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Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), is made as of
September 5, 1997, by and among Molten Metal Technology, Inc., a Delaware
corporation (the "COMPANY"), with headquarters located at 000-0 Xxxxxx Xxxx
Xxxx, Xxxxxxx, XX 00000, and the undersigned (the "INITIAL PURCHASERS" ).
RECITALS
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A. In connection with the Securities Purchase Agreement dated of even
date herewith by and between the Company and the Initial Purchasers (the
"SECURITIES PURCHASE AGREEMENT"), the Company has agreed, upon the terms and
subject to the conditions contained therein, to issue and sell to the Initial
Purchasers shares of Series A Convertible Participating Preferred Stock of the
Company (the "PREFERRED STOCK") that is convertible into shares (the "CONVERSION
SHARES") of the Company's common stock, par value $.01 per share (the "COMMON
STOCK"), upon the terms and subject to the limitations and conditions set forth
in the Certificate of Designations, Preferences and Rights with respect to such
Preferred Stock (the "CERTIFICATE OF DESIGNATIONS"), in the form attached as
Exhibit A to the Securities Purchase Agreement. In connection with the
transactions contemplated by the Securities Purchase Agreement, the Company has
also agreed to issue to GEM Ventures Ltd. (the "Agent") pursuant to that certain
Warrant Agreement dated September 5, 1997 (the "Warrant Issuance Agreement")
warrants (the "Warrants"), in the form attached as Exhibit A-1 to the Securities
Purchase Agreement, to acquire 566,000 shares of Common Stock (the "Warrant
Shares").
B. To induce the Initial Purchasers to execute and deliver the
Securities Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules
and regulations thereunder, or any similar successor statute (collectively, the
"SECURITIES ACT"), and applicable state securities laws.
AGREEMENTS
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NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company, the Initial
Purchasers and the Agent hereby agree as follows:
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ARTICLE I
DEFINITIONS
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1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "PURCHASERS" means the Initial Purchasers and any
transferees or assignees who agree to become bound by the provisions of this
Agreement in accordance with Article IX hereof.
(b) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act or any successor rule providing for offering securities on a
continuous basis ("RULE 415"), and the declaration or ordering of effectiveness
of such Registration Statement by the United States Securities and Exchange
Commission (the "SEC").
(c) "REGISTRABLE SECURITIES" means the Conversion Shares
(including any Conversion Shares issuable with respect to conversion default
payments under the Certificate of Designation as well as any other shares of
Common Stock which may be issued as provided for under Section 2.3 hereof)
issued or issuable with respect to the Preferred Stock, the Warrant Shares
issued or issuable with respect to the Warrants, and any shares of capital stock
issued or issuable, from time to time (with any adjustments), on or in exchange
for or otherwise with respect to any such Common Stock or any other Registrable
Securities. "Registrable Securities" will cease to constitute Registrable
Securities for purposes of this Agreement when sold pursuant to a Registration
Statement or Rule 144, provided that after such sale the applicable securities
are freely tradeable under the Securities Act.
(d) "REGISTRATION STATEMENT" means a registration statement of
the Company under the Securities Act.
1.2 CAPITALIZED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Securities
Purchase Agreement.
ARTICLE II
REGISTRATION
2.1 MANDATORY REGISTRATION. The Company shall prepare, and, on or
prior to twenty (20) business days after the date of the Closing (the "FILING
DATE"), file with the SEC a Registration Statement on Form S-1 covering the
resale of all of the Registrable Securities, which Registration Statement, to
the extent allowable under the Securities Act and the Rules promulgated
thereunder (including Rule 416), shall state that such Registration Statement
also covers such indeterminate number of additional shares of Common Stock as
may become issuable upon conversion of the Preferred Stock (i) to prevent
dilution resulting from stock splits,
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stock dividends or similar transactions or (ii) by reason of changes in the
Conversion Price of the Preferred Stock in accordance with the terms thereof.
The Registrable Securities included in the Registration Statement shall be
allocated among the Purchasers as set forth in Section 11.11 hereof. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided to (and
subject to the approval of (which approval shall not be unreasonably withheld or
denied)) the Initial Purchasers and their counsel prior to its filing or other
submission.
