EXHIBIT 10.20.22
EXHIBIT A TO PRIVATE
EQUITY AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement"), dated as of February 22,
2002, is made by and between EUROTECH , LTD., a corporation organized and
existing under the laws of the District of Columbia (the "Company"), and XXXXX &
XXXXXXXX, LTD. an entity organized and existing under the laws of the
Commonwealth of the Bahamas (the "Investor").
Recitals
WHEREAS, upon the terms and subject to the conditions of the Private Equity
Agreement ("Equity Agreement"), between the Investor and the Company, the
Company has agreed to issue and sell to the Investor and the Investor has agreed
to purchase up to Ten Million Dollars ($10,000,000) of the common stock of the
Company, par value$.00025 per share (the "Common Stock")(such shares of Common
Stock, the "Subscribed Shares"), and
WHEREAS, to induce the Investor to execute and deliver the Equity
Agreement, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, "Securities Act"),
and applicable state securities laws with respect to the Subscribed 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 the Investor
hereby agree as follows:
1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the following
meanings:
(i) "Potential Material Event" means any of the following: (a) the
possession by the Company of material information not ripe for disclosure in a
Registration Statement, which shall be evidenced by a determination in good
faith by the Board of Directors of the Company that disclosure of such
information in the Registration Statement would be detrimental to the business
and affairs of the Company, or (b) any material engagement or activity by the
Company which would, in the good faith determination of the Board of Directors
of the Company, be adversely affected by disclosure in a Registration Statement
at such time, which determination shall be accompanied by a good faith
determination by the Board of Directors of the Company that the Registration
Statement would be materially misleading absent the inclusion of such
information.
(ii) "Subscription Date" means the date of this Agreement.
(iii) "Investor", has the meaning set forth in the preamble to this
Agreement.
(iv) "Register", "registered" and "registration" refer to a registration
effected by preparing and filing a Registration Statement or Statements in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a delayed or
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").
(v) "Registrable Securities" means the Subscribed Shares. and the Warrant
Shares issuable pursuant to Section 2.6 of the Equity Agreement.
(vi) "Registration Statement" means a registration statement of the Company
under the Securities Act. (b) Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Equity
Agreement or in the Rules of the SEC.
2. REGISTRATION.
(a) MANDATORY REGISTRATION. The Company shall prepare and file with the
SEC, at such time after the Subscription Date as it shall determine in its
discretion, a Registration Statement on Form S-3 (if use of such form is then
available to the Company pursuant to the rules of the SEC and, if not, on such
form promulgated by the SEC for which the Company then qualifies and which
counsel for the Company shall deem appropriate for the offering of the
Registrable Securities), registering for distribution by the Investor, pursuant
to Rule 457(o), if permitted, no less than 112% of the Maximum Commitment Amount
under the Equity Agreement (the "Initial Registrable Securities"). Such
Registration Statement shall state that, in accordance with Rules 416 and 457
under the Securities Act, it also covers such indeterminate number of additional
shares of Common Stock as may become issuable to prevent dilution resulting from
stock splits, or stock dividends.
(b) Failure to Maintain Effectiveness Of A Registration Statement. In the
event the Company fails to maintain the effectiveness of any Registration
Statement (or the underlying prospectus), including the payment of all necessary
fees, during the Registration Period (as defined below), other than temporary
suspensions permitted by Section 3(i), and the Investor holds any Put Shares
included in the Registration Statement at any time during such period, the
Company shall at the Investor's option, if permitted by applicable law, promptly
redeem the Put Shares at 111% of the Investment Amount or pay to the Investor
liquidated damages in immediately available funds into an account designated by
the Investor an amount equal to two percent (2%) of the aggregate Investment
Amount of Put Shares, resulting from any Put Notice, if any, then held by the
Investor for each thirty (30) calendar day period (prorated for partial
periods).
