EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT, dated as of this 29th day of January,
1999 (This "Agreement") between Xxxxxxx Xxxxxx, for herself and the holders set
forth on the signature page hereof, ("Subscriber") and Spectre Industries Inc.,
a Nevada corporation (the "Company").
WHEREAS, pursuant to that certain Subscription Agreement, dated as
of January 29, 1999 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Purchase Agreement"), between Subscriber and
the Company and subject to the terms thereof simultaneously with the execution
and delivery of this Agreement, Subscriber is purchasing from the Company $
170,000.00 principal amount of the Company's 10% Convertible Debentures dated
January 29, 1999 convertible into shares (the "Shares") of common stock of the
Company, $.0001 par value (the "Company Common Stock").
WHEREAS Subscriber and the Company desire to enter into this
Agreement to provide certain registration rights with respect to the Shares.
Accordingly, the parties hereto agree as follows:
1. Certain Definitions.
Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency then administering the Securities Act and other federal
securities laws.
"Demand Registration Request" shall have the meaning set forth in
Section 2.1(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at any time.
"Holder" or "Holders" shall mean Subscriber and/or any party who
shall hereafter acquire Registrable Securities from Subscriber in accordance
with the Purchase Agreement and to whom Subscriber assigns rights under this
Agreement.
"Person" shall mean any natural person, corporation, partnership,
firm, association, trust, government, governmental agency or other entity,
whether acting in an individual, fiduciary or other capacity.
"Purchase Agreement" shall have the meaning set forth in the
recitals of this Agreement.
"Registrable Securities" shall mean any shares of Common Stock
acquired pursuant to the Purchase Agreement (and any shares issued upon any
subdivision, combination or reclassification of such shares or any stock
dividend in respect of any of such shares).
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"Securities Act" shall mean the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at any time.
2. Registration under Securities Act
2.1. Registration.
(a) Registration by Company. The Company agrees to file a
registration statement under the Securities Act covering the Registrable
Securities as soon as commercially reasonable after the date of issuance
of the Debentures and to use its best efforts to effect the registration
under the Securities Act of such Registrable Securities.
(b) Registration Statement Form. Registrations under this Agreement
shall be on such appropriate registration form of the Commission as shall
be reasonably selected by the Company.
(c) Expenses. The Company will pay the registration expenses in
connection with any registration requested pursuant to this Agreement.
(d) Selection of Underwriters. The managing underwriter, underwriter
or underwriters, if any, of each offering of the Registrable Securities so
to be registered shall be reasonably selected by the Company.
2.2. Piggyback Registrations.
(a) If, at any time, the Company proposes or is required to register
any of its equity securities (which term as used in this Agreement shall not be
deemed to include debt securities which are convertible into or exchangeable
for, or which carry warrants or rights to subscribe for or purchase, an equity
security) under the Securities Act (other than registrations solely of
securities in connection with an employee benefit plan or dividend reinvestment
plan or a merger or consolidation) pursuant to a registration statement on Form
S-1, Form S-2 or Form S-3 (or an equivalent general registration form then in
effect), whether or not for its own account, and the Registrable Securities are
not then registered pursuant to Section 2.1 hereof, the Company shall give
prompt written notice of its intention to do so to each of the Holders of record
of Registrable Securities. Upon the written request of any Holder, made within
15 days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of
by such Holder and the intended method of distribution thereof), the Company
shall, subject to Sections 2.2(b), 2.3 and 2.6 hereof, use its commercially
reasonable efforts to cause all such Registrable Securities, the Holders of
which have so requested the registration thereof, to be registered under the
Securities Act (with the securities which the Company at the time proposes to
register) to permit the sale or other disposition by the Holders (in accordance
with the intended method of distribution thereof) of the Registrable Securities
to be so registered. No registration effected under this Section 2.2(a) shall
relieve the Company of its obligations to effect Demand Registrations upon
request under Section 2.1.
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(b) If, at any time after giving written notice of its intention to
register any equity securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
equity securities, the Company may, at its election, give written notice of such
determination to all Holders of record of Registrable Securities and (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such abandoned
registration, without prejudice, however, to the rights of Holders under Section
2.1, and (ii) in case of a determination to delay such registration of its
equity securities, shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other equity securities.
(c) Any Holder shall have the right to withdraw its request for
inclusion of its Registrable Securities in any registration statement pursuant
to this Section 2.2 by giving written notice to the Company of its request to
withdraw; provided, however, that (i) such request must be made in writing prior
to the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
2.3. Limitations on Registration. The Company shall not be required to
effect any registration of Registrable Securities pursuant to Section 2.1 or 2.2
hereof if it shall deliver to the Holder an opinion of counsel (which opinion
and counsel shall be reasonably satisfactory to the Holder) to the effect that
all Registrable Securities held by the Holder may be sold immediately in the
public market without registration under the Securities Act and any applicable
state securities laws.