2.2 UNDERWRITTEN OFFERING. If any offering pursuant to a Registration
Statement pursuant to Section 2.1 hereof involves an underwritten offering, the
Purchasers who hold a majority in interest of the Registrable Securities subject
to such underwritten offering, with the consent of the Initial Purchasers, shall
have the right to select a total of one legal counsel to represent the
Purchasers and an investment banker or bankers and manager or managers to
administer the offering, which investment banker or bankers or manager or
managers shall be reasonably satisfactory to the Company.
2.3 PAYMENTS BY THE COMPANY. The Company shall cause the registration
statement to become effective as soon as practicable, but in no event later than
the one hundred and twentieth (120th) day (but the ninetieth (90th) day in the
event that the Registration Statement is not filed by the Filing Date) following
the date of the Closing (the "REGISTRATION DEADLINE"). If (i) the registration
statement(s) covering the Registrable Securities required to be filed by the
Company pursuant to Section 2.1 hereof is not declared effective by the SEC on
or before the Registration Deadline, or (ii) after the later of the date the
registration statement has been declared effective by the SEC and the
Registration Deadline, sales of all the Registrable Securities (including any
Registrable Securities required to be registered pursuant to Section 3.2 hereof)
cannot be made pursuant to the registration statement (by reason of a stop order
or the Company's failure to update the registration statement or any other
reason outside the control of the Purchasers), then the Company will make
payments to the Purchasers in such amounts and at such times as shall be
determined pursuant to this Section 2.3 as partial relief for the damages to the
Purchasers by reason of any such delay in or reduction of their ability to sell
the Registrable Securities (which remedy shall not be exclusive of any other
remedies available at law or in equity). In such event, the Company shall pay to
each Purchaser an amount equal to (i) (A) .02 times (B) the aggregate Face
Amount (as defined in the Certificate of Designations) of the Preferred Stock
held by such Purchaser (including, without limitation, shares of Preferred Stock
that have been converted into Conversion Shares) (in each case taking into
account any dispositions of such shares of Preferred Stock or Conversion Shares
as the case may be) times (ii) the sum of: (A) the number of months (prorated
per day for partial months) following the Registration Deadline prior to the
date the Registration Statement filed pursuant to Section 2.1 is declared
effective by the SEC plus (B) the number of months (prorated per day for partial
months) following the Registration Deadline but prior to the termination of the
Registration Period that, following a three (3) day grace period in each event
(but a sixty (60) consecutive days grace period prior to June 30, 1998), sales
cannot be made pursuant to the Registration Statement after the Registration
Statement has been declared effective (any period prior to June
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30, 1998 during which such registration statement cannot be utilized as
contemplated by this clause (B) for more than three (3) consecutive days being a
"Blackout"). Such amounts shall be paid in cash or, at each Purchaser's option,
may be convertible into Common Stock at the "CONVERSION PRICE" (as defined in
the Certificate of Designation). Any shares of Common Stock issued upon
conversion of such amounts shall be Registrable Securities. If the Purchaser
desires to convert or exercise the amounts due hereunder into Registrable
Securities it shall so notify the Company in writing within two (2) days prior
to the date on which such amounts are first payable in cash and such amounts
shall be so convertible (pursuant to the terms of the Certificate of
Designation), beginning on the last day upon which the cash amount would
otherwise be due in accordance with the following sentence. Payments of cash
pursuant hereto shall be made within five (5) days after the end of each period
that gives rise to such obligation, provided that, if any such period extends
for more than thirty (30) days, payments shall be made for each such thirty (30)
day period within five (5) days after the end of such thirty (30) day period.
