Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
made and entered into as of November 2, 2005 by and between Euroseas Ltd., a
Xxxxxxxx Islands corporation (the "Company") and Friends Investment Company
Inc., a Xxxxxxxx Islands corporation ("Friends"). Friends and any Person that
becomes a party to this Agreement after the date hereof (any such Person, an
"Outside Investor") are hereinafter referred to collectively as the
"Stockholders." Capitalized terms used herein without definition are defined in
Section 10.
WHEREAS, the parties hereto wish to set forth certain rights
and obligations with respect to the registration of the shares of Common Stock
under the Securities Act.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Registrations Upon Request.
1.1 Requests by Friends. At any time after termination of the Lock-Up
Agreement, Friends shall have the right to request that the Company effect the
registration under the Securities Act of all or a portion of the Registrable
Securities owned by Friends, each such request to specify the intended method or
methods of disposition thereof. Upon any such request, the Company will
promptly, but in any event within fifteen (15) days, give written notice of such
request to all holders of Registrable Securities and thereupon the Company will,
subject to Section 1.4, use its best efforts to effect the prompt registration
under the Securities Act of:
(a) the Registrable Securities which the Company has been so
requested to register by Friends, and
(b) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given
to the Company by such holders within fifteen (15) days after the
giving of such written notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of Friends.
Notwithstanding the foregoing, but subject to the rights of
holders of Registrable Securities under Section 2, (a) if the Board determines
in its good faith judgment, after consultation with a firm of nationally
recognized underwriters, that a requested registration under this Section 1.1
will have a material and adverse effect on the offering price or marketability
of the securities being sold in a then contemplated public
offering, the Company may defer the filing (but not the preparation) of the
registration statement which is required to effect such registration during the
period starting with the 30th day immediately preceding the date of anticipated
filing by the Company of the registration statement and ending on the later of
(i) a date 60 days following the effective date of the registration statement
relating to such public offering or (ii) such later date (not to exceed 180
days) as may be required by the managing underwriter of the public offering,
provided that at all times the Company is in good faith using all reasonable
efforts to cause such registration statement to be filed as soon as possible and
provided, further, that such period shall end on such earlier date as may be
permitted by the underwriters of such underwritten public offering, and (b) if
the Company shall at any time furnish to Friends a certificate signed by the
president of the Company stating that the Company has pending or in process a
material transaction (including, but not limited to, a financing transaction),
the disclosure of which would, in the good faith judgment of the Board,
materially and adversely affect the Company, the Company may defer the filing
(but not the preparation) of a registration statement to be filed pursuant to
this Section 1.1 for up to sixty (60) days (but the Company shall use its best
efforts to complete the transaction and file the registration statement as soon
as possible).
1.2 Registration Statement Form. A registration requested pursuant to
Section 1.1 shall be effected by the filing of a registration statement on a
form agreed to by Friends.
1.3 Expenses. The Company shall pay all Registration Expenses in
connection with any registration requested under Section 1.1; provided that each
seller of Registrable Securities shall pay all Registration Expenses to the
extent required to be paid by such seller under applicable law and all
underwriting discounts and commissions and transfer taxes, if any.
1.4 Priority in Demand Registrations. If a registration pursuant to
Section 1.1 involves an underwritten offering, and the managing underwriter (or,
in the case of an offering which is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a copy to
each Person requesting registration of Registrable Securities) that, in its
opinion, the number of securities requested, and otherwise proposed to be
included in such registration, exceeds the number which can be sold in such
offering without materially and adversely affecting the marketability or
offering price of the securities being sold in such registration, the Company
shall include in such registration, to the extent of the number which the
Company is so advised can be sold in such offering without such material adverse
effect, first, the Registrable Securities of Friends and the Outside Investors,
if any, on a pro rata basis (based on the number of shares of Registrable
Securities owned by each such Stockholder), and second, the securities, if any,
being sold by the Company. In the event of any such determination under this
Section 1.4, the Company shall give the affected holders of Registrable
Securities notice of such determination and in lieu of the notice otherwise
required under Section 1.1.
