Exhibit10.2
REGISTRATION RIGHTS AGREEMENT
OF
GLOBAL GOLD CORPORATION
Registration Rights Agreement ("Agreement") made as of the 3rd
day of November, 2004 by and among Global Gold Corporation, a Delaware
corporation currently having its office and principal place of business at 000
Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (the "Corporation"), and each
party purchasing shares of the common stock and/or warrants exercisable for
shares of the common stock of the Corporation pursuant to the Confidential
Private Placement Memorandum of the Corporation dated October 18, 2004 (the
"Memorandum"; each of the purchasers shall hereinafter be referred to
individually as a "Shareholder" and collectively as the "Shareholders").
WHEREAS, the Corporation and the Shareholders are each party
to a certain Stock Subscription and Stockholder Agreement ("Stock Subscription
and Stockholder Agreement") dated on or about the date hereof pursuant to which
the Shareholders have subscribed for shares of common stock of the Corporation,
par value $0.001 per share (the "Common Stock") pursuant to an offering of up to
a maximum of 3,000,000 shares of Common Stock effected pursuant to the
Memorandum, with the purchase of each such share also entitling each Shareholder
for no additional consideration to a warrant to purchase one additional share of
Common Stock, exercisable for a per share purchase price of $0.75 in accordance
with the terms set forth in the warrant issued on or about the date hereof
(collectively, the "Warrants"); and
1
WHEREAS, to induce the Shareholders to enter into the Stock
Subscription and Stockholder Agreement and invest in the Corporation, the
Corporation and the Shareholders hereby agree that this Agreement shall govern
the rights of the Shareholders to cause the Corporation to register shares of
Common Stock issued or issuable to the Shareholders and certain other matters as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained, each of the parties hereby agrees as follows:
1. Registration Rights.
1.1 Request for Registration.
(a) If the Corporation shall receive, at any time after
the date hereof, a written request from a Holder or Holders (as defined below)
that the Corporation file a registration statement under the Securities Act of
1933, as amended (the "Act"), covering the registration of Registrable
Securities (as defined below) the anticipated aggregate offering price for which
would exceed $3,000,000, then the Corporation shall: (i) within ten (10) days of
the receipt thereof, give written notice of such request to all Holders; and
(ii) file as soon as practicable, and in any event within thirty (30) days of
the receipt of such request and use commercially reasonable efforts to cause to
be declared effective, the registration under the Act of all shares of
Registrable Securities which the Holders request to be registered, subject to
the limitations of subsection 1.1(b), within twenty (20) days of the mailing of
such notice by the Corporation. For purposes of this Section 1, a "Holder" or
"Holders" shall mean any person owning or having the right to acquire
Registrable Securities or any assignee thereof in accordance with the provisions
of this Agreement. The term "Registrable Securities" shall mean (i) the shares
of Common Stock issued by the Corporation to a Shareholder, including any shares
2
issued pursuant to the Stock Subscription and Stockholder Agreement and any
shares issued or issuable upon the exercise of the Warrants, and (ii) any shares
of Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i) above, excluding in all cases, however, (1) shares of Common
Stock with respect to which a registration statement shall have been declared
effective under the Act and where such shares of Common Stock shall have been
disposed of in accordance with such registration statement, (2) shares of Common
Stock that have been distributed to the public in accordance with Securities and
Exchange Commission ("SEC") Rule 144 (or any successor provision; hereinafter,
"Rule 144") or (3) shares of Common Stock that are otherwise sold by a person in
a transaction in which the rights under this Section 1 are not assigned.
(b) If the Holders initiating the registration request
hereunder (the "Initiating Holders") intend to distribute the shares of
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Corporation as a part of their request made pursuant to
subsection 1.1(a) and the Corporation shall include such information in the
written notice referred to in subsection 1.1(a). The underwriter will be
selected by a majority in interest of the Initiating Holders and shall be
reasonably acceptable to the Corporation. In such event, the right of any Holder
to include its shares of Registrable Securities in such registration shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's shares of Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders) to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Corporation
as provided in subsection 1.4(e)) enter into an underwriting agreement in
3
customary form and reasonably acceptable to the Corporation with the underwriter
or underwriters selected for such underwriting. Notwithstanding any other
provision of this Section 1.1, if the underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Initiating Holders shall so advise all Holders of
shares of Registrable Securities which would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be included
in the underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
shares of Registrable Securities of the Corporation requested and entitled to be
included in such registration by each Holder; provided, however, that the number
of shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all other securities are first entirely excluded from the
underwriting.