2.4 PIGGY-BACK REGISTRATIONS. If at any time prior to the expiration
of the Registration Period (as hereinafter defined) the Company shall file with
the SEC a Registration Statement relating to an offering for its own account or
the account of others under the Securities Act of any of its equity securities
(other than on Form S-4 or Form S-8 or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or
other employee benefit plans), then the Company shall send to each Purchaser who
has a right to have Registrable Securities covered by a Registration Statement
(and which are not so covered by a Registration Statement) written notice of
such determination and, if within fifteen (15) days after the date of such
notice, such Purchaser shall so request in writing, the Company shall include in
such Registration Statement all or any part of the Registrable Securities such
Purchaser requests to be registered, except that if, in connection with any
underwritten public offering for the account of the Company the managing
underwriter(s) thereof shall impose a limitation on the number of shares of
Common Stock which may be included in the Registration Statement because, in
such underwriter(s)' judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distribution, then the Company
shall be obligated to include in such Registration Statement only such limited
portion of the Registrable Securities with respect to which such Purchaser has
requested inclusion hereunder as the underwriter shall permit. Any exclusion of
Registrable Securities shall be made pro rata among the Purchasers seeking to
include Registrable Securities, in proportion to the number of Registrable
Securities sought to be included by such Purchasers; provided, however, that the
Company shall not exclude any Registrable Securities unless the Company has
first excluded all outstanding securities, the holders of which are not entitled
to inclusion of such securities in such Registration Statement or are not
entitled to pro rata inclusion with the Registrable Securities; and provided,
further, however, that, after giving effect to the immediately preceding
proviso, any exclusion of Registrable Securities shall be made pro rata with
holders of other securities having the right to include such securities in the
Registration Statement. No right to registration of Registrable Securities under
this Section 2.4 shall be construed to limit any registration required under
Section 2.1 or 3.2 hereof. If an offering in connection with which a Purchaser
is entitled to
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registration under this Section 2.4 is an underwritten offering, then each
Purchaser whose Registrable Securities are included in such Registration
Statement shall, unless otherwise agreed by the Company, offer and sell such
Registrable Securities in an underwritten offering using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same terms
and conditions as other shares of Common Stock included in such underwritten
offering.
2.5 ELIGIBILITY FOR FORM S-3. The Company covenants that by June 1,
1998 it will meet the eligibility requirements for the use of Form S-3 for
registration of the re-sale by the Initial Purchasers and any other Purchaser
and the Agent, as the case may be, of the Registrable Securities and the Company
shall file all reports required to be filed by the Company with the SEC in a
timely manner so as to obtain by such time, and thereafter maintain, such
eligibility for the use of Form S-3. The Company shall as soon as possible
(using its best efforts) following June 1, 1998, but in any event by July 31,
1998, have converted the Registration Statement from a Form S-1 to a Form S-3 by
amendment or filing of a new registration statement as may be required by
applicable law and the rules and regulations thereunder.
ARTICLE III
OBLIGATIONS OF THE COMPANY
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In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
3.1 The Company shall prepare promptly and file with the SEC the
Registration Statement required by Section 2.1, and cause such Registration
Statement relating to Registrable Securities to become effective as soon as
practicable after such filing, and use its best efforts to keep the Registration
Statement effective pursuant to Rule 415 at all times until such date as is the
EARLIER OF (i) the date on which all of the Registrable Securities have been
sold (and no further Registrable Securities may be issued in the future), (ii)
the date on which all of the Registrable Securities (in the reasonable opinion
of counsel to the Initial Purchasers) may be immediately sold to the public
without registration and without restriction as to the number of Registrable
Securities to be sold, whether pursuant to Rule 144 or otherwise and (iii) four
years from the date hereof (the "REGISTRATION PERIOD"). The Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein and all documents incorporated by reference therein) shall not
contain 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.
3.2 The Company shall use its best efforts to prepare and file with
the SEC such amendments (including post-effective amendments) and supplements to
a Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep the Registration Statement
effective at all times during the Registration Period, and, during such period,
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities of the Company covered by the Registration
Statement until the
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termination of the Registration Period (it being understood in the operation of
this paragraph that, prior to June 1, 1998, the Company will not be eligible for
use of an S-3 Registration Statement and thus the Registration Statement prior
to such time may not be updated by filing of a Form 8-K). In the event the
number of shares available under a Registration Statement filed pursuant to this
Agreement is, for any three (3) consecutive trading days (the last of such three
(3) trading days being the "REGISTRATION TRIGGER DATE"), insufficient to cover
one hundred seventy-five percent (175%) of the Registrable Securities the
Company shall use its best efforts to file an amendment to, if permissible, the
Registration Statement, or file a new Registration Statement (on the shortest
form available therefor, if applicable), or both, so as to cover two hundred
percent (200%) of the Registrable Securities in each case, as soon as
practicable after the Registration Trigger Date (based on the market price of
the Common Stock and other relevant factors on which the Company reasonably
elects to rely). The Company shall use its best efforts to cause such amendment
and/or new Registration Statement to become effective as soon as practicable
following the filing thereof.