2. Incidental Registrations. If the Company at any time after expiration of
the Lock-Up Agreement proposes to register any of its equity securities under
the Securities Act for
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its own account (including, but not limited to, a shelf registration statement
on Form F-3, but other than pursuant to a registration on Form F-4 or S-8 or any
successor form), then the Company shall give prompt written notice to all
holders of Registrable Securities regarding such proposed registration. Upon the
written request of any such holder made within 15 days after the receipt of any
such notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such holder and the intended method or methods of
disposition thereof), the Company shall use its best efforts to effect the
registration under the Securities Act of such Registrable Securities on a pro
rata basis in accordance with such intended method or methods of disposition,
provided that:
(a) the Company shall not include Registrable Securities in such
proposed registration to the extent that the Board shall have
determined, after consultation with the managing underwriter for such
offering, that it would materially and adversely affect the
marketability or the offering price of the securities being sold in
such registration to include any Registrable Securities in such
registration provided, that in the event of any such determination,
the Company shall give the affected holders of Registrable Securities
notice of such determination and in lieu of the notice otherwise
required by the first sentence of this Section 2;
(b) if, at any time after giving written notice (pursuant to this
Section 2) of its intention to register 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 such equity securities, the Company may, at its election,
give written notice of such determination to each holder of
Registrable Securities and, thereupon, shall not be obligated to
register any Registrable Securities in connection with such
registration (but shall nevertheless pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of
Friends that a registration be effected under Section 1.1; and
(c) if in connection with a registration pursuant to this Section
2, the managing underwriter of such registration (or, in the case of
an offering that is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration
thereof) that the number of securities requested and otherwise
proposed to be included in such registration exceeds the number which
can be sold in such offering without materially and adversely
affecting the marketability or offering price of the securities being
sold in such registration, then in the case of any registration
pursuant to this Section 2, the Company shall include in such
registration to the extent of the number which the Company is so
advised can be sold in such offering without such material adverse
effect, first, the securities, if any, being sold by the Company, and
second, the Registrable Securities of Friends and the Outside
Investors, if any, on a pro rata basis (based on the number of shares
of Registrable Securities owned by each such Stockholder).
The Company shall pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2, provided that
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each seller of Registrable Securities shall pay all Registration Expenses to the
extent required to be paid by such seller under applicable law and all
underwriting discounts and commissions and transfer taxes, if any. No
registration effected under this Section 2 shall relieve the Company from its
obligation to effect registrations under Section 1.1.
3. Registration Procedures. If and whenever the Company is required to use
its best efforts to effect the registration of any Registrable Securities under
the Securities Act pursuant to Section 1.1 or Section 2, the Company shall
promptly:
(a) prepare, and as soon as practicable, but in any event within
sixty (60) days thereafter, file with the Commission, a registration
statement with respect to such Registrable Securities, make all
required filings with the NASD and use its best efforts to cause such
registration statement to become effective as soon as practicable;
(b) prepare and promptly file with the Commission such amendments
and post-effective amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for so long as
is required to comply with the provisions of the Securities Act and to
complete the disposition of all securities covered by such
registration statement in accordance with the intended method or
methods of disposition thereof, but in no event for a period of more
than two years after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with the
Commission in connection with such registration to (i) counsel
selected by Friends in the case of a registration pursuant to Section
1.1 and otherwise the Majority Holders, and which counsel may also be
counsel to the Company, and (ii) each seller of Registrable Securities
(or in the case of the initial filing of a registration statement,
within five business days of such initial filing) and such documents
shall be subject to the review of such counsel; provided that the
Company shall not file any registration statement or any amendment or
post-effective amendment or supplement to such registration statement
or the prospectus used in connection therewith to which such counsel
shall have reasonably objected on the grounds that such registration
statement amendment, supplement or prospectus does not comply
(explaining why) in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(d) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case
including all exhibits and documents filed therewith) and such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to
facilitate the
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disposition of the Registrable Securities owned by such seller in
accordance with the intended method or methods of disposition thereof;
(e) use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under the securities
or blue sky laws of such jurisdictions as each seller shall reasonably
request, and do any and all other acts and things which may be
necessary or advisable to enable such seller to consummate the
disposition of such Registrable Securities in such jurisdictions in
