EXHIBIT 7.10 ASI
REGISTRATION RIGHTS AGREEMENT
DATED: SEPTEMBER 27, 1996
With reference to that certain Agreement and Plan of Merger
dated September 11, 1996 by and among (i) Commodore Applied Technologies, Inc.,
a corporation organized and existing under the laws of the State of Delaware
("CXI"); (ii) CXI-ASI Acquisition Corp., a corporation organized and existing
under the laws of New Mexico and a wholly owned subsidiary of CXI
("Acquisition"); Advanced Sciences, Inc., a corporation organized and existing
under the laws of New Mexico ("Sciences"); and (iv) the owners of all of the
issued and outstanding shares of capital stock of Sciences listed on the
signature pages hereto (the "Sciences Shareholders"), whereby the Sciences
Shareholders and Commodore have agreed that Acquisition will be merged with and
into Sciences, pursuant to which merger the Sciences Shareholders will surrender
the issued and outstanding shares of Common Stock of Sciences in exchange for
shares of the Common Stock of CXI to be issued to the Sciences Shareholders, and
in order to induce the Sciences Shareholders to enter into the Agreement and
Plan of Merger, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. (a) If, at any time on or after September 27, 1996 CXI
proposes to register any of its equity securities under the Securities Act of
1933, as amended (the "Securities Act"), on a registration statement on Form
S-1, Form S-2 or Form S-3 (or an equivalent general registration form then in
effect) (the "Registration Statement") for purposes of a sale by CXI of such
equity securities for its own account, on each such occasion CXI shall give
prompt written notice of its intention to do so to each of the Sciences
Shareholders (collectively, the "Stockholders" and individually, a
"Stockholder") who holds of record shares of the Common Stock of CXI issued
pursuant to the Agreement and Plan of Merger (the "Registrable Securities").
Upon the written request of any such Stockholder, given within fifteen (15) days
following the receipt of any such written notice (which request shall specify
the Registrable Securities intended to be disposed of by such Stockholder and
the intended method of distribution thereof), CXI will use its best efforts to
include in such registration statement any or all of the Registrable Securities
identified by the Stockholder requesting such registration in such notice to the
extent necessary to permit the sale or other disposition of the shares
constituting Registrable Securities to be so registered. Any Stockholder shall
have the right to withdraw a request to include Registrable Securities in any
registration statement filed pursuant to this Section 1(a) by giving written
notice to CXI of its election to withdraw such request at least five (5) days
prior to the proposed filing date of such registration statement. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities 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, or (ii) as to the Stockholders, such securities may be sold under
Rule 144 (or any successor provision) under the Securities Act, (iii) such
securities shall have been
otherwise transferred and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by CXI, or (iv) such
securities shall have ceased to be outstanding.
(b) If the managing underwriter for any offering of
Registrable Securities effected pursuant to Section 1(a) of this Agreement shall
advise CXI and the holders of Registrable Securities in writing that the
inclusion in any registration effected pursuant to this Agreement of some or all
of the Registrable Securities sought to be registered creates a substantial risk
that the proceeds or the price per unit CXI or such Stockholders will derive
from such offering will be reduced or that the number of securities to be
registered (including those sought to be registered at the instance of CXI as
well as those sought to be registered by Stockholders holding Registrable
Securities) is too large a number to be reasonably sold, CXI will include in
such registration to the extent which CXI is so advised they can be sold in such
offering (the "Maximum Number"), either (i) the number of securities sought to
be registered by each seller (which term shall include CXI and each Stockholder
holding Registrable Securities) pro rata among such sellers in proportion to the
number of securities sought to be registered by all such sellers or, at the
option of CXI, (ii) (A) first, securities to be registered at the instance of
CXI, and (B) second, if the number of securities to be registered under clause
(A) is less than the Maximum Number, securities to be registered by all other
sellers pro rata as aforesaid.
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, 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 APPLICABLE STATE BLUE SKY
OR SECURITIES LAWS OR ANY EXEMPTIONS FROM SUCH REGISTRATION OR
QUALIFICATION REQUIREMENTS ARE AVAILABLE."
At such time as any Registrable Securities cease to be Registrable Securities
pursuant to clauses (i), (ii) or (iii) of Section 1(a), 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
such legended certificate.
3. If any of a Stockholder's 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,
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final prospectus and such other documents as such Stockholder may reasonably
request in order to facilitate the public offering of the Registrable
Securities.
4. If any of a Stockholder's 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 the Stockholders participating in such registration 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 any of a Stockholder's Registrable Securities are
registered hereunder, CXI shall notify such Stockholder, 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 any of a Stockholder's Registrable Securities are
registered hereunder, CXI shall advise such Stockholder, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order by
the Commission suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for the 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 any of a Stockholder's Registrable Securities are
registered hereunder, 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 and 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) the Stockholders agree to
bear, pro rata (or as they may otherwise agree), all fees and disbursements of
counsel for Stockholders and any discounts, commissions and fees of any
underwriters, brokers and dealers with respect to the Registrable Securities
sold in connection with such registration.
8. (a) CXI hereby agrees to indemnify and hold harmless each
Stockholder from and against, and agrees to reimburse such Stockholder with
respect to, any and all claims, actions (actual or threatened), demands, losses,
damages, liabilities, costs and expenses to which such Stockholder 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,
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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 such Stockholder for use in the preparation
thereof.
(b) Each Stockholder 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 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 such Stockholder 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 or
parties 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 or
they have been prejudiced substantially thereby. The Indemnifying Person shall
have the right to conduct, at it or their expense, through counsel of its or
their 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 which 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 in
addition to the Stockholders who have executed this Registration Rights
Agreement; 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.
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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
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
STOCKHOLDERS:
(1) Xx X. and Xxxxx Xxxxxx Irrevocable Trust
By:/s/ Xx X. Xxxxxx
---------------------------------
Xx X. Xxxxxx, Trustee
By:/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, Trustee
(2)/s/ Xx X. Xxxxxx
---------------------------------
Xx X. Xxxxxx, individually
(3)/s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, individually
(4)/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
(5)/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
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(6) The Irrevocable Trust for the Benefit of
the Children of Xx X. and Xxxxx Xxxxxx
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
(7) Xxxxx Theres Xxxxxxx Irrevocable Trust
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
(8) Xxxxxx Xxxxx Xxxxxx Irrevocable Trust
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
(9) Xxxxxx Xxxxx Xxxxxx Irrevocable Trust
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
(10) Xxxxxxx Xxxxx Xxxxxx Irrevocable Trust
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
(11) Xxxxxx Xxxx Xxxxxx Irrevocable Trust
By:/s/ Xxxxxx Xxxxxx, III
---------------------------------
Xxxxxx Xxxxxx, III, Trustee
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