3.3 The Company shall furnish to each Purchaser whose Registrable
Securities are included in the Registration Statement and its legal counsel (a)
promptly after the same is prepared and publicly distributed, filed with the
SEC, or received by the Company, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each amendment
or supplement thereto, and, in the case of the Registration Statement referred
to in Section 2.1, each letter written by or on behalf of the Company to the SEC
or the staff of the SEC, and each item of correspondence from the SEC or the
staff of the SEC, in each case relating to such Registration Statement (other
than any portion, if any, thereof which contains information for which the
Company has sought confidential treatment), and (b) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Purchaser may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned (or to be owned) by such Purchaser. All correspondence to or from the SEC
or its staff shall, subject to applicable law and legal process, be kept
confidential by the Purchasers.
3.4 The Company shall use reasonable efforts to (a) register and
qualify the Registrable Securities covered by the Registration Statement under
securities laws of such jurisdictions in the United States as each Purchaser who
holds (or has the right to hold) Registrable Securities being offered reasonably
requests, (b) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (c) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during the
Registration Period, and (d) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3.4, (ii) subject itself to general taxation in any such jurisdiction,
(iii) file a general consent to service of process in any such jurisdiction,
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(iv) provide any undertakings that cause the Company material expense or burden,
or (v) make any change in its charter or by-laws, which in each case the board
of directors of the Company determines to be contrary to the best interests of
the Company and its stockholders.
3.5 In the event the Purchasers who hold a majority in interest of the
Registrable Securities being offered in an offering pursuant to a Registration
Statement or any amendment or supplement thereto under Section 2.1 or 3.2 hereof
select underwriters for the offering, the Company shall enter into and perform
its obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the underwriters of such offering.
3.6 As soon as practicable after becoming aware of such event, the
Company shall notify each Purchaser of the happening of any event, of which the
Company has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and use its best
efforts to as soon as practicable to prepare a supplement or amendment to and,
in the event of an amendment, obtain the effectiveness thereof, the Registration
Statement to correct such untrue statement or omission, and deliver such number
of copies of such supplement or amendment to each Purchaser as such Purchaser
may reasonably request.
3.7 The Company shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration Statement,
and, if such an order is issued, to obtain the withdrawal of such order at the
earliest practicable time and to notify (by telephone and also by facsimile and
reputable overnight carrier) each Purchaser who holds Registrable Securities
being sold (or, in the event of an underwritten offering, the managing
underwriters) of the issuance of such order and the resolution thereof.
3.8 The Company shall permit a single firm of counsel designated by
the Initial Purchasers to review the Registration Statement and all amendments
and supplements thereto a reasonable period of time prior to their filing with
the SEC, and not file any document in a form to which such counsel reasonably
and timely objects.
3.9 The Company shall make generally available to its security holders
as soon as practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date of the Registration Statement.
3.10 At the request of any Purchaser, the Company shall use its
reasonable efforts to furnish to such Purchaser, on the date of effectiveness of
the Registration Statement and thereafter from time to time on such dates as a
Purchaser may reasonably request (a) an opinion, dated as of such applicable
date, from counsel representing the Company addressed to the
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Purchasers and in form, scope and substances as is customarily given in an
underwritten public offering and (b) a letter, dated as of such applicable date,
from the Company's independent certified public accountants addressed to the
Purchasers and in form, scope and substance as customarily given to underwriters
in an underwritten public offering; provided, however, that a Purchaser shall
only be entitled to the foregoing to the extent it is reasonably requested by
such Purchaser and consented to by the Company after consultation with its
counsel (which consent will not be unreasonably withheld based upon all relevant
facts and circumstances and advice of such counsel) and in any event no more
than one time in any six-month period (unless a shorter period would otherwise
be reasonable under the applicable circumstances).
3.11 The Company shall make available for inspection by (i) any
Purchaser, (ii) any underwriter participating in any disposition pursuant to the
Registration Statement, (iii) one firm of attorneys and one firm of accountants
retained by the Purchasers, and (iv) one firm of attorneys retained by all such
underwriters (collectively, the "INSPECTORS") all pertinent financial and other
records, and pertinent corporate documents and properties of the Company
(collectively, the "RECORDS"), as shall be reasonably deemed necessary by each
Inspector to enable each Inspector to conduct such investigation as it deems
appropriate, if any, and cause the Company's officers, directors and employees
to supply all information which any Inspector may reasonably request for
purposes of such due diligence; provided, however, that each Inspector shall
hold in confidence and shall not make any disclosure (except to a Purchaser) of
any Record or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified in
writing, unless (a) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in any Registration Statement, (in which
event the Company shall promptly make appropriate public disclosure thereof, (b)
the release of such Records is ordered pursuant to a subpoena or other order
from a court or government body of competent jurisdiction, or is otherwise
required by applicable law or legal process or (c) the information in such
Records has been made generally available to the public other than by disclosure
in violation of this or any other agreement (to the knowledge of the relevant
Purchaser). The Company shall not be required to disclose any confidential
information in such Records to any Inspector until and unless such Inspector
shall have entered into confidentiality agreements (in form and reasonable
substance satisfactory to the Company) with the Company with respect thereto,
substantially in the form of this Section 3.11. Each Purchaser agrees that it
shall, upon learning that disclosure of such Records is sought in or by a court
or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, the Records deemed confidential. Nothing in this Section 3.11 shall be
deemed to limit a Purchaser's ability to sell Registrable Securities in a manner
which is consistent with applicable laws and regulations.