accordance with the intended method or methods of disposition thereof,
provided that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, subject itself to
taxation in any jurisdiction wherein it is not so subject, or take any
action which would subject it to general service of process in any
jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary by virtue of the business
and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition thereof;
(g) in the case of an underwritten offering, furnish to Friends:
(i) an opinion of counsel for the Company experienced in
securities law matters, dated the effective date of the
registration statement (and, if such registration
includes an underwritten public offering, the date of
the closing under the underwriting agreement); and
(ii) a "comfort" letter (unless the registration is pursuant
to Section 2 and such a letter is not otherwise being
furnished to the Company), dated the effective date of
such registration statement (and if such registration
includes an underwritten public offering, dated the
date of the closing under the underwriting agreement),
signed by the independent public accountants who have
issued an audit report on the Company's financial
statements included in the registration statement,
covering (in the case of (i) and (ii)) such matters as
are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the
underwriters in underwritten public offerings of
securities and such other matters as Friends may
reasonably request;
(h) notify each seller of any Registrable Securities covered by
such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event or existence of any fact as a result of which
the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state any material
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fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing,
and, as promptly as is practicable, prepare and furnish to such seller
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 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;
(i) otherwise comply with all applicable rules and regulations of
the Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement of the Company (in form
complying with the provisions of Rule 158 under the Securities Act)
covering the period of at least 12 months, but not more than 18
months, beginning with the first month after the effective date of
such registration statement;
(j) notify each seller of any Registrable Securities covered by
such registration statement (i) when the prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective
amendment, when the same has become effective, (ii) of any request by
the Commission for amendments or supplements to such registration
statement or to amend or to supplement such prospectus or for
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement
or the initiation of any proceedings for that purpose and (iv) of the
suspension of the qualification of such securities for offering or
sale in any jurisdiction, or of the institution of any proceedings for
any of such purposes;
(k) use every reasonable effort to obtain the lifting of any stop
order that might be issued suspending the effectiveness of such
registration statement at the earliest possible moment;
(l) use its best efforts (i) (A) to list such Registrable
Securities on any securities exchange on which the equity securities
of the Company are then listed or, if no such equity securities are
then listed, on an exchange selected by the Company, if such listing
is then permitted under the rules of such exchange, or (B) if such
listing is not practicable, to secure designation of such securities
as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 under the Exchange Act or, failing that, to secure NASDAQ
authorization for such Registrable Securities, and, without limiting
the foregoing, to arrange for at least two market makers to register
as such with respect to such Registrable Securities with the NASD, and
(ii) to provide a transfer agent and registrar for such Registrable
Securities not later than the effective date of such registration
statement and to instruct such transfer agent (A) to release any stop
transfer order with respect to the certificates with respect to the
Registrable Securities being sold and (B) to furnish certificates
without restrictive legends representing ownership of the shares being
sold, in such denominations requested by the sellers of the
Registrable
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Securities or the lead underwriter;
(m) enter into such agreements and take such other actions as
Friends, counsel to the Majority Holders (if applicable), or the
underwriters reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, including, without
limitation, preparing for, and participating in, such number of "road
shows" and all such other customary selling efforts as the
underwriters reasonably request in order to expedite or facilitate
such disposition;
(n) furnish to any holder of such Registrable Securities such
information and assistance as Friends or, if applicable, counsel to
the Majority Holders, may reasonably request in connection with any
"due diligence" effort which Friends or counsel to the Majority
Holders, as the case may be, deems appropriate; and
(o) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated
hereby.
As a condition to its registration of Registrable Securities
of any prospective seller, the Company may require such seller of any
Registrable Securities as to which any registration is being effected to execute
powers-of-attorney, custody arrangements and other customary agreements
appropriate to facilitate the offering and to furnish to the Company such
information regarding such seller, its ownership of Registrable Securities and
the disposition of such Registrable Securities as the Company may from time to
time reasonably request in writing and as shall be required by law in connection
therewith. Each such holder agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any holder of Registrable Securities, or otherwise identifies any
holder of Registrable Securities as the holder of any Registrable Securities,
without the consent of such holder, such consent not to be unreasonably withheld
or delayed, unless such disclosure is required by law.
