EXHIBIT 10.18
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is dated February 20, 2001 by and between NOCOPI
TECHNOLOGIES, INC., a Maryland corporation (the "Company") and WESTVACO BRAND
SECURITY, INC., a Delaware corporation ("Holder").
WITNESSETH:
Holder is the record and beneficial owner of 3,917,030 shares (the
"Shares") of the Company's common stock, par value $.01 per share (the "Common
Stock") representing approximately ten percent (10%) of the Company's currently
outstanding Common Stock. Holder desires to obtain certain rights with respect
to the registration of Shares under the Securities Act of 1933, as amended (the
"Act") in order to facilitate the public sale and distribution of all or a part
of such Shares, and the Company is willing to furnish such rights under and
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. Registration Rights.
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(a) Registration of Common Stock by the Company. At any time
prior to February 20, 2003, whenever the Company shall propose to file a
registration statement (other than on Form X-0, Xxxx X-0 or any successor forms
thereto) under the Securities Act of 1933, as amended (the "Act"), or a similar
document under any other statute then in effect corresponding to the Act
relating to the public offering of shares of Common Stock of the Company within
the United States (a "Registration Statement"), the Company shall (i) give
written notice at least thirty (30) days prior to the filing thereof to the
Holder specifying the date on which the Company proposes to file such
Registration Statement and advising the Holder of its right to have any Shares
included therein, (ii) at the written request of the Holder given to the Company
within fifteen (15) days after receipt of any such notice (which request shall
specify the Shares intended to be sold or disposed of), include among the
securities covered by such Registration Statement, the number of such Shares so
requested to be included, and (iii) use its reasonable efforts to cause such
Registration Statement to become effective and to remain effective for the
period required to permit the public offering and sale by the Holder of the
Shares covered thereby (but not for more than 90 days following the effective
date thereof). However, if all or any part of the proposed registration is to be
underwritten (whether on a "best efforts" or a "firm commitment" basis), the
managing underwriter shall have the right to exclude Shares to the extent the
inclusion of such Shares would, in the written opinion of such managing
underwriter, adversely affect the successful distribution of the underwritten
portion of the public offering, provided such exclusion applies on a
proportional basis not only to the Shares but also to all other securities
proposed to be included other than those for which the Company initiated the
registration. Any exclusion of Shares shall be made pro rata among the Holder
and other affected shareholders.
(b) Ancillary Company Action to be Taken in Connection with
Any Registration. Whenever the Company shall include any Shares among the
securities covered by a Registration Statement pursuant to Section 1(a), the
Company shall (i) comply with all applicable rules and regulations of the
Securities and Exchange Commission in connection therewith, (ii) thereafter, for
such period of time as shall be required in connection with the transactions
contemplated thereby and permitted by applicable rules, regulations and
administrative practice (but not for more than 90 days following the effective
date of such Registration Statement), file such post-effective amendments and
supplements thereto as shall be necessary so that neither such Registration
Statement nor any related prospectus, prospectus supplement or amendment shall
contain any material misstatement or omission relative to the Company or any of
its assets or its business or affairs and so that such Registration Statement
and prospectus, prospectus supplement or amendment will otherwise comply with
all applicable legal requirements, (iii) furnish to the Holder such number of
copies of such Registration Statement and any related preliminary prospectus,
prospectus, post-effective amendment, supplement or similar document forming a
part thereof as Holder may reasonably request) and (iv) take all action which
may be necessary under the securities or Blue Sky laws of any state (except that
the Company shall not be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction), and as may be reasonably requested
by the Holder, to permit the public offering and sale of the Shares held by the
Holder and covered by such Registration Statement.
(c) Conditions Precedent to Registration. Anything in this
Section 1 to the contrary notwithstanding, the Company shall not be obliged to
include among the securities covered by a Registration Statement any Shares
requested to be so included pursuant to Section 1(a) unless the Holder shall
theretofore have furnished the Company, in writing, all information with respect
to the Holder, the Shares requested to be so included, the transaction or
transactions which the Holder contemplates and each underwriter who will act in
connection therewith, which any law, rule or regulation requires to be disclosed
therein. In addition, the obligations of the Company hereunder are subject to
and conditioned upon the Holder's providing such other information and taking
such action as may reasonably be requested by the Company in connection with
such registration.
