Exhibit 10.12
EXHIBIT B
FORM OF NEW REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into effective as of May, 2003, by and between Xxxxxxxx Technologies,
Inc., a Florida corporation (the "COMPANY") and Eurotech, Ltd., a District of
Columbia corporation ("EUROTECH").
RECITALS
WHEREAS, as of the date hereof, Eurotech and Xxxxxxxx are entering into
an Exchange Agreement (the "EXCHANGE AGREEMENT"), pursuant to which Xxxxxxxx has
agreed to grant to Eurotech the registration rights set forth herein.
NOW, THEREFORE, to implement the foregoing and in consideration of the
mutual terms, conditions and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. PIGGYBACK REGISTRATION.
RIGHT TO PIGGYBACK REGISTRATION. Subject to the terms hereof, whenever
the Company proposes to register any Company Equity Securities under the
Securities Act (other than in connection with a registration statement for
Company Equity Securities issued pursuant to the Equity Line (as defined in the
Exchange Agreement) or pursuant to a registration statement on Form X-0, Xxxx
X-0 or any successor form) and the registration statement form to be used may be
used for the registration of Registrable Securities, the Company shall give
prompt written notice to Eurotech of its intention to effect such a
registration. Subject to Section 1(b) below, the Company shall include in such
registration and use commercially reasonable efforts to include in any
underwriting 10,000,000 shares of Registrable Securities held by Eurotech with
respect to which the Company has received a written request from Eurotech for
inclusion therein (such registration, a "PIGGYBACK REGISTRATION") within 15 days
after the receipt of the Company's notice.
PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold without materially and adversely affecting the marketability
of such offering or the timing thereof, the Company shall include in such
registration all Registrable Securities held by Eurotech on the condition that
Eurotech will agree to refrain from selling a reasonable number of such
Registrable Securities (as determined in good faith by the Company based on the
impact on the timing and marketability of the offering of the sale immediate by
Eurotech of all of its Registrable Securities) for a three (3) month period
following the declaration of effectiveness of the applicable registration
statement.
2. REGISTRATION PROCEDURES.
Whenever Eurotech has requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its reasonable best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective;
(b) notify Eurotech of the effectiveness of each registration statement
filed hereunder and prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
the prospectus included therein usable for a period commencing on the date that
such registration statement is initially declared effective by the SEC and
ending on the date when all Registrable Securities covered by such registration
statement have been sold pursuant to the registration statement or cease to be
Registrable Securities, and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to Eurotech such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by Eurotech;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as Eurotech reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable Eurotech to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by Eurotech; provided, that the Company shall not be required to: (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph; (ii) subject itself
to taxation in any such jurisdiction; or (iii) consent to general service of
process in any such jurisdiction;
(e) notify Eurotech, at any time when a prospectus relating thereto 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
contains an untrue statement of a material fact or omits any fact necessary to
make the statements therein not misleading, and, at the request of Eurotech, the
Company shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
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(f) cause all such Registrable Securities to be listed or quoted on
each securities exchange or market on which similar securities issued by the
Company are then listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) in order to expedite or facilitate the disposition
of such Registrable Securities;
(i) make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, managers, employees and independent
accountants to supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months beginning with the first day of the Company's first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in such registration statement for sale in
any jurisdiction, the Company shall use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) subject to Section 2(d) above, use its reasonable best efforts to
cause any Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the sellers thereof to consummate the disposition
of such Registrable Securities; and
(m) if the offering is underwritten, use its reasonable best efforts to
furnish on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration, an opinion dated such date
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters covering such issues as are reasonably required by
such underwriters.
3. REGISTRATION EXPENSES.
(a) PAYMENT OF REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public accountants,
underwriters (excluding underwriting discounts and commissions relating to the
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Registrable Securities) and other Persons retained by the Company (all such
expenses being herein called "REGISTRATION EXPENSES"), shall be borne by the
Company. The Company shall, in addition, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance and the expenses and
fees for listing or quoting the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASDAQ Stock Market.
(b) PAYMENT OF REGISTRATION EXPENSES BY HOLDERS OF REGISTRABLE
SECURITIES. To the extent Registration Expenses are not required to be paid by
the Company (including, without limitation, any underwriting discounts or
commissions that are the responsibility of the holders of Registrable
Securities), each holder of Eurotech shall pay those Registration Expenses
allocable to the registration of Eurotech's securities so included, and any
Registration Expenses not so allocable shall be payable by all sellers of
securities included in such registration in proportion to the aggregate selling
price of the securities to be so registered.
4. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify, to
the extent permitted by law, Eurotech, its officers, directors, employees,
agents and representatives and each Person who controls Eurotech (within the
meaning of the Securities Act) against all losses, claims, damages, liabilities
and expenses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such holder
expressly for use therein, results from the failure of Eurotech to provide
information necessary for the registration statement to the Company, or by
Eurotech's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
holder with a sufficient number of copies of the same.