(c) Notwithstanding the foregoing, if the Corporation
shall furnish to Holders requesting a registration statement pursuant to this
Section 1.1, a certificate signed by the Chief Executive Officer of the
Corporation stating that in the good faith judgment of the Board of Directors of
the Corporation, it would be seriously detrimental to the Corporation and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Corporation
shall have the right to defer taking action with respect to such filing for a
period of not more than ninety (90) days after receipt of the request of the
Initiating Holders; provided, however, that the Corporation may not utilize this
right more than twice or for periods aggregating more than ninety (90) days in
any twelve (12) month period.
(d) In addition, the Corporation shall not be obligated
to effect, or to take any action to effect, any registration pursuant to this
Section 1.1: (i) pursuant to a request by the Holders after the Corporation has
4
effected pursuant to this Section 1.1 two (2) registrations at the request of
such Holders and such registration has been declared or ordered effective;
(ii) during the period starting with the date thirty (30) days prior to the
Corporation's good faith estimate of the date of filing of, and ending on a date
ninety (90) days after the effective date of, a registration subject to Section
1.2 hereof; provided that the Corporation is actively employing in good faith
all reasonable efforts to cause such registration statement to become effective;
or (iii) if the Initiating Holders propose to dispose of shares of Registrable
Securities all of which may be disposed of without registration pursuant to Rule
144 under the Act during a three-month period or all of which may be disposed of
pursuant to a registration statement filed pursuant to Section 1.3 below.
With a view to making available to the Holders the benefits of
certain rules and regulations of the SEC which may permit the sale of such
Holders' shares to the public without registration, the Corporation agrees to
use its reasonable efforts to: (i) make and keep public information available at
all times, as those terms are understood and defined in Rule 144 or any similar
or analogous rule promulgated under the Act; (ii) file with the SEC, in a timely
manner, all reports and other documents required of the Corporation under the
Exchange Act of 1934, as amended (the "1934 Act"); and (iii) so long as the
Holders own Registrable Securities, furnish to the Holders forthwith upon
request a written statement by the Corporation as to its compliance with the
reporting requirements of Rule 144(c) of the Act, a copy of the most recent
annual or quarterly report of the Corporation, and such other reports and
documents as the Holder may reasonably request in availing itself of any rule or
regulation of the SEC allowing it to sell any such securities without
registration.
5
1.2 Corporation Registration. If (but without any obligation
to do so) the Corporation proposes to register (including for this purpose a
registration effected by the Corporation for stockholders other than the
Holders) any of its stock or other securities under the Act in connection with
the public offering of such securities solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Corporation stock or option plan or a registration on any form which does not
permit the inclusion of the Registered Securities), the Corporation shall, at
such time, promptly give each Holder written notice of such registration. Upon
the written request of each Holder given within thirty (30) days after receipt
of such notice by the Corporation, the Corporation shall, subject to the
provisions of Section 1.9, cause to be registered under the Act all of the
shares of Registrable Securities that each such Holder has requested to be
registered.
1.3 S-3 Registration. If the Corporation shall receive from
any Holder or Holders a written request or requests that the Corporation effect
a registration on Form S-3 and any related qualification or compliance with
respect to all or a part of the shares of Registrable Securities owned by such
Holder or Holders, the Corporation will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other Holders;
and
(b) as soon as practicable, file such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' shares of Registrable Securities as are specified in such request,
together with all or such portion of the shares of Registrable Securities of any
other Holder or Holders joining in such request as are specified in a written
request given within twenty (20) days after receipt of such written notice from
6
the Corporation; provided, however, that the Corporation shall not be obligated
to effect any such registration, qualification or compliance, pursuant to this
Section 1.3: (1) if Form S-3 is not available for such offering by the Holders;
(2) if the Holders, together with the holders of any other securities of the
Corporation entitled to inclusion in such registration, propose to sell shares
of Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $1,000,000; (3) if the Corporation shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the Corporation stating
that in the good faith judgment of the Board it would be seriously detrimental
to the Corporation and its stockholders for such Form S-3 registration to be
effected at such time, in which event the Corporation shall have the right to
defer the filing of the Form S-3 registration statement for a period of not more
than ninety (90) days after receipt of the request of the Holder or Holders
under this Section 1.3; provided, however, that the Corporation shall not
utilize this right more than twice or for periods aggregating more than ninety
(90) days in any twelve (12)-month period; (4) if the Corporation has, within
the twelve (12)-month period preceding the date of such request, already
effected two registrations on Form S-3 for the Holders pursuant to this Section
1.3; or (5) if the Holders initially making such request propose to dispose of
shares of Registrable Securities that may be disposed of without registration
pursuant to Rule 144 under the Act during any ninety (90)-day period.