2.4. Cooperation.
(a) Preparation: Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Holder will give their full cooperation to the
Company, its underwriters, if any, and their respective counsel and accountants
in preparing such registration statement, each prospectus and amendment related
thereto, including access to books and records (to the extent customarily given
to underwriters) and such opportunities to discuss any factual matters as shall
be deemed necessary by the Company to conduct a reasonable investigation within
the meaning of the Securities Act.
(b) Further Assurances. Each Holder shall immediately notify the Company
upon discovery that the prospectus included in a registration statement 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 the light of the circumstances under which they were made. At the
request of the Company each Holder shall take any and all further action, or
refrain from any specified action, as the case may be, so that in the sole
judgment of the Company 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 the light of the
circumstances under which they were made.
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2.5. Indemnification.
(a) Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless the Holders and their respective
directors, officers, partners, agents and affiliates and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls any Holder or any such underwriter
within the meaning of the Securities Act, insofar as losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, 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
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances in which
they were made not misleading, and the Company will reimburse the Holders and
each such director, officer, partner, agent or affiliate, underwriter and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument executed by or on behalf of the Holders or underwriter, as the case
may be, specifically stating that it is for use in the preparation thereof; and
provided, further, that the Company shall not be liable to any Person who
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter within the meaning of
the Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of such Person's failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus so
long as such final prospectus, and any amendments or supplements thereto, have
been furnished to such underwriter. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Holders
or any such director, officer, partner, agent or affiliate or controlling Person
and shall survive the transfer of such securities by the Holders.
(b) Indemnification by the Holders. As a condition to including any
Registrable Securities in any registration statement, the Company shall have
received an undertaking satisfactory to it from the Holders, to indemnify and
hold harmless (in the same manner and to the same extent as set forth in
subdivision (a) of this Section 2.5) the Company, and each director of the
Company, each officer of the Company and each other Person, if any, who controls
the Company within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, if such
statement or alleged statement or omission or alleged omission was
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made in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by the Holders specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of the Holders under this
Section 2.5(b) shall be limited to the amount of proceeds received by the
Holders in the offering giving rise to such liability. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling Person and
shall survive the transfer of such securities by the Holders.
(c) Contribution. If the indemnification provided for in this Section 2.5
shall for any reason be held by a court to be unavailable to an indemnified
party under subparagraph (a) or (b) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, then, in lieu of the amount paid
or payable under subparagraph (a) or (b) hereof, the indemnified party and the
indemnifying party under subparagraph (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i) in
such proportion as is appropriate to reflect the relative fault of the Company
and the Holders, with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
shall be appropriate to reflect the relative benefits received by the Company
and the Holder from the offering of the securities covered by such registration
statement. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. In addition,
no Person shall be obligated to contribute hereunder any amounts in payment for
any settlement of any action or claim effected without such Person's consent,
which consent shall not be unreasonably withheld.
(e) Other Indemnification. Indemnification and contribution similar to
that specified in the preceding subdivisions of this Section 2.5 (with
appropriate modifications) shall be given by the Company and the Holder with
respect to any required registration or other qualification of securities under
any federal or state law or regulation of any governmental authority other than
the Securities Act.
(f) Indemnification Payments. The indemnification and contribution
required by this Section 2.5 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred. In any case in which
it shall be judicially determined that a party is not entitled to
indemnification or contribution, any payments previously received by such party
hereunder shall be promptly reimbursed.
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3. Additional Provisions
(a) Subscriber and the Holders may assign their respective rights and
obligations under this Agreement to any other Persons provided that notice of
such assignment is provided to the Company within a reasonable period of time of
such assignment.
(b) The provisions contained in Sections 6, 7, 11, 12 and 13 of the
Purchase Agreement are herein incorporated by reference, and each reference
therein to the Purchase Agreement shall, for purposes of this Agreement, be
interpreted to refer to each of the Purchase Agreement and this Registration
Rights Agreement, with full force and effect as if fully set forth herein. In
addition, with respect to notices, all notices or communications to Holders
shall be delivered in accordance with the information such Persons provide the
Company from time to time.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
SPECTRE INDUSTRIES INC.
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name:
Title:
SUBSCRIBER: /s/ Xxxxxxx Xxxxxx
By:
-------------------------------------
Name:
Title:
List of Holders
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Borut Marincek
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
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