1
EXHIBIT 10.47
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT, dated as of January 6, 1998 (this
"Agreement") between BINHAD, INC. (formerly known as CAPITOL METALS CO.,
INC.), a California corporation (the "Holder"), and CONSOLIDATED CAPITAL OF
NORTH AMERICA, INC., a Colorado corporation (the "Company"), is made with
reference to the following facts:
A. Pursuant to the terms of an Asset Purchase Agreement
dated as of December 1, 1997 (the "Asset Purchase Agreement"), between the
Company, as purchaser ("Purchaser"), and the Holder, as seller, and the Order
Approving Sale of Substantially All Property of the Estate Free and Clear of
Liens and Interests, entered December 29, 1997, in the U.S. Bankruptcy Court
(the "Sale Order"), the Company issued 269,349 common shares of the Company to
the Holder (the "Initial Shares") and the Holder may be entitled to receive
additional common shares of the Company as set forth in the Sale Order (the
"Additional Shares"). The Initial Shares issued to the Holder on the date of
this Agreement and any and all such Additional Shares that may be issued to the
Holder pursuant to the Sale Order are referred to collectively herein as the
"Shares".
B. The Company's execution and delivery of this
Agreement with respect to the Shares is a condition of the Holder's obligation
to consummate the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises contained herein, the parties agree as follows:
1. Definitions. The following terms, when used herein,
shall have the meanings set forth below:
(a) "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
(b) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(c) "Holder" shall mean the person or entity set
forth above or any assignee thereof in accordance with Section 10 hereof.
(d) The term "register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such registration
statement or document.
(e) "Registrable Securities" shall mean (i) the
Shares, and (2) any common stock of the Company issued as a dividend or other
distribution with respect to, or in
1
2
exchange for or in replacement of, the Shares, excluding in all cases, however,
any Registrable Securities sold by a person in a transaction in which the
rights of such person under this Agreement are not assigned.
(f) "Securities Act" shall mean the Securities
Act of 1933, as amended.
2. Registration. The Company shall cause to be
registered all of the Registrable Securities under the Securities Act. In
connection with such registration, the Company shall:
(a) Prepare and file with the Commission a
registration statement as soon as practical but in any event no later than 90
days after the "Closing Date" as such term is defined in the Asset Purchase
Agreement (the "Filing Date"), which registration statement shall include the
Initial Shares, and thereafter use its best efforts to have such registration
statement declared effective within 30 days of the Filing Date. In the event
any Additional Shares are issued after the Effective Date the Company shall
prepare and file with the Commission an amendment to the registration statement
as soon as practical but in any event no later than 10 days after the Effective
Date and shall thereafter use its best efforts to have such amendment to the
registration statement declared effective as soon as practicable. The Company
shall keep the registration statement effective for a period of 120 days after
the Effective Date.
(b) Prepare and file with the Commission 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 Securities Act with respect to the
disposition of all securities covered by such registration statement and to
keep the registration statement and any amendment and supplement thereto
effective for the period specified in Section 2(a).
(c) Furnish to the Holder such numbers of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as the Holder may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by the Holder.
(d) Use its best efforts to register and qualify
the securities covered by such registration statement in the State of
California and under such other securities or Blue Sky laws of such other
jurisdictions as shall be reasonably requested by the Holder, provided that the
Company shall not be required to qualify to do business or to file a general
consent to service or process in any such other jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering, including any reasonably required opinions of counsel or cold comfort
letters. If the Holder participates in such underwriting the Holder shall also
enter into and perform its obligations under such agreement.
2
3
(f) Notify the Holder at any time when a
prospectus relating to the Registrable Securities covered by such registration
statement is required to be delivered under the Securities 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, and at the request of the Holder prepare and furnish to such
Holder 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.
3. Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
Section 2 with respect to the Registrable Securities of the Holder that the
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of the Holder's
Registrable Securities.
4. Expenses of Registration. The Company shall bear and
pay all expenses incurred in connection with the registration, filing or
qualification of Registrable Securities with respect to the registration
pursuant to Section 2 and the requirements of Section 3 for the Holder,
including (without limitation) all registration, filing, and qualification
fees, printers and accounting fees relating thereto and the fees and
disbursements of counsel for the Company, but excluding underwriting discounts
and commissions relating to Registrable Securities.
5. Adjustment for Stock Split or New Issuance. All
references to the number of Shares and their value in this Agreement shall be
appropriately adjusted to reflect any stock split, stock dividend, or new
issuance of stock or other change in the Shares which may be made by the
Company after the date of this Agreement.