(b) INDEMNIFICATION BY EUROTECH. In connection with any registration
statement in which Eurotech is participating, Eurotech shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
officers, directors, employees, agents and representatives and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto resulting from such information provided by Eurotech or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading and not provided by
Eurotech; provided that the obligation to indemnify shall be be limited to the
net amount of proceeds received by Eurotech from the sale of Registrable
Securities pursuant to such registration statement.
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(c) PROCEDURE FOR INDEMNIFICATION. Any Person entitled to
indemnification hereunder shall (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
(provided that the failure to give prompt notice shall not impair any Person's
right to indemnification hereunder to the extent such failure has not prejudiced
the indemnifying party) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party shall not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent shall not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim. Notwithstanding anything in
this Section 4(c) to the contrary, in the event the Company determines, in good
faith, that a claim materially affects the interests of the Company, the Company
may solely control the defense of such claim with counsel reasonably
satisfactory to the Company. In the event the Company is an indemnified party
pursuant to this Section 4, the indemnifying party may be subject to liability
if the Company settles a claim in good faith and in a reasonable manner.
5. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Eurotech may not participate in
any registration hereunder unless Eurotech:
(a) in the case of a registration which is underwritten, agrees to sell
Eurotech's securities on the basis provided in any underwriting arrangements
approved by the Company;
(b) as expeditiously as possible, notifies the Company, at any time
when a prospectus relating to such Eurotech's Registrable Securities is required
to be delivered under the Securities Act, of the happening of any event as a
result of which such prospectus contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading; and
(c) completes, executes and delivers all questionnaires, powers of
attorney, indemnities, underwriting agreements and other usual and customary
documents necessary or appropriate with respect to the offering of such
Eurotech's Registrable Securities, and in the case of a registration which is
underwritten, necessary or appropriate under the terms of such underwriting
arrangements (subject to the provision in Section 5(a) above).
6. DEFINITIONS.
(a) The term "CAPITAL STOCK" means and includes (a) any and all shares,
interests, participations or other equivalents of or interests in (however
designated) corporate stock, including shares of preferred or preference stock
and (b) all equity or ownership interests in any Person of any other type,
including any securities convertible into or exchangeable for any of the
foregoing or any options, warrants or other rights to subscribe for, purchase or
acquire any of the forgoing.
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(b) The term "COMPANY EQUITY SECURITIES" means any Capital Stock of the
Company or options, warrants or other rights acquire Capital Stock of the
Company.
(c) The term "PERSON" means any individual, Company, partnership, joint
venture, association, joint-stock company, limited liability company, trust or
unincorporated organization.
(d) The term "REGISTRABLE SECURITIES" means all of the Company Equity
Securities; PROVIDED, HOWEVER, that as to any particular Registrable Securities
that have been issued, 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 under such registration statement, (ii) all Registrable
Securities owned by a holder thereof may be resold in a single 90-day period
pursuant to Rule 144 under the Securities Act (or any similar rule then in
force), (iii) they shall have been distributed to the public pursuant to Rule
144 under the Securities Act (or any similar rule then in force), (iv) they
become available for sale under Rule 144(k) under the Securities Act (or any
similar rule then in force), or (v) they shall have ceased to be outstanding.
(e) The term "SEC" mean the United Stated Securities and Exchange
Commission.
(f) The term "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any similar federal law then in force.
(g) The term "SECURITIES EXCHANGE ACT" means the Securities Exchange
Act of 1934, as amended, or any similar federal law then in force.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to Eurotech under this Agreement, and in the event
that any such agreement is entered into by the Company, the terms and provisions
of this Agreement will prevail over those contained in any such agreement.
(b) REMEDIES. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and Eurotech.
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(d) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Upon any
transfer of Registrable Securities, the holder of the Registrable Securities
shall use its best efforts to have the new holder of Registrable Securities sign
a joinder agreement pursuant to which such transferee shall agree to be bound by
the terms of this Agreement applicable to the holder of such Registrable
Securities, provided that, even in the absence of such joinder agreement, by
taking and holding such Registrable Securities, such new holder shall be
conclusively deemed to have agreed to be bound by the terms hereof applicable to
such new holder.
(e) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may be
executed simultaneously in two or more counterparts, any one of which need not
contain the signatures of more than one party, but all such counterparts taken
together shall constitute one and the same Agreement. Each party to this
Agreement agrees that it will be bound by its own facsimile signature and that
it accepts the facsimile signature of each other party to this Agreement.
(g) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) GOVERNING LAW. This Agreement shall be construed and governed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
(i) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered in conformance
with the applicable provisions of the Exchange Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXX TECHNOLOGIES, INC.
By: /S/ Xxxxxxx X. Xxxxx, Xx
----------------------------
Name: Xxxxxxx X. Xxxxx, Xx
Title: Executive Vice President
EUROTECH, LTD.
By: /S/ Xxx X. Xxxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxxx
Title: President
[Signature Page to Registration Rights Agreement]
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