EXHIBIT 10.45
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REGISTRATION RIGHTS AGREEMENT
DATED: September 15, 2000
With reference to that certain Promissory Note of even date
herewith (the "Promissory Note") by and between, X. Xxxxxx Enterprises, Inc. a
corporation ("Xxxxxx") and COMMODORE APPLIED TECHNOLOGIES, INC., a Delaware
corporation ("CXI"), whereby Xxxxxx loaned CXI Five Hundred Thousand Dollars
($500,00.00) and that certain Warrant of even date herewith (the "Warrant") by
and between, Xxxxxx and CXI, and in order to induce the Xxxxxx to enter into the
Promissory Note and the Warrant, and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. As soon as practicable following receipt by CXI of each
notice that Xxxxxx has exercised his Warrant to acquire shares of common stock
of CXI, CXI shall register on a short form registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), not less than that
number of shares of CXI Common Stock issuable to the Xxxxxx pursuant to each
such exercise of the Warrant. Such shares are referred to hereinafter as the
"Registrable Securities."
2. Until a Registration Statement has become effective under
the Securities Act with respect to any Registrable Securities, each certificate
representing such Registrable Securities, and all certificates and instruments
issued in transfer thereof, shall be endorsed with the following restrictive
legend:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO
THE DISTRIBUTION THEREOF, AND NEITHER SUCH SHARES NOR ANY INTEREST
THEREIN MAY BE SOLD, TRANSFERRED, ASSIGNED OR PLEDGED, EXCEPT IF
REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE BLUE SKY OR
SECURITIES LAWS OR EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION
REQUIREMENTS ARE AVAILABLE."
At such time as any Registrable Securities cease to be Registrable Securities
pursuant to Section 1, CXI shall, upon the request of any Stockholder with
respect to such securities, issue to such Stockholder a replacement certificate
without such legend in exchange for any certificate bearing such legend.
3. If any of a Xxxxxx'x Registrable Securities are registered
hereunder, CXI shall furnish to such Stockholder, at CXI's expense, such number
of copies of the Registration Statement and each amendment and supplement
thereto, preliminary prospectus, final prospectus and such other documents as
Xxxxxx may reasonably requests.
4. If any of Xxxxxx'x Registrable Securities are registered
hereunder, CXI shall promptly, at CXI's expense, use its reasonable efforts to
register or qualify the Registrable Securities covered by the Registration
Statement under such state securities or blue sky laws of such jurisdictions as
Xxxxxx may reasonably request, except that CXI shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified.
5. If Xxxxxx'x Registrable Securities are registered
hereunder, CXI shall notify Xxxxxx, promptly after it shall receive notice
thereof, of the date and time when the Registration Statement and each
post-effective amendment thereto has become effective or a supplement to any
prospectus forming a part of the Registration Statement has been filed.
6. If Xxxxxx'x Registrable Securities are registered
hereunder, CXI shall advise Xxxxxx, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Securities
Exchange Commission (the "Commission") suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
such purpose and promptly use its best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such stop order should be issued.
7. If Xxxxxx'x Registrable Securities are registered
hereunder, (a) CXI agrees to bear all Commission registration and filing fees,
printing and mailing expenses, NASD filing fees and expenses incurred by any
person or entity in connection therewith, fees, disbursements of counsel and
accountants for CXI and any underwriters, brokers and dealers and all expenses
and fees incident to an application for listing the shares of CXI Common Stock
on the American Stock Exchange, and (b) Xxxxxx agrees to bear, pro rata (or as
they may otherwise agree), all fees and disbursements of counsel for Xxxxxx and
any discounts, commissions and fees of any underwriters, brokers and dealers
with respect to the Registrable Securities sold in connection with such
registration.
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8. (a) CXI hereby agrees to indemnify and hold harmless Xxxxxx
from and against, and agrees to reimburse Xxxxxx with respect to, any and all
claims, actions (actual or threatened), demands, losses, damages, liabilities,
costs and expenses to which Xxxxxx may become subject under the Securities Act
or otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any prospectus contained therein, or any amendment or supplement thereto, or are
caused by 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; provided, however, that CXI shall not be liable in any such case to
the extent that any such claim, action, demand, loss, damage, liability, cost or
expense is caused by an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished in writing
by Xxxxxx for use in the preparation thereof.
(b) Xxxxxx hereby agrees to indemnify and hold harmless
CXI, its officers, directors, legal counsel and accountants and each person or
entity who controls CXI within the meaning of the Securities Act, from and
against, and agrees to reimburse CXI, its officers, directors, legal counsel,
accountants and controlling persons or entities with respect to any and all
claims, actions, demands, losses, damages, liabilities, costs or expenses to
which CXI, its officers, directors, legal counsel, accountants or such
controlling persons or entities may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or are
caused by the omission or the alleged omission to state therein a material
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each case
to the extent, but only to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance upon
and in conformity with information furnished in writing by Xxxxxx for use in the
preparation thereof.
(c) If any claim shall be asserted against any person or
entity (an "Indemnified Person") for which such person or entity intends to seek
indemnification pursuant to Section 8(a) or (b) from the other party hereto (the
"Indemnifying Person"), as the case may be, such Indemnified Person shall give
prompt written notice to the Indemnifying Person of the nature of such claim,
but the failure to give such notice shall not relieve the Indemnifying Person of
its obligations under this Section 8 unless it has been prejudiced substantially
thereby. The Indemnifying Person shall have the right to conduct, at its
expense, through counsel of its own choosing, which counsel is approved by the
Indemnified Person (which approval may not be unreasonably withheld), the
defense of any such claim, and may compromise or settle such claims with the
prior consent of the Indemnified Person (which consent shall not be unreasonably
withheld); provided, that (i) if the Indemnifying Person does not elect to
conduct the defense of any such claim, the Indemnified Person may undertake to
conduct the defense of such claim and the Indemnifying Person shall be
responsible for the fees and disbursements of the Indemnified Person's legal
counsel in connection with such defense and (ii) if the person or entity that is
not conducting the defense desires to join in such defense, it may elect to do
so at its own cost by retaining legal counsel acceptable to the person or entity
conducting the defense (which acceptance shall not be unreasonably withheld).
9. The rights and privileges of this Registration Rights
Agreement may inure to the benefit of other stockholders of the Company;
provided, that CXI's obligations to any one or more such stockholders shall be
subject to their execution of an addendum or joinder agreement substantially
similar in form and content to this Agreement.
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10. THIS AGREEMENT SHALL BE CONSTRUED (BOTH AS TO VALIDITY
AND PERFORMANCE) AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY
WITHIN SUCH JURISDICTION
IN WITNESS WHEREOF, this Agreement has been duly executed by or on
behalf of each party hereto on the date set forth above.
COMMODORE APPLIED TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, Chief Executive Officer
X. XXXXXX ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
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