By acquisition of Registrable Securities, each holder of
such Registrable Securities shall be deemed to have agreed that upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3(h), such holder will promptly discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(h). If so directed
by the Company, each holder of Registrable Securities will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3(a) shall be
extended by the number of days during the period from
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and including the date of the giving of such notice to and including the date
when each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3(h).
4. Underwritten Offerings.
4.1 Underwriting Agreement. If requested by the underwriters for any
underwritten offering pursuant to a registration requested under Section 1.1 or
Section 2, the Company shall enter into an underwriting agreement with the
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the underwriters and to Friends (unless Friends is not
participating in such registration, in which case, counsel to the Majority
Holders). Any such underwriting agreement shall contain such representations and
warranties by the Company and such other terms and provisions as are customarily
contained in agreements of this type, including, without limitation, indemnities
to the effect and to the extent provided in Section 8. Each holder of
Registrable Securities to be distributed by such underwriter who owns 10% or
more of the Common Stock of the Company (computed on a fully-diluted basis) at
the time of the such offering shall be a party to such underwriting agreement
and may, at such holder's option, require that any or all of the representations
and warranties by, and the agreements on the part of, the Company to and for the
benefit of such underwriters be made to and for the benefit of such holder of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such holder of Registrable
Securities. Outside Investors, if any, in their capacities as stockholders
and/or controlling persons shall not be required by any underwriting agreement
to make any representations or warranties to or agreements with the Company or
the underwriters other than representations, warranties or agreements regarding
such holder, the ownership of such holder's Registrable Securities and such
holder's intended method or methods of disposition and any other representation
required by law or to furnish any indemnity to any Person which is broader than
the indemnity furnished by such holder pursuant to Section 8.2.
4.2 Selection of Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering, the Company will have the right to
select the managing underwriter (which shall be of nationally recognized
standing) to administer the offering, but if Friends and its Affiliates at such
time own at least 10% of the number of shares of Common Stock they own on the
date hereof, only with the approval of Friends, such approval not to be
unreasonably withheld. Notwithstanding the foregoing sentence, whenever a
registration requested pursuant to Section 1.1 is for an underwritten offering,
Friends will have the right to select the managing underwriter (which shall be
of nationally recognized standing) to administer the offering, but only with the
approval of the Company, such approval not to be unreasonably withheld.
5. Holdback Agreements.
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(a) If and whenever the Company proposes to register any of its
equity securities under the Securities Act for its own account (other
than on Form F-4 or S-8 or any successor form) or is required to use
its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 1.1 or Section
2, each holder of Registrable Securities agrees by acquisition of such
Registrable Securities not to effect any sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, or
to request registration under Section 1.1 of any Registrable
Securities within seven days prior to and 90 days (unless advised by
the managing underwriter that a longer period, not to exceed 180 days,
is required, or such shorter period as the managing underwriter for
any underwritten offering may agree) after the effective date of the
registration statement relating to such registration (the "Trigger
Date"), except as part of such registration or unless, in the case of
a sale or distribution not involving a public offering, the transferee
agrees in writing to be subject to this Section 5, even if such
Registrable Securities cease to be Registrable Securities upon such
transfer; provided that, with respect to any shelf registration
statement on Form F-3, the Trigger Date shall be the pricing of any
offering made under such registration statement. If requested by such
managing underwriter, each holder of Registrable Securities agrees to
execute an agreement to such effect with the Company and consistent
with such managing underwriter's customary form of holdback agreement.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities or securities convertible into
or exchangeable or exercisable for any of such securities within seven
days prior to and 90 days (or such longer period, not to exceed 180
days, which may be required by the managing underwriter, or such
shorter period as the managing underwriter may agree) after the
Trigger Date with respect to any registration statement filed pursuant
to Section 1.1 (except (i) as part of such registration, (ii) as
permitted by any related underwriting agreement, (iii) pursuant to an
employee equity compensation plan, (iv) pursuant to an acquisition or
strategic relationship, bank or equipment financing or similar
transaction or (v) pursuant to a registration on Form F-4 or S-8 or
any successor form); provided that, with respect to any shelf
registration statement on Form F-3, the Trigger Date shall be the
pricing of any offering made under such registration statement. In
addition, if, and to the extent requested by the managing underwriter,
the Company shall use its best efforts to cause each holder (other
than any holder already subject to Section 5(a)) of its equity
securities or any securities convertible into or exchangeable or
exercisable for any of such securities, whether outstanding on the
date of this Agreement or issued at any time after the date of this
Agreement (other than any such securities acquired in a public
offering), to agree not to effect any such public sale or distribution
of such securities during such period, except as part of any such
registration if permitted, and to cause each such holder to enter into
an agreement to such effect with the Company and consistent with such
managing underwriter's customary form of holdback agreement.
