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EXHIBIT 10.34
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement ("Agreement") made as of this 23rd day of
October, 1996, by and between the Placement Agent ("Agent") and Lithium
Technology Corporation, a Delaware corporation (the "Company")
WITNESSETH
WHEREAS, the Company and Agent have entered into (i) a stock purchase
agreement of even date herewith (the "Stock Purchase Agreement") pertaining to
the Agent Shares (as defined therein) and (ii) a warrant certificate of even
date herewith (the "Agent Warrant") pertaining to the "Warrant Shares" (as
defined therein); and
WHEREAS, the Company and Agent desire to provide herein for certain
registration rights applicable to the Agent Shares and the Warrant Shares
(hereinafter collectively referred to as the "Registerable Securities").
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency which are hereby acknowledged, the Company and Agent hereby agree as
follows:
Agent shall be entitled to have the Company register the Registerable
Securities pursuant to one "demand registration" as described in paragraph I
hereof and up to two "piggyback registrations" as described in paragraph II
hereof.
I. At any time on or after the date hereof, and before the five year
anniversary of the date hereof, Agent shall have the right, on one and
only one occasion, to require the Company to file a Registration
Statement covering the Registerable Securities; provided, however, that
such registration shall include the following minimum amounts: (a) at
least one-half of the Warrant Shares and (b) at least one-half of the
Agent Shares. To effect such demand right Agent shall notify the
Company in writing, and thereafter the Company shall cause to be filed
a registration statement pursuant to the provisions of paragraph III.
Upon receipt of such written request for registration from Agent, the
Company shall be entitled, but not required, to include in such
registration statement the registration of shares for sale for the
Company's account and/or selling shareholders' accounts.
II. If, at any time, the Company proposes to register any shares of the
Company's common stock or any class of common stock
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issued with respect therefor or in exchange therefor under the
Securities Act of 1933, as amended (the "Act") or similar federal
statute (other than on Form S-8 or any successor to be offered to
employees of an issuer pursuant to an employee benefit plan) except the
Xxxxxxx & Co. Underwritten Offering as described in the Company's Note
Purchase Agreements of even date herewith, the Company shall give at
least twenty days' prior written notice thereof to Agent and, upon the
written request of Agent (due within twenty days after Agent's receipt
of the aforesaid notice from the Company), include in such
registration, at the cost and expense of the Company, any Registerable
Securities; provided, however, that the Company shall not be obligated
to do so at Agent's request more than twice; and provided, further,
that if, in connection with any offering involving an underwriting of
Common Stock to be issued by the Company, the managing underwriter
shall impose a limitation on the number of shares of such Common Stock
which may be included in any such registration statement because, in
its reasonable judgment, such limitation is necessary to effect an
orderly public distribution, and such limitation is imposed pro rata
with respect to all securities whose holders have a contractual,
incidental ("piggy back") right to include such securities in the
registration statement and as to which inclusion has been requested
pursuant to such right and there is first excluded from such
registration statement all securities of the Company sought to be
included therein by any holder thereof not having any such contractual,
incidental registration rights, then the Company shall be obligated to
include in such registration statement only such limited portion of the
Registrable Shares with respect to which such holder has requested
inclusion hereunder. No incidental right under this Section II shall be
construed to limit any registration required under Section I. The
Company shall effect such registration referred to in this paragraph II
at its own cost and expense and shall maintain the effectiveness of
such registration so long as the expense of doing so is not unduly
burdensome and, in any event, for a period of six months subsequent to
the effective date of such registration. The Company and Agent shall
effect such registration described in paragraph II pursuant to the
provisions of paragraph III hereof.
III. In connection with any registration referred to in paragraphs I and II,
the Company shall comply with all applicable rules and regulations of
the Securities and Exchange Commission, or of any similar federal
commission, including the Rules and Regulations under the Act.
