FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit
4.13
FORM
OF
This
Registration Rights Agreement, dated as of ____________, 2004 is entered
into between Magnetech Integrated Services Corp. an Indiana corporation (the
“Company”) and the Purchasers listed on Schedule 1 hereto (each a
“Holder”).
The
parties hereto agree as follows.
1. Registration
Rights.
1.1 Definitions.
For
purposes of this Agreement:
(a) The
term
“Act”
means
the Securities Act of 1933, as amended.
(b) The
term
“Form
S-3”
means
such form under the Act as in effect on the date hereof or any successor
form
under the Act that permits inclusion or incorporation of substantial information
by reference to the Company’s prior and subsequent public filings under the 1934
Act.
(c) The
term
“Common
Stock”
means
the common stock of the Company.
(d) The
term
“Holder”
means
the Purchasers listed on Schedule 1 hereto and any assignee thereof in
accordance with Section 1.12 hereof.
(e) The
term
“1934
Act”
shall
mean the Securities Exchange Act of 1934, as amended, or any similar successor
federal statute and the rules and regulations thereunder, all as the same
shall
be in effect from time to time.
(f) The
term
“Other
Stockholders”
shall
mean persons other than Holders who, by virtue of agreements with the Company,
are entitled to include their securities in certain registrations
hereunder.
(f) The
term
“Placement
Agency Agreement”
shall
that that certain placement agency agreement amoung Strasbourger Xxxxxxx
Tulcin
Xxxxx Inc and Magnetech Industrial Services, Inc. and Magnetech Integrated
Services Corp. dated April 26, 2004.
(g) The
term
“register”,
“registered,”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
or
similar document in compliance with the Act, and the declaration or ordering
of
effectiveness of such registration statement or document.
(h) The
term
“Registrable
Securities”
means
(i) the shares of Common Stock issued to the Holders pursuant to the Stock
Purchase Agreements and the shares issuable upon the exercise of the warrants
issued to Strasbourger Xxxxxxx Tulcin Xxxxx, Inc. pursuant to the Placement
Agency Agreement, and (ii) any other shares of Common Stock of the Company
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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, any Registrable Securities sold by a person
in
a private transaction in which his rights under this Agreement are not assigned
or any shares of Common Stock which have been sold to the public either pursuant
to a registration statement or Rule 144.
(i) The
number of shares of “Registrable
Securities then outstanding”
shall
be determined by the number of shares of Common Stock outstanding which are,
and
the number of shares of Common Stock issuable pursuant to then exercisable
or
convertible securities which are, Registrable Securities.
(j) The
term
“Rule
144”
shall
mean Rule 144 as promulgated by the SEC under the Act, as such Rule may be
amended from time to time, or any similar successor rule that may be promulgated
by the SEC.
(k) The
term
“SEC”
shall
mean the Securities and Exchange Commission or any other federal agency at
the
time administering the Act.
(l) The
term
“Stock
Purchase Agreements”
shall
mean (i) that certain stock purchase agreement between Magnetech Industrial
Services Inc. and the purchasers listed on Schedule 1 thereto dated February
26,
2004 and (ii) that certain stock purchase agreement between Magnetech Integrated
Services Corp. and the purchasers listed on Schedule 1 thereto dated May
[ ]
2004.
1.2 Piggyback
Registration.
(a) The
Company and the Holder agree that the Registrable Securities will be included
in
the Company’s Form SB-2 Registration Statement anticipated to be prepared by
counsel to the Company, which filing the Company agrees to use its reasonable
best efforts to make not later than 120 days from the date hereof and to
cause
to be declared effective not later than 165 days from the date hereof. The
Company and the Holder have further agreed that such inclusion will satisfy
the
registration rights given to Holder pursuant to this Agreement; provided,
however, that such inclusion satisfies such obligation only if the registration
statement is declared effective not later than 165 days from the date hereof;
provided
however,
if the
Company has not filed a Form SB-2 Registration Statement that includes the
Registrable Securities within 120 days from the date hereof, for each thirty
(30) days that such Form SB-2 is not filed the Company shall pay the Holders
liquidated damages equal to one percent (1%) of the total issued share capital
of the Company in Common Stock. With respect to the aforementioned liquidated
damage award, each Holder shall receive shares of Common Stock, pro rata,
based
on the number of Registrable Securities owned by such Holder. Notwithstanding
the foregoing, if the Company shall furnish to Holders a certificate signed
by
the Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed owing to a material pending transaction or other issue and it
is
therefore essential to defer the filing of such registration statement, the
Company shall not be required to pay such liquidated damages.