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6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company shall give counsel to the
holders of such Registrable Securities so to be registered the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and shall give such counsel access to the financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries and opportunities to discuss the business of the Company with
its officers and the independent public accountants who have issued audit
reports on its financial statements in each case as shall be reasonably
requested by such counsel in connection with such registration statement.
7. No Grant of Future Registration Rights. The Company shall not grant
any other demand or incidental registration rights to any other Person without
the prior written consent of Friends, so long as Friends, together with its
Affiliates, continue to own at least 10% of the number of shares of Common Stock
that Friends owns on the date hereof.
8. Indemnification.
8.1 Indemnification by the Company. In the event of any registration
of any Registrable Securities pursuant to this Agreement, the Company shall
indemnify, defend and hold harmless (a) each seller of such Registrable
Securities, (b) the directors, members, stockholders, officers, partners,
employees, agents and Affiliates of such seller, (c) each Person who
participates as an underwriter in the offering or sale of such securities and
(d) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any of the foregoing against
any and all losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), jointly or severally, directly or indirectly, based upon or
arising out of (i) any untrue statement or alleged untrue statement of a fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein or used in connection with
the offering of securities covered thereby, or any amendment or supplement
thereto, or (ii) any omission or alleged omission to state a fact required to be
stated therein or necessary to make the statements therein not misleading; and
the Company will reimburse each such indemnified party for any legal or any
other expenses reasonably incurred by them in connection with enforcing its
rights hereunder or under the underwriting agreement entered into in connection
with such offering or investigating, preparing, pursuing or defending any such
loss, claim, damage, liability, action or proceeding, except insofar as any such
loss, claim, damage, liability, action, proceeding or expense arises out of or
is based upon an untrue statement or 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 by such seller expressly for use in
the preparation thereof in accordance with the second sentence of Section 8.2.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by such indemnified party and shall survive the transfer of
such Registrable Securities by such seller. If the Company is entitled to, and
does, assume the
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defense of the related action or proceedings provided herein, then the indemnity
agreement contained in this Section 8.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, action or proceeding if
such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed).
8.2 Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Section 1.1 or Section 2 that the Company shall have received
an undertaking satisfactory to it from each of the prospective sellers of such
Registrable Securities to indemnify and hold harmless, severally, not jointly,
in the same manner and to the same extent as set forth in Section 8.1, the
Company, its directors, officers, employees, agents and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) the Company, 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 made in reliance upon and in
conformity with written information furnished to the Company by such seller
expressly for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement. The
Company and the holders of the Registrable Securities in their capacities as
stockholders and/or controlling persons (but not in their capacities as managers
of the Company) hereby acknowledge and agree that, unless otherwise expressly
agreed to in writing by such holders, the only information furnished or to be
furnished to the Company for use in any registration statement or prospectus
relating to the Registrable Securities or in any amendment, supplement or
preliminary materials associated therewith are statements specifically relating
to (a) transactions between such holder and its Affiliates, on the one hand, and
the Company, on the other hand, (b) the beneficial ownership of shares of Common
Stock by such holder and its Affiliates and (c) the name and address of such
holder. If any additional information about such holder or the plan of
distribution (other than for an underwritten offering) is required by law to be
disclosed in any such document, then such holder shall not unreasonably withhold
its agreement referred to in the immediately preceding sentence of this Section
8.2. 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 Registrable
Securities by such seller. The indemnity agreement contained in this Section 8.2
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, action or proceeding if such settlement is effected without the
consent of such seller (which consent shall not be unreasonably withheld or
delayed). The indemnity provided by each seller of Registrable Securities under
this Section 8.2 shall be limited in amount to the net amount of proceeds
actually received by such seller from the sale of Registrable Securities
pursuant to such registration statement.