3. OBLIGATION OF THE COMPANY. In connection with the registration of the
Registrable Securities, the Company shall do each of the following:
(a) Prepare and file with the SEC, a Registration Statement with respect to
not less than the number of Registrable Securities provided in Section 2(a)
above, and, thereafter, use all diligent efforts to cause the Registration
Statement relating to the Registrable Securities to become effective, and keep
the Registration Statement effective at all times until the earliest of (i) the
date that is eighteen (18) months after the last Closing Date under the Equity
Agreement, (ii) the date when the Investor may sell all Registrable Securities
under Rule 144(k) without volume limitations, or (iii) the date the Investor no
longer owns any of the Registrable Securities (collectively, the "Registration
Period"), which Registration Statement (including any amendments or supplements,
thereto and prospectuses contained therein) shall not contain any 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 the light of the
circumstances under which they were made, not misleading;
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(b) Prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as may be necessary to keep
the Registration Statement effective at all times during the Registration
Period, and, during the Registration Period, and to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable
Securities of the Company covered by the Registration Statement until the
expiration of the Registration Period. The Company shall not be deemed to have
complied with its obligations under this paragraph to keep the Registration
Statement effective during the Registration Period if it voluntarily takes any
action that would result in the Investors not being able to sell all of the
Registrable Securities covered by such Registration Statement during the
Registration Period, unless such action is required under applicable law or the
Company has filed a post-effective amendment to the Registration Statement and
the Commission has not declared it effective..
(c) Permit a single firm of counsel designated by Investor to review the
Registration Statement and all amendments and supplements thereto a reasonable
period of time (but not less than five (5) Business Days) prior to their filing
with the SEC, and not file any document in a form to which such counsel
reasonably objects.
(d) Notify Investor and Investor's legal counsel identified to the Company
(which, until further notice, shall be deemed to be Xxxxxxx & Xxxxxx, LLP, ATTN:
Xxxxxx Xxxxxxx, Esq.; "INVESTOR'S COUNSEL") (and, in the case of (i)(A) below,
not less than five (5) Business Day prior to such filing) and (if requested by
any such person) confirm such notice in writing no later than one (1) Business
Day 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) whenever the SEC notifies the Company whether there will be a "review" of
such Registration Statement; 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 SEC or any other Federal or state governmental authority for
amendments or supplements to the Registration Statement or the prospectus or for
additional information; (iii) of the issuance by the SEC 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) if at any time any of the representations or warranties of the
Company contained in the Equity Agreement ceases to be true and correct in all
material respects; (v) 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 (vi) of the
occurrence of any event that to the knowledge of the Company makes any statement
made in the Registration Statement or the prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
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material respect or that requires any revisions to the Registration Statement,
the 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 the light of the
circumstances under which they were made, not misleading.
(e) Furnish to Investor, (i) promptly after the same is prepared and
publicly distributed, filed with the SEC, or received by the Company, one (1)
copy of the Registration Statement, each preliminary prospectus and the
prospectus, each amendment or supplement thereto, all correspondence to, with,
or from the SEC, and (ii) such number of copies of a prospectus, [including a
preliminary prospectus], and all amendments and supplements thereto and such
other documents, as the Investor may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by the Investor;
(f) Use all diligent efforts to (i) register and/or qualify the Registrable
Securities covered by the Registration Statement under such other securities or
blue sky laws of such jurisdictions as the Investor may reasonably request and
in which significant volumes of shares of Common Stock are traded, (ii) prepare
and file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof at all times during the
Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualification in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions:
PROVIDED, HOWEVER, that the Company shall not be required in connection
therewith or as a condition thereto to (A) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(f), (B) subject itself to general taxation in any such jurisdiction,
(C) file a general consent to service of process in any such jurisdiction, (D)
provide any undertakings that cause more than nominal expense or burden to the
Company or (E) make any change in its charter or by-laws or any then existing
contracts, which in each case the Board of Directors of the Company determines
to be contrary to the best interests of the Company and its stockholders;
(g) As promptly as practicable after becoming aware of such event, notify
the Investor of the happening of any event of which the Company has knowledge,
as a result of which the prospectus included in the Registration Statement, as
then in effect, includes any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading ("Registration Default"), and use its best efforts to
promptly prepare a supplement or amendment to the Registration Statement or
other appropriate filing with the SEC to correct such untrue statement or
omission, and any other necessary steps to cure the Registration Default, and
deliver a number of copies of such supplement or amendment to the Investor as
the Investor may reasonably request. Failure to cure the Registration Default
within thirty (30) business days shall result in the Company incurring a
liquidated damage penalty of an amount equal to two percent (2%) of the
aggregate Investment Amount of Put Shares, resulting from any Put Notice, if
any, then held by the Investor for each thirty (30) calendar day period
(prorated for partial periods), for so long as more than 10,000 shares of Common
Stock are held by the Investor;
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(h) As promptly as practicable after becoming aware of such event, notify
the Investor (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by the SEC of any notice of effectiveness or any
stop order or other suspension of the effectiveness of the Registration
Statement at the earliest possible time;
(i) Notwithstanding the foregoing, if at any time or from time to time
after the date of effectiveness of the Registration Statement, the Company
notifies Investor in writing of the existence of a Potential Material Event
("Blackout Notice"), Investor shall not offer or sell any Registrable
Securities, or engage in any other transaction involving or relating to the
Registrable Securities, from the time of the giving of notice with respect to a
Potential Material Event until Investor receives written notice from the Company
that such Potential Material Event either has been disclosed to the public or no
longer constitutes a Potential Material Event ("Blackout Period"); PROVIDED,
HOWEVER, that (a) the Company may not so suspend or delay the right of the
Investor to sell the Registrable Securities for more than two five (5) day
periods in the aggregate during any 12-month period with at least a ten (10)
Business Day interval between such periods, during the periods the Registration
Statement is required to be in effect, and PROVIDED FURTHER that the Company
shall, if lawful to do so, provide the Investor with at least two (2) business
days' notice of the existence but not the substance) of a Potential Material
Event.