6. Delay of Registration. The Holder shall not 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 Agreement.
7. Indemnification. In the event any Registrable
Securities are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company
shall indemnify and hold harmless the Holder, any underwriter (as defined in
the Securities Act) for the Holder and each person, if any, who controls the
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act, against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof)
3
4
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 (but only if such is not corrected in the
final prospectus) contained therein or any amendments or supplements thereto,
(ii) 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 (but only if such is not corrected in the final prospectus), or
(iii) any violation or alleged violation by the Company in connection with the
registration of Registrable Securities of the Securities Act, the Exchange Act,
any state securities law or any rule or regulation promulgated under the
Securities Act, the Exchange Act or any state securities law; and the Company
will pay to the Holder, and any underwriter or controlling person, as incurred,
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 Section 7(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
Company (which consent shall not be unreasonably withheld), nor shall the
Company 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 the Holder,
or any underwriter or controlling person of the Holder.
(b) To the extent permitted by law, the Holder
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who has signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter, any other shareholder selling securities in such registration
statement and any controlling person of any such underwriter or other
shareholder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, the Exchange 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 to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by the Holder expressly for use in connection
with such registration; and the holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this Section 7(b), in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 7(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, in no event shall any indemnity
under this Section 7(b) exceed the gross proceeds from the offering received by
the Holder.
(c) Promptly after receipt by an indemnified
party under this Section 7 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
7, deliver to the indemnifying party a written notice of the commencement
4
5
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 shall have the right to retain its own 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 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 7, 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 7.
(d) The obligations of the Company and Holder
under this Section 7 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Agreement.
8. Assignment of Registration Rights. The registration
rights granted hereunder may be assigned by the Holder to a transferee or
assignee of the Registrable Securities; provided, however, that, except for a
transfer to Xxxxxx X. Eget, the Company 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; and provided, further, that 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 Securities Act.
9. Amendment of Agreement. Any provision of this
Agreement may be amended or the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holder.
Any amendment or waiver effected in accordance with this Section shall be
binding upon the Holder, each future holder of all the Registrable Securities,
and the Company.
10. Contents of Agreement. This Agreement sets forth the
entire understanding of the parties hereto with respect to the transactions
contemplated hereby. Any and all previous agreements and understandings
between or among the parties regarding the subject matter hereof, whether
written or oral, are superseded by this Agreement.
11. Notices. Any notice, request, demand, waiver,
consent, approval or other communication which is required or permitted
hereunder shall be in writing and shall be deemed given only if delivered
personally or sent by registered or certified mail, postage prepaid, as
follows:
5
6
If to the Company, to:
CONSOLIDATED CAPITAL OF NORTH AMERICA, INC.
000-00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Secretary
With a required copy to:
XXXXXXXXX, XXXXXX & XXXXXX
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
If to Holder:
BINHAD, INC. (formerly known as CAPITOL
METALS CO., INC.)
c/o Xxxxxx X. Eget
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a required copy to:
SULMEYER, KUPETZ, XXXXXXX & XXXXXXX
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as
of the date so delivered.
12. California Law to Govern. This Agreement shall be
governed by and interpreted and enforced in accordance with the laws of the
State of California, without reference to conflicts-of-law principles.
13. Headings. All section headings contained in this
Agreement are for convenience of reference only, do not form a part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
14. Severability. Any provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions
6
7
hereof, and any such invalidity or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
15. Counterparts. This Agreement may be executed in
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more counterparts
taken together shall have been executed and delivered by the parties. It shall
not be necessary in making proof of this Agreement or any counterpart hereof to
produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by its duly authorized officer on the date first above written.
BINHAD, INC. (formerly known as
CAPITOL METALS CO., INC.)