8.3 Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 8, such
indemnified party shall, if a claim in
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respect thereof is to be made against an indemnifying party, give written notice
to the indemnifying party of the commencement of such action or proceeding,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 8, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, the indemnifying
party shall be entitled to participate therein and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof except for the reasonable fees and expenses of any counsel
retained by such indemnified party to monitor such action or proceeding.
Notwithstanding the foregoing, if such indemnified party reasonably determines,
based upon advice of independent counsel, that a conflict of interest may exist
between the indemnified party and the indemnifying party with respect to such
action and that it is advisable for such indemnified party to be represented by
separate counsel, such indemnified party may retain other counsel, reasonably
satisfactory to the indemnifying party, to represent such indemnified party, and
the indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation.
8.4 Other Indemnification. Indemnification similar to that specified
in the preceding paragraphs of this Section 8 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration (other than under the Securities Act) or
other qualification of such Registrable Securities under any federal or state
law or regulation of any governmental authority.
8.5 Indemnification Payments. Any indemnification required to be made
by an indemnifying party pursuant to this Section 8 shall be made by periodic
payments to the indemnified party during the course of the action or proceeding,
as and when bills are received by such indemnifying party with respect to an
indemnifiable loss, claim, damage, liability or expense incurred by such
indemnified party.
8.6 Other Remedies. If for any reason any indemnification specified
in the preceding paragraphs of this Section 8 is unavailable, or is insufficient
to hold harmless an indemnified party, other than by reason of the exceptions
provided therein, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses, claims,
damages, liabilities, actions, proceedings or expenses in such proportion as is
appropriate to reflect the relative benefits to and faults of the indemnifying
party on the one hand and the indemnified party on the other and the statements
or omissions or alleged statements or omissions which resulted in such loss,
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claim, damage, liability, action, proceeding or expense, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and of the indemnified party shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statements or omissions.
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. Notwithstanding the
other provisions of this Section 8, in respect of any claim for indemnification
pursuant to this Section 8, no indemnifying party (other than the Company) shall
be required to contribute pursuant to this Section 8.6 any amount in excess of
(a) the net proceeds received and retained by such indemnifying party from the
sale of its Registrable Securities covered by the applicable registration
statement, preliminary prospectus, final prospectus, or supplement or amendment
thereto, filed pursuant hereto minus (b) any amounts previously paid by such
indemnifying party pursuant to this Section 8 in respect of such claim, it being
understood that insofar as such net proceeds have been distributed by any
indemnifying party to its partners, stockholders or members, the amount of such
indemnifying party's contribution hereunder shall be limited to the net proceeds
which it actually recovers from its partners, stockholders or members based upon
their relative fault and that to the extent that such indemnifying party has not
distributed such net proceeds, the amount such indemnifying party's contribution
hereunder shall be limited by the percentage of such net proceeds which
corresponds to the percentage equity interests in such indemnifying party held
by those of its partners, stockholders or members who have been determined to be
at fault. No party shall be liable for contribution under this Section 8.6
except to the extent and under such circumstances as such party would have been
liable for indemnification under this Section 8 if such indemnification were
enforceable under applicable law.