(j) Use its reasonable efforts, if eligible, either to (i) cause all the
Registrable Securities covered by the Registration Statement to be listed on a
national securities exchange and on each additional national securities exchange
on which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) cause all the Registrable Securities
covered by the Registration Statement[to be listed on the NASDAQ Small Cap
Market; or if, despite the Company's commercially reasonable efforts to satisfy
the preceding clause (i) or (ii), the Company is unsuccessful in doing so, to
secure NASD authorization and quotation for such Registrable Securities on the
OTC Bulletin Board and, without limiting the generality of the foregoing, to
arrange for at least two market makers to register with the National Association
of Securities Dealers, Inc. ("NASD") as such with respect to such Registrable
Securities.
(k) Provide a transfer agent for the Registrable Securities not later than
the Effective Date of the Registration Statement;
(l) Cooperate with the Investor to facilitate the timely preparation and
delivery of certificates for the Registrable Securities to be offered pursuant
to the Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts as the case may be, as the
Investor may reasonably request and registration in such names as the Investor
may reasonably request; and, within five (5) business days after a Registration
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Statement which includes Registrable Securities is ordered effective by the SEC,
the Company shall deliver, and shall cause legal counsel selected by the Company
to deliver, to the transfer agent for the Registrable Securities (with copies to
the Investor) an appropriate instruction and opinion of such counsel, if so
required by the Company's transfer agent; and
(m) Comply with all applicable rules and regulations of the Commission and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 not later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to underwriters
in a firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of the Registration
Statement, which statement shall cover said 12-month period, or end shorter
periods as is consistent with the requirements of Rule 158.
(n) Take all other reasonable actions necessary to expedite and facilitate
distribution to the Investor of the Registrable Securities pursuant to the
Registration Statement.
4. OBLIGATIONS OF THE INVESTOR. In connection with the registration of the
Registrable Securities, the Investor shall have the following obligations;
(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 the Investor that the Investor shall timely 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 timely execute such documents in connection
with such registration as the Company may reasonably request If the Registration
Statement refers to any Investor by name or otherwise as the holder of any
securities of the Company, then such Investor shall have the right to require
(i) the inclusion therein of language, in form and substance reasonably
satisfactory to such Investor, to the effect that the ownership by such Investor
of such securities is not to be construed as a recommendation by such Investor
of the investment quality of the Company's securities covered thereby and that
such ownership does not imply that such Investor will assist in meeting any
future financial requirements of the Company, or (ii) if such reference to such
Investor by name or otherwise is not required by the Securities Act or any
similar Federal statute then in force, the deletion of the reference to such
Investor in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
(b) The Investor by such Investor'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 the Registration
Statement hereunder; and
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(c) The Investor agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(g) or 3(h)
above, the Investor will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until the Investor receives the copies of the supplemented or amended
prospectus contemplated by Section 3(g) or 3(h) and, if so directed by the
Company, the Investor shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Investor's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
5. EXPENSES OF REGISTRATION. (a) All reasonable expenses (other than
underwriting discounts and commissions to the Investor) incurred in connection
with Registrations, filings or qualifications pursuant to SECTION 3, including,
without limitation, all Registration, listing, and qualifications fees, printers
and accounting fees, the fees and disbursements of counsel for the Company and a
fee for a single counsel for Investor of $4,500 for the initial Registration
Statement and $2,000 for each Additional Registration Statement covering the
Registrable Securities shall be borne by the Company; and
(b) Except as otherwise provided for in SCHEDULE 5(b) attached hereto, the
Company nor any of its subsidiaries has, as of the date hereof, and the Company
shall not on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to
Investor in this Agreement or otherwise conflicts with the provisions hereof.