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1.3 Demand
Registration
(a) In
the
event that the SB-2 Registration Statement is not filed by the Company within
125 days from the date hereof pursuant to Section 1.2 hereof, a Holder or
Holders shall be entitled to initiate registration request hereunder
(“Initiating
Holders) The
Initiating Holders shall so advise the Company in writing that the Company
file
a registration statement under the Act registering the Registrable Securities.
The Company shall file a Form SB-2 Registration Statement no later than 45
days
from the date of such registration request and be declared effective not
later
than 90 days from the date thereof. The Company and the Holder shall further
agree that such filing will satisfy the piggyback registration rights given
to
Holder pursuant to this Agreement; provided, however, that such inclusion
satisfies such obligation only if the registration statement is declared
effective not later than 90 days from the date of the request from the
Initiating Holders.
(b) Notwithstanding
the foregoing, if the Company shall furnish to Holders requesting a registration
statement pursuant to this Section 1.3, a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith judgment
of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration statement to be filed
owing
to a material pending transaction and
it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer taking action with respect to such
filing
for a period of not more than 120 days after receipt of the request of the
Initiating Holders.
(c) In
addition, the Company shall not be obligated to effect, or to take any action
to
effect, any registration pursuant to this Section 1.3
in any
particular jurisdiction in which the Company would be required to execute
a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to service
in
such jurisdiction and except as may be required by the Act.
1.4 Obligations
of the Company.
Whenever
required under this Section 1 to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement
to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective until the Registrable Securities registered thereunder have been
sold
by the Holders (or such shorter period as the Holders may consent to in
writing).
(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 number 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 Registrable Securities owned by them.
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(d) Use
its
best 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
Company shall not be required in connection 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 Company 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, 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
light of the circumstances then existing.
(g) Use
its
best efforts to cause all such Registrable Securities registered hereunder
to be
listed on the securities exchange or Nasdaq trading system on which similar
securities of the Company are then listed or trade.
(h) Furnish,
at the request of any Holder requesting registration of Registrable Securities
pursuant to this Section 1, on the date that such Registrable Securities
are
delivered to the underwriters for sale in connection with a registration
pursuant to this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters,
on
the date that the registration statement with respect to such securities
becomes
effective, (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters
in
an underwritten public offering, addressed to the underwriters, if any, and
to
the Holders requesting registration of Registrable Securities.
1.5 Furnish
Information.
It shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 1 with respect to the Registrable Securities of
any
selling Holder that such 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 such Holder’s Registrable Securities.
1.6 Expenses
of Registration.
(a) Demand
Registration. All
expenses other than underwriting discounts and commissions incurred in
connection with registrations, filings or qualifications pursuant to Section
1.3, including (without limitation) all registration, filing and qualification
fees, printers’ and accounting fees, and fees and disbursements of counsel for
the Company shall be borne by the Company; provided, however, that the Company
shall not be required to pay for any
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expenses
of any registration proceeding begun pursuant to Section 1.3 if the registration
request is subsequently withdrawn at the request of the Holders of a majority
of
the Registrable Securities to be registered (in which case all participating
holders shall bear such expenses), unless the Holders of a majority of the
Registrable Securities agree to forfeit their right to one demand registration
pursuant to Section 1.3; 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 Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company 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 1.2 or Section 1.3.
(b) Piggyback
Registration.
All
expenses other than underwriting discounts and commissions incurred in
connection with any registration, filing or qualification of Registrable
Securities with respect to the registrations pursuant to Section 1.2 for
each
Holder (which right may be assigned as provided in Section 1.11, including
(without limitation) all registration, filing, and qualification fees, printers
and accounting fees relating or apportionable thereto and the fees and
disbursements of one counsel for the selling Holders selected by them, but
excluding underwriting discounts and commissions relating to Registrable
Securities shall be borne by the Company.
