Mat
Holdings, LLC (the “Initial Investor”) pursuant to that
certain Distribution, License and Manufacturing Agreement by and
among the Company, Remedent, N.V, and Den-Mat Holdings, LLC (the
“DLMA”).
The parties hereby
agree as follows:
As used in this
Agreement, the following terms shall have the following
meanings:
“
Affiliate ” means, with respect to any person, any
other person which directly or indirectly controls, is controlled
by, or is under common control with, such person.
“
Business Day ” means a day, other than a Saturday or
Sunday, on which banks in New York City are open for the general
transaction of business.
“ Common
Stock ” shall mean the Company’s common stock, par
value $0.001 per share, and any securities into which such shares
may hereinafter be reclassified.
“
Investors ” shall mean the registered holders from
time to time of the Warrants and/or Registrable
Securities.
“
Person ” means a person or entity.
“
Prospectus ” shall mean the prospectus included in any
Registration Statement, 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 such
Registration Statement and by all other amendments and supplements
to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
“
Register ,” “ registered ” and
“ registration ” refer to a registration made by
preparing and filing a Registration Statement in compliance with
the 1933 Act (as defined below), and the declaration or ordering of
effectiveness of such Registration Statement or
document.
“
Registrable Securities ” or “ Registrable
Security ” shall mean (i) the Warrant Shares and
(ii) any other securities issued or issuable with respect to
or in exchange for Registrable Securities; provided, that, a
security shall cease to be a Registrable Security upon
(A) sale pursuant to a Registration Statement or Rule 144
under the 1933 Act, or (B) such security becoming eligible for
sale by the Investors without a volume limitation during a three
(3) month period pursuant to Rule 144.
“
Registration Statement ” shall mean any registration
statement of the Company filed under the 1933 Act that covers the
resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such
Registration Statement, including post-effective amendments, all
exhibits and all material incorporated by reference in such
Registration Statement.
“
Required Investors ” means the Investors holding a
majority of the Registrable Securities.
“ SEC
” means the U.S. Securities and Exchange
Commission.
“ 1933
Act ” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
“ 1934
Act ” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated
thereunder.
“
Warrants ” means the warrant to purchase an aggregate
of 3,378,379 shares of Common Stock, dated concurrently with this
Agreement, issued by the Company to the Initial Investor and any
replacement or successor warrants issued in accordance with the
terms thereof.
“ Warrant
Shares ” means the shares of Common Stock issuable upon
the exercise of the Warrants.
(a)
Registration Statements .
(i) Within
seventy-five (75) days after the date of this Agreement (the
“Filing Deadline”), the Company shall prepare and file
with the SEC a Registration Statement on Form S-3 (or, if Form S-3
is not then available to the Company, on such form of registration
statement as is then available to effect a registration for resale
of the Registrable Securities), covering the resale of the
Registrable Securities in an amount at least equal to the Warrant
Shares. Such Registration Statement also shall cover, to the extent
allowable under the 1933 Act and the rules promulgated thereunder
(including Rule 416), such indeterminate number of additional
shares of Common Stock resulting from stock splits, stock dividends
or similar transactions with respect to the Registrable Securities.
The Registration Statement (and each amendment or supplement
thereto, and each request for acceleration of effectiveness
thereof) shall be provided in accordance with Section 3(c) to
counsel for the Initial Investor prior to its filing or other
submission.
(ii)
Additional Registrable Securities . Upon any change in the
Warrant Price (as defined in the Warrant) such that additional
shares of Common Stock become issuable upon the exercise of the
Warrants, upon the written demand of any Investor the Company shall
prepare and file with the SEC within thirty (30) days after
such demand one or more Registration Statements on Form S-3 or
amend the Registration Statement filed pursuant to clause
(i) above, if such Registration Statement has not previously
been declared effective (or, if Form S-3 is not then available to
the Company, on such form of registration statement as is then
available to effect a registration for resale of such additional
shares of Common Stock (the “Additional Shares”))
covering the resale of the Additional Shares, but only to the
extent the Additional Shares are not at the time covered by an
effective Registration Statement. Such Registration Statement also
shall cover, to the extent allowable under the 1933 Act and the
rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting
from stock splits, stock dividends or similar transactions with
respect to the Additional Shares. The Registration Statement (and
each amendment or supplement thereto, and each request for
acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Investors’ counsel prior
to its filing or other submission.
(iii)
S-3 Qualification . If the Registration Statement is not
initially filed on Form S-3, then promptly following the date (the
“Qualification Date”) upon which the Company becomes
eligible to use a registration statement on Form S-3 to register
the Registrable Securities or Additional Shares, as applicable, for
resale, but in no event more than thirty (30) days after the
Qualification Date (the “Qualification Deadline”), the
Company shall file a registration statement on Form S-3 covering
the Registrable Securities or Additional Shares, as applicable (or
a post-effective amendment on Form S-3 to the then effective
Registration Statement) (a “Shelf Registration
Statement”) and shall use commercially reasonable efforts to
cause such Shelf Registration Statement to be declared effective as
promptly as practicable thereafter.
(b)
Expenses . The Company will pay all expenses associated with
each registration, including filing and printing fees, the
Company’s counsel and accounting fees and expenses, costs
associated with clearing the Registrable Securities for sale under
applicable state securities laws, listing
fees, fees and
expenses of counsel to the Investors and the Investors’
reasonable expenses in connection with the registration, but
excluding discounts, commissions, fees of underwriters, selling
brokers, dealer managers or similar securities industry
professionals with respect to the Registrable Securities being
sold.