Except as otherwise provided for in SCHEDULE 5(b), the Company has not
previously entered into any agreement granting any registration rights with
respect to any of its securities to any person. Except as otherwise provided for
in this SECTION 5, and without limiting the generality of the foregoing, without
the written consent of Investor, the Company shall not grant to any person any
new right to request the Company to Register any securities of the Company under
the Securities Act unless the rights so granted are subject in all respects to
the prior rights in full of Investor set forth herein, and are not otherwise in
conflict or inconsistent with the provisions of this Agreement and the other
Transaction Documents.
6. INDEMNIFICATION. After Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless, the Investor, the directors, if any, of such Investor, the officers,
if any, of such Investor, each person, if any, who controls the Investor within
the meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (each, an "Indemnified Person"), against any
losses, claims, damages, liabilities or expenses (joint or several) incurred
(collectively, "Claims") to which any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced in respect thereof) arise out of or
are based upon: (i) any untrue statement or alleged untrue statement of a
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material fact contained in the Registration Statement or any post-effective
amendment thereof or 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, (ii) any untrue statement or alleged untrue statement of
a material fact contained in the final prospectus (as amended or supplemented,
if the Company files any amendment thereof or supplement thereto with the SEC)
or the omission or alleged omission to state therein any material fact necessary
to make the statements made therein, in the light of the circumstances under
which the statements therein were made, not misleading or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state securities law (the matters in the foregoing clauses
(i) through (iii) being collectively referred to as "Violations"). Subject to
clause (b) of this Section 6, the Company shall reimburse the Investor, promptly
as such expenses are incurred and are due and payable, for any reasonable legal
fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a) shall not (i) apply to any Claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by the Company pursuant to Section 3(c)
hereof; (ii) be available to the extent such Claim is based on a failure of the
Investor to deliver or cause to be delivered the prospectus made available by
the Company; or (iii) apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld. The Investor will indemnify the
Company, its officers, directors and agents (including legal counsel) (each an
"Indemnified Person") against any claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company, by or on behalf of such Investor, expressly
for use in connection with the preparation of the Registration Statement, or
arising out of or based upon a failure of the Investor to deliver or cause to be
delivered the prospectus made available by the Company, subject to such
limitations and conditions set forth in this Section 6. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person or Indemnified Party, and shall survive the
offer and sale of the Registrable Securities by the Investor.
(b) Promptly after receipt by an Indemnified Person under this Section 6 of
notice of the commencement of any action (including any governmental action),
such Indemnified Person shall, if a Claim in respect thereof is to be made
against any indemnifying party under this Section 6, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume control of the defense thereof with counsel mutually satisfactory to
the indemnifying party and the Indemnified Person, as the case may be; PROVIDED,
HOWEVER, that an Indemnified Person shall have the right to retain its own
counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person and the
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indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person and any other party represented by
such counsel in such proceeding. In such event, the Company shall pay for only
one separate legal counsel for the Investor selected by the Investor. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person under this Section 6, except to
the extent that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as such expense, loss, damage or liability is incurred and is due
and payable.
7. 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 6 to the fullest extent permitted by law; PROVIDED,
HOWEVER, that (a) 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 6; and (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation.
8. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
Investor the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the SEC that may at any time permit the
Investor to sell securities of the Company to the public without registration
("Rule 144"), the Company agrees to use its reasonable best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Exchange Act; and
(c) furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company
solely if unavailable by Xxxxx, and (iii) such other information as may be
reasonably requested to permit the Investors to sell such securities pursuant to
Rule 144 without registration.
(d) The Company will, at the request of any Investor of Registrable
Securities, give its Transfer Agent irrevocable instructions (supported by an
opinion of Company counsel, if required or requested by the Transfer Agent) to
the effect that, upon the Transfer Agent's receipt from such Investor of:
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(i) a certificate (a "Rule 144 Certificate") certifying (A) that such
Investor has held the shares of Registrable Securities which the
Investor proposes to sell (the "Securities Being Sold") for a period of
not less than (1) year and (B) as to such other matters as may be
appropriate in accordance with Rule 144 under the Securities Act, and
(B) an opinion of counsel acceptable to the Company (for which purposes
it is agreed that the initial Investor's Counsel shall be deemed
acceptable) that, based on the Rule 144 Certificate, Securities Being
Sold may be sold pursuant to the provisions of Rule 144, even in the
absence of an effective Registration Statement,
the Transfer Agent is to effect the transfer of the Securities Being Sold and
issue to the buyer(s) or transferee(s) thereof one or more stock certificates
representing the transferred Securities Being Sold without any restrictive
legend and without recording any restrictions on the transferability of such
shares on the Transfer Agent's books and records (except to the extent any such
legend or restriction results from facts other than the identity of the
Investor, as the seller or transferor thereof, or the status, including any
relevant legends or restrictions, of the shares of the Securities Being Sold
while held by the Investor). If the Transfer Agent requires any additional
documentation at the time of the transfer, the Company shall deliver or cause to
be delivered all such reasonable additional documentation as may be necessary to
effectuate the issuance of an unlegended certificate.