a California corporation
By: /s/ Xxxxxx X. Eget
-----------------------------------
Xxxxxx X. Eget
Chief Executive Officer
CONSOLIDATED CAPITAL OF NORTH AMERICA,
INC., a Colorado corporation
By: /s/ Xxxxxxxxx Xxxx
-----------------------------------
Xxxxxxxxx Xxxx
Chief Executive Officer
7
8
January 8, 1998
Board of Directors
Consolidated Capital of North America, Inc.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
To the Board of Directors:
In connection with the issuance of 269,349 common shares (the
"Shares") of Consolidated Capital of North America, Inc., a Colorado
corporation ("Consolidated"), to Binhad, Inc. (formerly known as Capitol Metals
Co., Inc.), a California corporation ("Seller"), pursuant to the terms of an
Asset Purchase Agreement, dated as of December 1, 1997 (the "Asset Purchase
Agreement") between Consolidated ("Purchaser") and Seller, and the Order
Approving Sale of Substantially All Property of the Estate Free and Clear of
Liens and Interests, entered December 29, 1997 in the U.S. Bankruptcy Court
(the "Sale Order"), pursuant to which the Purchaser has purchased substantially
all of the assets of Seller and assumed certain liabilities of Seller, the
undersigned acknowledges, represents, warrants and agrees to the following:
1. The Seller is acquiring the Shares for investment
purpose only, and without intent to distribute the Shares, and acknowledges
that: (i) the Shares have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), nor any applicable state securities
law, and accordingly constitute "restricted securities" for purposes of the
Securities Act and such state securities laws, (ii) the Seller will not be able
to transfer the Shares except upon compliance with the registration
requirements of the Securities Act and applicable state securities laws or
exemptions therefrom; (iii) the certificates evidencing the Shares will contain
a restrictive legend to the foregoing effect (as provided below); (iv) the
purchase of the Shares is speculative and involves a high degree of risk; and
(v) the Seller is able to sustain the loss of the entire amount of its
investment in the Shares.
2. The Seller acknowledges receipt of (a) Consolidated's
Form 10-KSB for the fiscal year ended December 31, 1996, (b) Consolidated's
Form 10-QSB for the quarter ended March 31 and September 30, 1997, (c)
Consolidated's Form 10-QSB for the quarter ended June 30, 1997 and (d)
Consolidated's Form 8-Ks dated January 23, 1997 and February 7, 1997.
3. The Seller (i) has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of purchasing the Shares, or (ii) has been advised by attorneys,
accountants, or other representatives having such knowledge and experience.
The Seller acknowledges that it, its attorneys, accountants and other
representatives have, prior to its execution of the Asset Purchase Agreement
and the entry of the Sale Order, the opportunity to ask questions of, and to
receive answers from Consolidated and Purchaser concerning Consolidated and
Purchaser, its affiliates, business and financial condition.
4. The Seller will offer to sell and sell the Shares
only in accordance with the registration provisions of the Securities Act, and
accordingly, will offer to sell and sell the Shares only pursuant to an
8
9
effective registration statement filed with the U.S. Securities and Exchange
Commission, or pursuant to an exemption from registration under the Securities
Act.
5. The Seller will not offer to sell or sell the Shares
in any jurisdiction except under circumstances that will result in compliance
with the applicable laws thereof, and, except as provided in the Registration
Agreement between the Purchaser and the Seller of even date herewith, the
Seller will take at its own expense whatever action is required to permit
offers, sales or the purchase and resale by it of the Shares.
6. The certificates evidencing the Shares will contain a
restricted legend substantially similar to the following:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY OTHER STATE LAWS REGULATING THE ISSUANCE OF
SECURITIES AND ARE PURCHASED PURSUANT TO AN INVESTMENT
REPRESENTATION BY THE PURCHASER THEREOF. THESE SHARES SHALL
NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, DONATED, OR
OTHERWISE TRANSFERRED, WHETHER OR NOT FOR CONSIDERATION BY THE
PURCHASER IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES EXCEPT UPON THE ISSUANCE TO THE
COMPANY OF A FAVORABLE OPINION OF ITS COUNSEL TO THE EFFECT
THAT SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES
ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS.
7. The Seller shall indemnify and hold harmless
Consolidated, each person who controls Consolidated within the meaning of the
Securities Act, and each current officer and director of Consolidated, against
losses, claims, damages or liabilities, joint or several, to which Consolidated
or any of its officers or directors may become subject to under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based solely and exclusively
upon any breach or violation by the Seller of its representations and
agreements contained in this letter, and shall reimburse Consolidated, and its
officers and directors for any legal and any other expense reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage or liability or action. The rights to indemnification provided for in
this Investment Letter shall be in addition to and not in substitution of any
other rights or remedies to which Consolidated or such officer or director may
be entitled under the Asset Purchase Agreement, in equity or otherwise.
IN WITNESS WHEREOF, the Seller has executed this letter as of
the date set forth above.
BINHAD, INC. (formerly known as
CAPITOL METALS CO., INC.)
By: /s/ Xxxxxx X. Eget
--------------------------------
Xxxxxx X. Eget
Chief Executive Officer
9