1.7 Underwriting
Requirements.
In
connection with any offering involving an underwriting of shares of the
Company’s capital stock, the Company 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 Company 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
Company. If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount
of
securities sold other than by the Company that the underwriters determine
in
their sole discretion is compatible with the success of the offering, then
the
Company shall be required to include in the offering only that number of
such
securities, including 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 entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling stockholders) but in no event shall (i) the
amount
of securities of the selling Holders included in the offering be reduced
below
fifty percent of the total amount of securities included in such offering,
or
(ii) notwithstanding (i) above, any shares being sold by a stockholder
exercising a demand registration right similar to that granted in Section
1.2 be
excluded from such offering. For purposes of the preceding parenthetical
concerning apportionment, for any selling stockholder which is a holder 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.
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1.8 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.
1.9 Indemnification.
In the
event any Registrable Securities are included in a registration statement
under
this Section 1:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, 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 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,
or
(iii) any violation or alleged violation by the Company of the Act, the 1934
Act, any state securities law or any rule or regulation promulgated under
the
Act; and the Company will pay to each such Holder, 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 subsection 1.9(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 any such Holder, underwriter or controlling
person.
(b) To
the
extent permitted by law, each selling Holder will 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 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 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 for use in connection with
such
registration; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.9(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 1.9(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 subsection 1.9(b) exceed the
6
net
proceeds from the offering received by such Holder, except in the case of
willful fraud by such Holder.
(c) Promptly
after receipt by an indemnified party under this Section 1.9 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 1.9, 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 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 1.10, 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 1.9.
(d) If
the
indemnification provided for in this Section 1.9 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; provided
that in
no event shall any contribution by a Holder under this subsection 1.9(d)
exceed
the net proceeds from the offering received by such Holder or the amount
such
person would have been obligated to pay if indemnification had been available.
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.
(e) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting 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 for
the
parties to that agreement.
(f) The
obligations of the Company and Holders under this Section 1.9 shall survive
the
completion of any offering of Registrable Securities in a registration statement
under this Section 1, and otherwise.
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1.10 Reports
Under Securities Exchange Act of 1934.
With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any
time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144, at all times so long as the Company remains subject to the
periodic reporting requirements under Section 13 or 15(d) of the 1934
Act;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Act and the 1934 Act; and
(c) furnish
to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) a written statement by the Company that it has complied
with
the reporting requirements of SEC Rule 144, the Act and the 1934 Act, (ii)
a
copy of the most recent annual or quarterly report of the Company and such
other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
1.11 Assignment
of Registration Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Section 1 may be assigned (but only with all related obligations) by a Holder
to
a transferee or assignee of such securities that is an affiliate (as such
term
is
defined in Rule 405 of the Act) of the Holder, provided:
(a) 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; (b) such
transferee or assignee agrees in writing to be bound by and subject to the
terms
and conditions of this Agreement, including without limitation the provisions
of
Section 1.13 below;
and (c) 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. For the purposes of determining the
number
of shares of Registrable Securities held by a transferee or assignee, the
holdings of transferees and assignees of a partnership who are partners or
retired partners of such partnership (including spouses and ancestors, lineal
descendants and siblings of such partners or spouses who acquire Registrable
Securities by gift, will or intestate succession) shall be aggregated together
and with the partnership; provided that all assignees and transferees who
would
not qualify individually for assignment of registration rights shall have
a
single attorney-in-fact for the purpose of exercising any rights, receiving
notices or taking any action under this Section 1.
1.12 Limitations
on Subsequent Registration Rights.
From and
after the date of this Agreement, the Company shall not, without the prior
written consent of the Holders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder
of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under Section
1.2 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
Registrable Securities of the Holders which is included or (b) to make a
demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in subsection
1.2(a) or within one
8
hundred
twenty (120) days of the effective date of any registration effected pursuant
to
Section 1.2.
1.13 Termination
of Registration Rights.
No
Holder shall be entitled to exercise any right provided for in this Section
1
after the earlier of (i) five (5) years from the date hereof with respect
to
Demand Registration Rights, or (ii) such time as Rule 144 or another similar
exemption (without recourse to Rule 144(k) unless such Holder holds less
than or
equal to 2% of the Stock) under the Securities Act is available for the sale
of
all of such Holder’s shares during a three (3)-month period without
registration,
2. Miscellaneous.
2.1 Successors
and Assigns.