9. MISCELLANEOUS.
(a) REGISTERED OWNERS. 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, who shall provide a bond or other form of satisfactory
protection to Company so as to cover contingent liability against any other
claimants.
(b) RIGHTS CUMULATIVE; WAIVERS. The rights of each of the parties under
this Agreement are cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in exercising any of
such rights shall not operate as a waiver or variation of that or any other such
right. Any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right. No act
or course of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a suspension or
any variation of any such right.
(c) LIABILITY. Neither party shall be liable for consequential damages.
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(d) BENEFIT; SUCCESSORS BOUND. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights, and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives, successors,
and permitted assigns.
(e) Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties, covenants or
representations, oral or written, express or implied, between them with respect
to this Agreement or the matters described in this Agreement, except as set
forth in this Agreement and in the other documentation relating to the
transactions contemplated by this Agreement solely as same are referred to
herein. Any such negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(f) Assignment. The rights to have the Company register Registrable
Securities pursuant to this Agreement may be assigned by the Investors to any
transferee, only if: (a) the assignment requires that the Transferee be bound by
all of the provisions contained in this Agreement, and Investor and the
transferee or assignee (the "Transferee") enter into a written agreement, which
shall be enforceable by the Company against the Transferee and by the Transferee
against the Company, to assign such rights; and (b) immediately following such
transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act and applicable
state securities laws. In the event of any delay in filing or effectiveness of
the Registration Statement as a result of such assignment, the Company shall not
be liable for any damages arising from such delay.
(g) Amendment. Any provision 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 the written consent of the
Company and Investor. Any amendment or waiver effected in accordance with this
Section 9 shall be binding upon the Company and any subsequent Transferees.
(h) Severability. Each part of this Agreement is intended to be severable.
In the event that any provision of this Agreement is found by any court or other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue in full
force and effect.
(i) Notices. Notices required or permitted to be given hereunder shall be
in writing and shall be deemed to be given as provided in the Equity Agreement.
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(j) Governing Law; Jurisdiction. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York for contracts
to be wholly performed in such state and without giving effect to the principles
thereof regarding the conflict of laws. Each of the parties consents to the
exclusive jurisdiction of the federal courts whose districts encompass any part
of the City of New York or the state courts of the State of New York sitting in
the City of New York in connection with any dispute arising under this Agreement
or any of the other Transaction Documents and hereby waives, to the maximum
extent permitted by law, any objection, including any objection based on forum
non conveniens, to the bringing of any such proceeding in such jurisdictions.
(k) Jury Trial Waiver. The Company and the Investor hereby waive a trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other in respect of any matter arising out of or in
connection with the Transaction Documents.
(l) Consents. The person signing this Agreement on behalf of each party
hereby represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of that party.
(m) Further Assurances. In addition to the instruments and documents to be
made, executed and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other actions as
the requesting party may reasonably require to carry out the terms of this
Agreement and the transactions contemplated hereby.
(n) Section Headings. The Section headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(o) Construction. Unless the context otherwise requires, when used herein,
the singular shall be deemed to include the plural, the plural shall be deemed
to include each of the singular, and pronouns of one or no gender shall be
deemed to include the equivalent pronoun of the other or no gender.
(p) Execution in Counterparts. 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. This Agreement, once executed by a
party, may be delivered to the other party hereto by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement. A facsimile transmission of this signed Agreement
shall be legal and binding on all parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
EUROTECH, LTD.
By /S/ XXX X. XXXXXXXXX
--------------------
Name: XXX X. XXXXXXXXX
Title: PRESIDENT & CEO
XXXXX & XXXXXXXX, LTD.
By /S/ XXXXX X. XXXXXX
--------------------
Name XXXXX X. XXXXXX
Title: PRESIDENT
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SCHEDULE 5(b)
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