(d) Expenses. If Holder requests that Shares be included in a
Registration Statement pursuant to Section 1(a), the out-of-pocket expense
incurred by the Company in connection with such Registration Statement or the
public offering of securities thereunder which it would not have incurred but
for such request, together with all underwriting discounts and commissions
applicable to Holder's Shares, shall be borne by the Holder.
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(e) Indemnification. The Holder shall indemnify, and agree to
contribution in favor of, the Company, its directors, officers and affiliates,
for any losses caused by any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in such Registration Statement or prospectus or any preliminary
prospectus or any amendment or supplement thereto or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or alleged untrue statement is contained in information specifically
furnished in writing by the Holder expressly for use therein.
Any person entitled to indemnification under the provisions of
the Section 1(e) shall (i) give prompt notice to the indemnifying party of any
claim with respect to which it seeks indemnification, and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, permit
such indemnifying party to assume the defense of such claim, with counsel
reasonably satisfactory to the indemnified party; and if such defense is so
assumed, such indemnifying party shall not be subject to any liability for any
settlement made without its consent (which shall not be unreasonably withheld).
(f) Listing of Shares. At any time as any shares of Common
Stock are listed on a national securities exchange or designated as a national
market system security by the National Association of Securities Dealers, Inc.
("NASD"), or otherwise listed on the NASD automated quotation system, and a
Registration Statement filed pursuant to Section 1(a) has been declared
effective, the Company will promptly obtain and maintain the approval for
listing of each such exchange or system, as the case may be, of the Shares
included in such Registration Statement.
(g) Excluded Shares. Any Shares shall be cease to be entitled
to the benefits of the provisions of this Section 1 when (i) a Registration
Statement covering such Shares has been declared effective and they have been
disposed of pursuant to such effective Registration Statement, (ii) they are
distributed to the public pursuant to Rule 144 or Rule 144A under the Act, or
(iii) they have been otherwise transferred by the Holder.
(h) Holdback. The Holder agrees, to the extent required by
applicable law, not to effect any public sale or distribution of Shares, or any
securities convertible into or exchangeable or exercisable for such Shares,
during the five business days prior to, and during the 90 day period following,
the effective date of such Registration Statements (except as part of such
registration), if and to the extent timely notified in writing by the Company,
in the case of a non-underwritten public offering, or by the managing
underwriter, in the case of an underwritten public offering. The Company agrees
not to effect any public sale or distribution of Common
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Stock, any securities similar to the Shares, or convertible into or exchangeable
or exercisable for such securities during the five business days prior to, and
during the 90 day period following, the effective date of any Registration
Statement in which the Holder is participating pursuant to this Section 1
(except as part of such registration and except pursuant to a registration on
Form S-4 or Form S-8, or any successor to such forms).
2. Assignment; Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
3. Entire Agreement; Modification. This Agreement constitutes the
entire agreement of the parties with respect to its subject matter and
supersedes all prior or contemporaneous understandings, negotiations and
agreements of the parties concerning such subject matter. This Agreement may be
modified only in a writing signed by the parties hereto specifically stating an
intent to modify this Agreement.
4. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with the substantive laws of the Commonwealth of
Pennsylvania applicable to contracts made and to be performed within that State,
without giving effect to conflicts of laws principles.
5. Notice. Any notice, request or other communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be (a) mailed by U.S. Express Mail or U.S. Certified Mail, in either case Return
Receipt Requested, (b) delivered by recognized overnight courier such as Federal
Express, or (c) hand delivered to the party to whom addressed at the following
addresses:
if to the Company, Nocopi Technologies, Inc.
000 Xxxxx Xx.
Xxxx Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Chairman
with copy to: Xxxxxxx Aronchick Xxxxx & Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX. 00000
Attn: Xxxxxx X. Xxxxxx, Esquire
if to the Holder, Westvaco Brand Security, Inc.
Xxx Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, President
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or at such other address as may be designated by a party in writing. All written
communications shall be deemed effective upon the earlier of the actual receipt
thereof by the addressee or the expiration of two business days from the date
such communication is placed in the hands of the post office, a recognized
overnight courier, or a messenger service.
IN WITNESS WHEREOF, this Agreement has been executed by the parties the
day and year first above written.
NOCOPI TECHNOLOGIES, INC.
By:______________________________________
Xxxxxxx X. Xxxxxxxxx, Chairman
WESTVACO BRAND SECURITY, INC.
By:______________________________________
Xxxxxxx Xxxx, President
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