Except
as otherwise provided herein, the terms and conditions of this Agreement
shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any shares of Registrable
Securities). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities
under
or by reason of this Agreement, except as expressly provided in this
Agreement.
2.2 Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State
of New
York as applied to agreements among New York residents entered into and to
be
performed entirely within New York.
2.3 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
2.4 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only
and
are not to be considered in construing or interpreting this
Agreement.
2.5 Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement
shall
be given in writing and shall be deemed effectively given upon personal delivery
to the party to be notified or upon deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party
to
be notified at the address indicated for such party on the signature page
hereof, or at such other address as such party may designate by ten (10)
days’
advance written notice to the other parties.
2.6 Expenses.
If any
action at law or in equity is necessary to enforce or interpret the terms
of
this Agreement, the prevailing party shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to
which
such party may be entitled.
2.7 Amendments
and Waivers.
Any term
of this Agreement may be amended and the observance of any term of this
Agreement 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 holders of a majority of the Registrable Securities then outstanding.
Any amendment or waiver effected in accordance with this paragraph shall
be
binding upon each holder of any Registrable Securities then outstanding,
each
future holder of all such Registrable Securities and the Company.
2.8 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement and
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the
balance of the Agreement shall be interpreted as if such provision was so
excluded and shall be enforceable in accordance with its terms.
2.9 Aggregation
of Stock.
All
shares of Registrable Securities held or acquired by affiliated entities
or
persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.
2.10 Entire
Agreement; Amendment; Waiver.
This
Agreement (including the Exhibits hereto, if any) constitutes the full and
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first above
written.
Magnetech
Integrated Services Corp.
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By:
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/s/ Xxxx X. Xxxxxxx | ||
Name:
Xxxx X. Xxxxxxx
|
|||
Purchaser
|
|||
By:
|
[See Schedule 1] | ||
Name:
|
11
Schedule
1
Purchaser(s)
MAGNETECH
INTEGRATED SERVICES CORP.
Private
Placement of Common Stock
Name
|
Closing
Date
|
|
Amount
|
|
Shares
|
|||||
Pershing
as Cust., XXX FBO Xxxxx X'Xxxxxx
|
6/3/2004
|
$
|
75,000.00
|
375,000
|
||||||
Xxxxxx
X. Xxxx
|
6/3/2004
|
$
|
30,000.00
|
150,000
|
||||||
Xxxxx
X. Xxxxx
|
6/3/2004
|
$
|
55,000.00
|
275,000
|
||||||
Xxxxxxxxx
X. Xxxxxxx
|
6/3/2004
|
$
|
100,000.00
|
500,000
|
||||||
Xxx
Xxxxxxx & Xxxxxx Xxxxxxx JTWROS
|
6/3/2004
|
$
|
45,000.00
|
225,000
|
||||||
Xxxx
X. Xxxxxxxxx
|
6/3/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxx
X. Xxxx
|
6/3/2004
|
$
|
30,000.00
|
150,000
|
||||||
Xxxxx
Xxxx Partnership Ltd.
|
6/3/2004
|
$
|
100,000.00
|
500,000
|
||||||
Xxxxx
X. Xxxxxxxx, III
|
6/3/2004
|
$
|
40,000.00
|
200,000
|
||||||
Xxxxxxx
X. Xxxxx
|
7/8/2004
|
$
|
150,000.00
|
750,000
|
||||||
Xxxxx
X. Xxxxxxx & Xxxxx X. Xxxxxxx LV TR 1/18/99
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xx.
Xxxxx Xxxx, III
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xx.
Xxx Xxxxxxxxx & Xxxxx X. Xxxxxxxxx JTWROS
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxxxxx
Xxxxxx & Xxxxxx Xxxxxx JTWROS
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxxxx
Xxxxxxxxxx
|
7/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xx.