Subject to the foregoing, the Corporation shall file a
registration statement covering the shares of Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt of
the request or requests of the Holders. Registrations prepared and filed
pursuant to this Section 1.3 shall not be counted as requests for registration
or registrations effected pursuant to Sections 1.1 or 1.2, respectively.
7
1.4 Obligations of the Corporation. Whenever required under
this Section 1 to effect the registration of any shares of Registrable
Securities, the Corporation shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such shares of Registrable Securities and use its reasonable
commercial efforts to cause such registration statement to become effective, and
except for a registration filed pursuant to Section 1.3 hereto, upon the request
of the Holders of a majority of the shares of Registrable Securities registered
thereunder keep such registration statement effective for a period of up to one
hundred twenty (120) days; provided, however, that such 120-day period shall be
extended for a period of time equal to the period the Holder refrains from
selling any securities included in such registration at the request of an
underwriter of common stock (or other securities) of the Corporation.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of shares of Registrable Securities owned
by them.
(d) Use its reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
"Blue Sky" laws of such jurisdictions as shall be reasonably requested by the
Holders; provided that the Corporation shall not be required in connection
8
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
unless the Corporation is already subject to service in such jurisdiction and
except as may be required by the Act.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement
reasonably satisfactory to the Corporation, in usual and customary form, with
the managing underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event 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 a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing.
(g) Notify each Holder participating in such registration
after it shall receive notice thereof, of the time when such registration
statement has become effective or a supplement to any prospectus forming a part
of such registration statement has been filed.
(h) Notify each Holder participating in such registration
of any request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information.
(i) Prepare and file with the SEC, promptly upon the
request of the Holder, any amendments or supplements to such registration
9
statement or prospectus relating to such Holder or the distribution of the
shares of Registrable Securities held by such Holder being included in such
Registration Statement, which, in the opinion of counsel for such Holder, is
required under the Act or the rules and regulations thereunder in connection
with the distribution of the shares of Registrable Securities by the Holder.
(j) Prepare and promptly file with the SEC and promptly
notify the Holder of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances in which they were made, not misleading.
(k) Advise each Holder participating in such registration,
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the SEC suspending the effectiveness of such registration
statement or the initiating or threatening of any proceeding for that purpose
and use its reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.
(l) Not file any amendment or supplement to such
registration statement or prospectus to which the Holder shall have reasonably
objected on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Act or the rules and regulations
thereunder, after having been furnished with a copy thereof at least five (5)
business days prior to the filing thereof, unless in the opinion of counsel for
the Corporation the filing of such amendment or supplement is reasonably
10
necessary to protect the Corporation from any liabilities under any applicable
federal or state law and such filing will not violate applicable law. For the
avoidance of doubt, no filings by the Corporation incorporated by reference into
the registration statement or prospectus shall be deemed an amendment or
supplement hereunder.
(l) At the request of a Holder and if required by the
underwriters, furnish: (i) an opinion of counsel to the Corporation, addressed
to the Holder, and to the underwriters, covering such matters as such Holder and
underwriters may reasonably request; and (ii) letters dated as of the effective
date of the registration statement from the independent certified public
accountants of the Corporation, addressed to the Holder and to the underwriters,
covering such matters as such Holder and underwriters may reasonably request.
(m) Cause all such shares of Registrable Securities
registered pursuant hereto to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Corporation are then
listed.
(n) Provide a transfer agent and registrar for all shares
of Registrable Securities registered pursuant hereto and a CUSIP number for
all such shares of Registrable Securities, in each case not later than the
effective date of such registration.
1.5 Furnish Information.
(a) It shall be a condition precedent to the obligations
of the Corporation to take any action pursuant to this Section 1 with respect to
the shares of Registrable Securities of any selling Holder that such Holder
shall furnish to the Corporation such information regarding itself, the shares
of Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
shares of Registrable Securities.
11
(b) The Corporation shall have no obligation with respect
to any registration requested pursuant to Section 1.1 or Section 1.3 if, due to
the operation of subsection 1.5(a), the anticipated aggregate offering price of
the shares of Registrable Securities to be included in the registration does not
equal or exceed the anticipated aggregate offering price required to originally
trigger the Corporation's obligation to initiate such registration as specified
in subsection 1.1(a) or subsection 1.3(b)(ii), whichever is applicable.