(9) Representations and Warranties. Each Stockholder represents and
warrants to the Company and each other Stockholder that:
(a) such Stockholder has the power, authority and capacity (or,
in the case of any Stockholder that is a corporation, limited
liability company or limited partnership, all corporate, limited
liability company or limited partnership power and authority, as the
case may be) to execute, deliver and perform this Agreement;
(b) in the case of a Stockholder that is a corporation, limited
liability company or limited partnership, the execution, delivery and
performance of this Agreement by such Stockholder has been duly and
validly authorized and approved by all necessary corporate, limited
liability company or limited partnership action, as the case may be;
(c) this Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and legally
binding obligation of such Stockholder, enforceable in accordance with
its terms, subject to bankruptcy,
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insolvency, reorganization, moratorium or other similar laws affecting
or relating to creditors' rights generally and general principles of
equity; and
(d) the execution, delivery and performance of this Agreement by
such Stockholder does not and will not violate the terms of or result
in the acceleration of any obligation under (i) any material contract,
commitment or other material instrument to which such Stockholder is a
party or by which such Stockholder is bound or (ii) in the case of a
Stockholder that is a corporation, limited liability company or
limited partnership, the certificate of incorporation, certificate of
formation, certificate of limited partnership, by-laws, limited
liability company agreement or limited partnership agreement, as the
case may be.
10. Definitions. For purposes of this Agreement, the following terms shall
have the following respective meanings:
Affiliate: a Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
Board: the board of directors of the Company.
Commission: the Securities and Exchange Commission.
Common Stock: the Common Stock of the Company, par value
$.01 per share.
Exchange Act: the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
thereunder which shall be in effect at the time.
Lock-Up Agreement: the Lock-Up Agreement, dated as of August
25, 2005 between Friends and the Company.
Majority Holders: the holders of at least 51% of the
Registrable Securities that are participating in the registration at issue.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: the Nasdaq National Market.
Person: an individual, corporation, partnership, limited
liability company, joint venture, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Registrable Securities: the shares of Common Stock
beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act) by
Friends, the Outside Investors, if any, or the Permitted Transferees (as such
term is defined in Section 11.2). As to any particular shares of Common Stock,
such securities shall cease to be Registrable Securities
14
when (i) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (ii) a
registration statement on Form S-8 with respect to the sale of such securities
shall have become effective under the Securities Act and such securities have
been disposed of pursuant thereto, (iii) they shall have been sold to the public
pursuant to Rule 144 under the Securities Act, (iv) they shall have been
otherwise transferred other than to a Permitted Transferee and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act or any similar state law then in force or (v) they
shall have ceased to be outstanding. Any and all shares of Common Stock which
may be issued in respect of, in exchange for, or in substitution for any
Registrable Securities, whether by reason of any stock split, stock dividend,
reverse stock split, recapitalization, combination or otherwise, shall also be
"Registrable Securities" hereunder.
Registration Expenses: all expenses incident to the
Company's performance of or compliance with any registration pursuant to this
Agreement, including, without limitation, (i) registration, filing and NASD
fees, (ii) fees and expenses of complying with securities or blue sky laws,
(iii) fees and expenses associated with listing securities on an exchange or
NASDAQ, (iv) word processing, duplicating and printing expenses, (v) messenger
and delivery expenses, (vi) transfer agents', trustees', depositories',
registrars' and fiscal agents' fees, (vii) fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses of
any special audits or "cold comfort" letters, (viii) reasonable fees and
disbursements of any one counsel retained by the sellers of Registrable
Securities, which counsel shall be designated in the manner specified in Section
3(c), and (ix) any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding underwriting discounts and
commissions and transfer taxes, if any.
Securities Act: the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations thereunder which
shall be in effect at the time.
11. Miscellaneous.
11.1 Rule 144, etc. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act
relating to any class of equity securities, the Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and shall take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (b) any successor rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Company shall deliver to such holder a written
statement as to whether it has complied with such
15
requirements.
11.2 Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns under this Section 11.2. The provisions of this
Agreement which are for the benefit of a holder of Registrable Securities shall
be for the benefit of and enforceable by any transferee of such Registrable
Securities; provided that such transferee executes a joinder agreement agreeing
to be bound by all of the transferor's obligations hereunder, including, without
limitation, Section 5 hereof, copies of which shall have been delivered to the
Company (each such transferee, a "Permitted Transferee").