Xxxxxxx X. Xxxxxxxxxxx
|
7/8/2004
|
$
|
20,000.00
|
100,000
|
||||||
Xxxxxxx
Xxxxxxx
|
7/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxxxx
Xxxxxxxxxx & Xxxx Xxxxxxxxxx JTWROS
|
7/8/2004
|
$
|
20,000.00
|
100,000
|
||||||
Xxxxxx
Xxxxxxx & Xxxxxxxxx Xxxxxxx JTWROS
|
7/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxxx
Xxx Xxxxxx
|
7/8/2004
|
$
|
15,000.00
|
75,000
|
||||||
Xxxxxxx
Xxxxxxxxxx & Xxxxx Xxxxxxxxxx JTWROS
|
7/8/2004
|
$
|
10,000.00
|
50,000
|
||||||
Xxxxxxx
Xxxxxx
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxx
Xxxxx
|
7/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxx
X. Xxxxx
|
7/8/2004
|
$
|
145,000.00
|
725,000
|
||||||
Xxxxxxxx
X. Xxxxx Mon. Pen. Plan UAD 1/1/98
|
7/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
RS
& VS Ltd.
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Somerset
Farms Profit Sharing Plan UA DTD 5/28/92
|
7/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxx
Xxxxxxx & Xxxxxx Xxxxxxx JTWROS
|
7/8/2004
|
$
|
55,000.00
|
275,000
|
||||||
Xx.
Xxxxxxx Xxxxxxxxxx
|
10/20/2004
|
$
|
75,000.00
|
375,000
|
||||||
Xxxxx
Xxxxxx & Xxxxxxx Xxxxxx JTWROS
|
10/20/2004
|
$
|
10,000.00
|
50,000
|
||||||
Xxxxxxx
X. Xxxxx, Xx.
|
10/20/2004
|
$
|
15,000.00
|
75,000
|
||||||
SwissFinanz
Partner AG
|
10/20/2004
|
$
|
125,000.00
|
625,000
|
||||||
Pershing
LLC as Cust., SEP FBO Xxxxx Xxxxxxx, III
|
10/20/2004
|
$
|
23,700.00
|
118,500
|
||||||
Xxx
Xxxxxxx & Xxxxxx Xxxxxxx JTWROS
|
10/20/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxxxx
X. Xxxxxx
|
10/20/2004
|
$
|
50,000.00
|
250,000
|
||||||
Pershing
LLC as Cust., XXX FBO Xxxxxx X'Xxxxxx
|
10/20/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxx
X. Xxxxx
|
10/20/2004
|
$
|
60,000.00
|
300,000
|
||||||
Xxxxxx
X. Xxxxxx
|
10/20/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxxxxxx
Xxxxxxx & Xxxxxxx Xxxx Xxxxxxx JTWROS
|
10/20/2004
|
$
|
50,000.00
|
250,000
|
||||||
Xxxxxxx
X. Xxxxxxxxxx
|
11/8/2004
|
$
|
10,000.00
|
50,000
|
||||||
Xxxx
Xxxxxx
|
11/8/2004
|
$
|
50,000.00
|
250,000
|
||||||
Pershing
LLC - Cust., XXX FBO Xxxxx Xxxxxxx, III, Xxxx Account
|
11/8/2004
|
$
|
1,300.00
|
6,500
|
||||||
Xxxxx
X. Xxxxxx
|
11/8/2004
|
$
|
100,000.00
|
500,000
|
||||||
Xxxxx
X. Xxxxxxx & Xxxxx X. Xxxxxxx LV TR 1/18/99
|
11/8/2004
|
$
|
30,000.00
|
150,000
|
||||||
Xxxxxxxxx
Xxxxx
|
11/8/2004
|
$
|
30,000.00
|
150,000
|
||||||
Xxx
Xxxxxxx & Xxxxxx Xxxxxxx JTWROS
|
11/8/2004
|
$
|
30,000.00
|
150,000
|
||||||
Xxxxxxxxx
X. Xxxxxxx
|
11/8/2004
|
$
|
25,000.00
|
125,000
|
||||||
SwissFinanz
Partner AG
|
12/13/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxx
Xxxxxx
|
12/13/2004
|
$
|
25,000.00
|
125,000
|
||||||
Xxxxx
X. Xxxxxx
|
12/31/2004
|
$
|
300,000.00
|
1,500,000
|
||||||
TOTALS
|
$
|
2,550,000.00
|
12,750,000
|