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.1, including
(without limitation) all registration, filing, NASD and qualification fees,
printers' and accounting fees, fees and disbursements of counsel for the
Corporation and the reasonable fees and disbursements of one counsel for the
selling Holders shall be borne by the Corporation; provided, however, that the
Corporation shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.1 that is subsequently withdrawn at the
request of the Holders; provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Corporation from that known to the
Holders at the time of their request and have withdrawn the request with
reasonable promptness following disclosure by the Corporation of such material
adverse change, then the Holders shall not be required to pay any of such
expenses and shall retain their rights pursuant to Section 1.1.
1.7 Expenses of Corporation Registration. The Corporation
shall bear and pay all expenses incurred in connection with any registration,
filing or qualification of shares of Registrable Securities with respect to the
registrations pursuant to Section 1.2 for each Holder, including (without
limitation) all registration, filing, and qualification fees, printers and
12
accounting fees relating to or apportionable thereto and the reasonable fees and
disbursements of one counsel for the selling Holders selected by them but
excluding underwriting discounts and commissions relating to shares of
Registrable Securities.
1.8 Expenses of Form S-3 Registration. All expenses incurred
in conection with a registration filed pursuant to Section 1.3, including
(without limitation) all registration, filing, qualification, printer's and
accounting fees and the reasonable fees and disbursements of one counsel for the
selling Holders selected by them and counsel for the Corporation shall be borne
by the Corporation.
1.9 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Corporation's capital stock, the
Corporation shall not be required under Section 1.2 to include any of the
Holders' securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Corporation and the underwriters and
then only in such quantity as the underwriters determine in their sole
discretion will not jeopardize the success of the offering by the Corporation.
If the total amount of securities, including shares of Registrable Securities,
requested by stockholders to be included in any underwritten offering exceeds
the amount of securities sold other than by the Corporation that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Corporation shall be required to include in the
offering only that number of such securities, including shares of Registrable
Securities, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so included to be
apportioned pro rata among the selling stockholders according to the total
amount of securities requested and entitled to be included therein by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders). For purposes of the preceding parenthetical
13
concerning apportionment, for any selling stockholder which is a holder of
shares of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and stockholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single "selling
stockholder," and any pro-rata reduction with respect to such "selling
stockholder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"selling stockholder," as defined in this sentence, which were requested to be
included in such registration statement.
1.10 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.11 Indemnification. In the event any shares of Registrable
Securities are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Corporation will
indemnify and hold harmless each Holder, its officers and directors, any
underwriter (as defined in the Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Act or the 1934
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
14
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a statement required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Corporation of the 1934 Act, any state securities
law or any rule or regulation promulgated under the Act, the 1934 Act, or any
state securities law; and the Corporation will pay to each such Holder,
underwriter or controlling person any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.11(a) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Corporation (which consent
shall not be unreasonably withheld), nor shall the Corporation be liable in any
such case for any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by any such Holder, underwriter or controlling
person.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Corporation, each of its directors, each of
its officers who has signed the registration statement, each person, if any, who
controls the Corporation within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
15
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly or used in connection with such registration; and each such Holder
will pay any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this subsection 1.11(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.11(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder, which consent shall not be unreasonably withheld; provided, that,
with respect to each Holder, in no event shall any indemnity under this
subsection 1.11(b) exceed the net proceeds from the offering received by such
Holder.
(c) Promptly after receipt by an indemnified party under
this Section 1.11 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.11 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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
16
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.11, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.11.
(d) If the indemnification provided for in this Section
1.11 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage, or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such, loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage, 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 or alleged 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
statement or omission; provided, however, that in no event shall the amount of
contribution under this Section 1.11(d) exceed the net proceeds from the
offering received by such Holder.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
17
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Corporation and Holders under
this Section 1.11 shall survive the completion of any offering of shares of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.12 Assignment of Registration Rights. The rights to cause
the Corporation to register shares of Registrable Securities pursuant to this
Section 1 may be assigned (but only with all related obligations) by a Holder to
(a) any partner or retired partner of any Holder which is a partnership or
member or retired member of any Holder which is a limited liability company,
(b) any family member or trust for the benefit of any individual Holder, (c) any
affiliate of such Holder, or (d) any transferee or assignee of such securities
who, after such assignment or transfer, holds at least 100,000 shares of
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations), provided: (i) the
Corporation is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(ii) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement; and (iii) such assignment shall be
effective only if immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the Act.