(i) The
Company shall use commercially reasonable efforts to have the
Registration Statement declared effective as soon as practicable.
The Registration Statement shall be declared effective by the SEC
within (i) five (5) Business Days after the SEC shall
have informed the Company that no review of the Registration
Statement will be made or (ii) within one hundred thirty five
(135) days after the date of this Agreement (one hundred sixty
five (165) days if the Registration Statement is reviewed by
the SEC), and each Registration Statement covering Additional
Shares shall be declared effective by the SEC within ninety
(90) days following the time such Registration Statement was
required to be filed pursuant to Section 2(a)(ii)
(120 days if the Registration Statement is reviewed by the
SEC) and any Shelf Registration Statement shall be declared
effective by the SEC within ninety (90) days after the
Qualification Deadline (120 days if the Registration Statement
is reviewed by the SEC). The Company shall notify the Investors by
facsimile or e-mail as promptly as practicable, and in any event,
within twenty-four (24) hours, after any Registration
Statement is declared effective and shall simultaneously provide
the Investors with copies of any related Prospectus to be used in
connection with the sale or other disposition of the securities
covered thereby.
(ii) For
not more than twenty (20) consecutive days or for a total of
not more than forty-five (45) days in any twelve
(12) month period, the Company may delay the disclosure of
material non-public information concerning the Company, by
suspending the use of any Prospectus included in any registration
contemplated by this Section containing such information, the
disclosure of which at the time is not, in the good faith opinion
of the Board of Directors of the Company (as set forth in a
resolution of the Board of Directors), in the best interests of the
Company (an “Allowed Delay”); provided, that the
Company shall promptly (a) notify the Investors in writing of
the existence of (but in no event, without the prior written
consent of an Investor, shall the Company disclose to such Investor
any of the facts or circumstances regarding) material non-public
information giving rise to an Allowed Delay, (b) advise the
Investors in writing to cease all sales under the Registration
Statement until the end of the Allowed Delay and (c) use
commercially reasonable efforts to terminate an Allowed Delay as
promptly as practicable.
3.
Company Obligations . The Company will use commercially
reasonable efforts to effect the registration of the Registrable
Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible:
(a) use
commercially reasonable efforts to cause such Registration
Statement to become effective and to remain continuously effective
for a period that will terminate upon the earlier of (i) the
date on which all Registrable Securities covered by such
Registration Statement as amended from time to time cease to be
Registrable Securities (the “Effectiveness Period”) and
advise the Investors in writing when the Effectiveness Period has
expired;
(b) prepare
and file with the SEC such amendments and post-effective amendments
to the Registration Statement and the Prospectus as may be
necessary to keep the Registration Statement effective for the
Effectiveness Period and to comply with the provisions of the 1933
Act and the 1934 Act with respect to the distribution of all of the
Registrable Securities covered thereby;
(c) provide
copies to and permit counsel designated by the Investors and
acceptable to the Company to review each Registration Statement no
fewer than five (5) business days prior to its
filing with the
SEC and each amendment and supplement thereto no fewer than three
(3) Business Days prior to its filing with the SEC, and not
file any document to which such counsel reasonably
objects;
(d) furnish
to the Investors’ legal counsel (i) promptly after the
same is prepared and publicly distributed, filed with the SEC or
received by the Company (but not later than two (2) Business Days
after the filing date, receipt date or sending date, as the case
may be) one (1) copy of any Registration Statement and any
amendment thereto, each preliminary prospectus and Prospectus and
each amendment or supplement thereto, and each letter written by or
on behalf of the Company to the SEC or the staff of the SEC, and
each item of correspondence from the SEC or the staff of the SEC,
in each case relating to such Registration Statement (other than
any portion of any thereof which contains information for which the
Company has sought confidential treatment), and (ii) such
number of copies of a Prospectus, including a preliminary
prospectus, and all amendments and supplements thereto and such
other documents as each Investor may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by
such Investor that are covered by the related Registration
Statement;
(e) use
commercially reasonable efforts to (i) prevent the issuance of
any stop order or other suspension of effectiveness and,
(ii) if such order is issued, obtain the withdrawal of any
such order at the earliest possible moment;
(f) prior
to any public offering of Registrable Securities, use commercially
reasonable efforts to register or qualify or cooperate with the
Investors and their 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
requested by the Investors and do any and all other commercially
reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities
covered by the Registration Statement ; provided, however,
that the Company shall not be required in connection therewith or
as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this Section 3(f), (ii) subject itself to general
taxation in any jurisdiction where it would not otherwise be so
subject but for this Section 3(f), or (iii) file a
general consent to service of process in any such
jurisdiction;
(g) use
commercially reasonable efforts to cause all Registrable Securities
covered by a Registration Statement to be listed on each securities
exchange, interdealer quotation system or other market on which
similar securities issued by the Company are then
listed;
(h) immediately
notify the Investors, at any time when a Prospectus relating to
Registrable Securities is required to be delivered under the 1933
Act, upon discovery that, or upon the happening of any event as a
result of which, the Prospectus included in a Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and at the
request of any such holder, promptly prepare and furnish to such
holder a reasonable number of copies of a supplement to or an
amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such Prospectus shall not include 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 not
misleading in light of the circumstances then existing;
and
(i) otherwise
use commercially reasonable efforts to comply with all applicable
rules and regulations of the SEC under the 1933 Act and the 1934
Act, take such other actions as may be reasonably necessary to
facilitate the registration of the
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