A. The Company agrees to furnish to Agent at its own expense, such
number of prospectuses conforming to the requirements of the Act or any
similar federal statute, and the rules and Regulations thereunder,
relating to the
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Registerable Securities subject thereto as may from time to time be
requested by Agent. Further, the Company shall, at its own expense in
connection with any registration under this Agreement:
(1) to register or qualify the securities covered by such
registration statement under the securities or blue sky laws of
such jurisdictions as Agent shall reasonably request, and do any
and all other acts and things which may be necessary or advisable
to enable Agent or any underwriter to offer such Registerable
Securities for them to consummate the disposition thereof in such
jurisdictions, during a period of nine months subsequent to the
effective date of such registration statement; provided, however,
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not then so qualified;
(2) (A) notify Agent at any time when a prospectus relating
to Agent's Registerable Securities is required to be delivered
under the Act, of the happening of any event which the Company, in
its best judgment, believes would make a supplement to, or an
amendment of, such prospectus necessary or appropriate, and (B) at
the request of Agent prepare and furnish thereto a reasonable
number of copies of any supplement to, or any amendment of, such
prospectus that may be necessary so that, as thereafter delivered
to the purchasers of its shares of Common Stock, such prospectus
shall not include any 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 in the
light of the circumstances then existing.
B. In the event of the registration of any Registerable Securities,
the Company shall indemnify Agent and shall hold Agent harmless against
any losses, claims, damages or liabilities, joint or several, to which
Agent may become subject under the Act or any similar federal statute,
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registerable
Securities are registered under the Act or similar federal statute, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or arise out of, or are based upon,
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, and shall reimburse Agent for any legal or any
other expenses reasonably incurred by them in connection with
investigation
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or defending any such loss, claim, damage, liability or action;
provided, however, that to the extent that any such loss, claim, damage
or liability arises out of, or is based upon, an actual or alleged
untrue statement or omission made in such registration statement,
preliminary prospectus, final prospectus, amendment or supplement in
reliance upon, and in conformity with, written information furnished to
the Company through an instrument duly executed by Agent specifically
for use in the preparation thereof, the Company shall not be so liable
to Agent.
C. In the event of the registration of any Registerable Securities,
Agent shall indemnify (up to an aggregate of $100,000 payable in cash
or the common stock of the Company valued at the Current Market Value
(as defined in the Stock Purchase Agreement) on the date of any such
indemnity payment) the Company, each director of the Company, each
officer of the Company who signs such registration statement, and any
person who controls the Company within the meaning of the Act and shall
hold each of the same harmless against any losses, claims, damages or
liabilities, to which any of the same may become subject under the Act
or any similar federal statute, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such Registerable Securities are registered under the Act
or similar federal statute, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto,
or arise out of, or are based upon, 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 if such actual
or alleged untrue statement or omission was made in reliance upon, and
in conformity with, any written statement furnished to the Company
pursuant to this Section by Agent specifically for use in the
preparation of such registration statement, preliminary prospectus,
final prospectus or amendment or supplement, and Agent shall reimburse
any of the same for any legal or any other expenses reasonably incurred
by them in connection with investigation or defending any such loss,
claim, damage, liability or action.
D. It shall be a condition precedent to the obligation of the Company
to take any action pursuant to this Agreement relating to the
registration of any Registerable Securities, that the Company shall
have received from Agent and from each underwriter of such shares of
common stock, one or more written statements setting forth all
information with respect to Agent or such underwriter, Agent's shares
of Common Stock and the transaction or transactions which Agent
contemplates
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with respect thereto, which any law, rule or regulation requires to be
included in any registration statement with respect thereto.
IV. A. Agent agrees that it shall be responsible for, and shall pay to
the Company 50% of the costs and expenses (including, without
limitation printing costs and attorneys fees) in connection with
preparing the registration statement referred to in Paragraph I hereof
and related expenses covering such shares.
B. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by
any standard form of facsimile or overnight courier telecommunication.
Notices to Agent shall be directed to Agent at the address set forth on
the signature page of this Agreement; and notices to the Company shall
be directed to it at 0000 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, XX
00000-0000, Attn: Xxxxxx X. Xxxxxxx, Chairman and Chief Executive
Officer.
C. This Agreement shall inure to the benefit of and be binding upon
the Company and Agent and their respective successors and assigns.
D. This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
E. This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Company and Agent have executed and delivered
this Agreement as of the date first above written.
LITHIUM TECHNOLOGY CORPORATION
By:____________________________________
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Agent
By:____________________________________
Name: ______________________________
Title:______________________________
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