1.13 Limitations on Subsequent Registration Rights. From and
after the date of this Agreement, the Corporation shall not, without the prior
written consent of the Holders of a majority of the outstanding shares of
Registrable Securities, enter into any agreement with any holder or prospective
18
holder of any securities of the Corporation which would grant registration
rights which rank senior to the rights granted herein or otherwise allow such
holder or prospective holder (i) to include such securities in any registration
filed under Section 1.1 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of the shares of Registrable Securities of the Holders which
is included or (ii) to make a demand registration which could result in such
registration statement being declared effective within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 1.
1.14 Termination of Registration Rights. All rights and duties
provided for in this Section 1 shall terminate on the date on which all shares
of Registrable Securities held or entitled to be held upon exercise by each
Holder may immediately be sold under Rule 144 during any ninety (90)-day period.
2. MISCELLANEOUS.
2.1. Notices. All notices or other communications
required or permitted to be given pursuant to this Agreement shall be in writing
and shall be considered as duly given on (a) the date of delivery, if delivered
in person, by nationally recognized overnight delivery service or by facsimile
or (b) three days after mailing if mailed from within the continental United
States by registered or certified mail, return receipt requested to the party
entitled to receive the same, if to the Corporation, Global Gold Corporation,
000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, with a copy to Law Offices
of Xxxxxxx X. Field, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx
X. Field, Esq.; and if to any Holder, at his or its address as set forth in the
books and records of the Corporation. Any party may change his or its address by
19
giving notice to the other party stating his or its new address. Commencing on
the 10th day after the giving of such notice, such newly designated address
shall be such party's address for the purpose of all notices or other
communications required or permitted to be given pursuant to this Agreement.
2.2 Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws principles
of such State or of any other jurisdiction that would result in the application
of the laws of a jurisdiction other than such State. All parties hereto
(i) agree that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted only in a federal or state court in the
City of New York in the State of New York, and applicable appellate courts
therefrom (ii) waive any objection which they may now or hereafter have to the
laying of the venue of any such suit, action or proceeding, and
(iii) irrevocably submit to the jurisdiction of any federal or state court in
the City of New York in the State of New York in any such suit, action or
proceeding, but such consent shall not constitute a general appearance or be
available to any other person who is not a party to this Agreement. All parties
hereto agree that the mailing of any process in any suit, action or proceeding
in accordance with the notice provisions of this Agreement shall constitute
personal service thereof.
2.3 Entire Agreement; Waiver of Breach. This Agreement
constitutes the entire agreement among the parties and supersedes any prior
agreement or understanding among them with respect to the subject matter hereof,
and it may not be modified or amended in any manner other than as provided
herein; and no waiver of any breach or condition of this Agreement shall be
deemed to have occurred unless such waiver is in writing, signed by the party
20
against whom enforcement is sought, and no waiver shall be claimed to be a
waiver of any subsequent breach or condition of a like or different nature.
2.4 Binding Effect; Assignability. This Agreement and
all the terms and provisions hereof shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, successors and permitted
assigns. This Agreement and the rights of the parties hereunder shall not be
assigned except as otherwise set forth herein or with the written consent of all
parties hereto.
2.5 Captions. Captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision hereof.
2.6 Number and Gender. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
2.7 Severability. If any provision of this Agreement
shall be held invalid or unenforceable, such invalidity or unenforceability
shall attach only to such provision and shall not in any manner affect or render
invalid or unenforceable any other severable provision of this Agreement, and
this Agreement shall be carried out as if any such invalid or unenforceable
provision were not contained herein.
2.8 Amendments. This Agreement may not be amended except
in a writing signed by all of the parties hereto.
2.9 Compliance with Securities Laws. The Corporation
will use its best efforts to comply at all times with all applicable provisions
of the Act and the 1934 Act.
21
2.10 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. In addition, this Agreement may
contain more than one counterpart of the signature page and this Agreement may
be executed by the affixing of such signature pages executed by the parties to
one copy of the Agreement; all of such counterpart signature pages shall be read
as though one, and they shall have the same force and effect as though all of
the signers had signed a single signature page.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
22
IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first above written.
GLOBAL GOLD CORPORATION
By: ________________________________
Xxxxx X. Xxxxxxxxx, Chairman
and Chief Executive Officer
No. of Shares
Purchased FIREBIRD GLOBAL MASTER FUND, LTD.
---------
1,500,000
By:_________________________________
Name:
Title:
No. of Shares
Purchased FIREBIRD REPUBLICS FUND, LTD.
---------
750,000
By:_________________________________
Name:
Title:
No. of Shares
Purchased FIREBIRD AVRORA FUND, LTD.
---------
750,000
By:_________________________________
Name:
Title:
23