11.3 Stock Splits, etc. Each holder of Registrable Securities agrees
that it will vote to effect a stock split, reverse stock split, recapitalization
or combination with respect to any Registrable Securities in connection with any
registration of any Registrable Securities hereunder, or otherwise, if (i) the
managing underwriter shall advise the Company in writing (or, in connection with
an offering that is not underwritten, if an investment banker shall advise the
Company in writing) that in its opinion such a stock split, reverse stock split,
recapitalization or combination would facilitate or increase the likelihood of
success of the offering, and (ii) such stock split, reverse stock split,
recapitalization or combination does not impact the respective ownership
percentages of each such holder of Registrable Securities in the Company. The
Company shall cooperate in all respects in effecting any such stock split,
reverse stock split, recapitalization or combination.
11.4 Amendment and Modification. This Agreement may be amended,
modified or supplemented by the Company with the written consent of Friends and
a majority (by number of shares) of any other holders of Registrable Securities
whose interests would be adversely affected by such amendment, modification or
supplement; provided that the interests of any existing holders of Registrable
Securities shall not be adversely affected by an amendment, modification or
supplement of this Agreement that provides for or has the effect of providing
for an additional grant of incidental registration rights with a lower or the
same priority as the rights held by such existing holders of Registrable
Securities, as long as any such grant of incidental registration rights with the
same priority are pari passu with those held by such existing holders of
Registrable Securities.
11.5 Outside Investors. Notwithstanding anything in this Agreement to
the contrary, the Company may, with the consent of Friends (and only the consent
of Friends), admit one or more Persons to this Agreement and designate such
Person as an "Outside Investor" for all purposes of this Agreement, provided
that any such Outside Investor executes and delivers a joinder agreement to this
Agreement and such other agreements or documents as may reasonably be requested
by the Company.
11.6 Governing Law. This Agreement and the rights and obligations of
the parties hereunder and the Persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York,
without giving effect to the choice of law principles thereof.
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11.7 Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
11.8 Notices. All notices, requests, demands, letters, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, as follows:
(i) If to the Company, to:
Aethrion Xxxxxx
00 Xx, Xxxxxxxxxxxx Xxxxxx
000 00 Xxxxxxxx, Xxxxxx
Telephone: 000-00 000 0000000
Facsimile: 011-30 210 6105111
Attention: President
with a copy to Friends at its address set forth in (ii)
below.
(ii) If to Friends, to it at:
Aethrion Xxxxxx
00 Xx, Xxxxxxxxxxxx Xxxxxx
000 00 Xxxxxxxx, Xxxxxx
Telephone: 000-00 000 0000000
Facsimile: 011-30 210 6105111
Attention: President
with a copy to:
Xxxxxx & Xxxxxx LLP
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
or to such other Person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, letters, waivers
and other communications shall be deemed to have been received (w) if by
personal delivery on the day after such delivery, (x) if by certified or
registered mail, on the fifth business day after the mailing thereof, (y) if by
next-day or overnight mail or delivery, on the day delivered, or (z) if by fax,
on the day delivered, provided that such delivery is confirmed.
17
11.9 Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
11.10 Injunctive Relief. Each of the parties recognizes and agrees
that money damages may be insufficient and, therefore, in the event of a breach
of any provision of this Agreement the aggrieved party may elect to institute
and prosecute proceedings in any court of competent jurisdiction to enforce
specific performance or to enjoin the continuing breach of this Agreement. Such
remedies shall, however, be cumulative and not exclusive, and shall be in
addition to any other remedy which such party may have.
11.11 Term. This Agreement shall be effective as of the date hereof
and shall continue in effect thereafter until the earlier of (a) its termination
by the consent of the parties hereto or their respective successors in interest
and (b) the date on which no Registrable Securities remain outstanding.
11.12 Further Assurances. Subject to the specific terms of this
Agreement, each of the Company and the Stockholders shall make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
11.13 Entire Agreement. This Agreement constitutes the entire
agreement and the understanding of the parties hereto with the matters referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such matters.
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IN WITNESS WHEREOF this Agreement has been signed by each of
the parties hereto, and shall be effective as of the date first above written.
EUROSEAS LTD.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
FRIENDS INVESTMENT COMPANY INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