3.12 The Company shall hold in confidence and not make any disclosure
of information concerning a Purchaser provided to the Company unless (a)
disclosure of such information is necessary to comply with federal or state
securities laws, (b) the disclosure of such information is necessary to avoid or
correct a misstatement or omission in any Registration
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Statement, (c) the release of such information is ordered pursuant to a subpoena
or other order from a court or governmental body of competent jurisdiction or is
otherwise required by applicable law or legal process, (d) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement (to the knowledge of the Company), or
(e) such Purchaser consents to the form and content of any such disclosure. The
Company agrees that it shall, upon learning that disclosure of such information
concerning a Purchaser is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to such
Purchaser prior to making such disclosure, and allow the Purchaser, at its
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
3.13 The Company shall cause the listing and the continuation of
listing of all the Registrable Securities covered by the Registration Statement
on the Nasdaq National Market System or, if the Common Stock is no longer listed
thereon, on the Nasdaq Small Cap Market, the NYSE or the Amex, and cause the
Registrable Securities to be quoted or listed on each additional national
securities exchange or quotation system upon which the Common Stock is then
listed or quoted.
3.14 The Company shall provide a transfer agent and registrar, which
may be a single entity, for the Registrable Securities not later than the
effective date of the Registration Statement.
3.15 The Company shall cooperate with the Purchasers who hold
Registrable Securities being offered and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter or underwriters, if any, or the Purchasers may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or the Purchasers may request, within one (1) business
days after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, the Company shall cause legal counsel selected by
the Company to deliver, to the transfer agent for the Registrable Securities
(with copies to the Purchasers whose Registrable Securities are included in such
Registration Statement) an opinion of such counsel in the form attached hereto
as EXHIBIT 1.
3.16 At the request of any Purchaser, the Company shall promptly
prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary in order to
change the description of the plan of distribution set forth in such
Registration Statement.
3.17 The Company shall comply with all applicable laws related to the
Registration Statement and offering and sale of securities and all applicable
rules and regulations of
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governmental authorities in connection therewith (including, without limitation,
the Securities Act and the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission).
3.18 The Company shall take all such other actions as any Purchaser or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities.
3.19 The Company shall not, and shall not agree to, allow the holders
of any securities of the Company to include any of their securities in any
Registration Statement or any amendment or supplement thereto under Section 2.1
or 3.2 hereof without the consent of the holders of a majority of the
Registrable Securities.
ARTICLE IV
OBLIGATIONS OF THE PURCHASERS
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In connection with the registration of the Registrable Securities, the
Purchasers shall have the following obligations:
4.1 It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Agreement with respect to
the Registrable Securities of a particular Purchaser that such Purchaser shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least five (5)
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Purchaser of the information the
Company requires from each such Purchaser.
4.2 Each Purchaser, by such Purchaser's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statements hereunder, unless such Purchaser has notified the Company in writing
of such Purchaser's election to exclude all of such Purchaser's Registrable
Securities from the Registration Statement.
4.3 Each Purchaser whose Registrable Securities are included in a
Registration Statement understands that the Securities Act may require delivery
of a prospectus relating thereto in connection with any sale thereof pursuant to
such Registration Statement, and each such Purchaser shall comply with the
applicable prospectus delivery requirements of the Securities Act in connection
with any such sale.
4.4 Each Purchaser agrees to notify the Company promptly, but in any
event within 72 hours, after the date on which all Registrable Securities owned
by such Purchaser have been sold
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by such Purchaser, if such date is prior to the expiration of the Registration
Period, so that the Company may comply with its obligation to terminate the
Registration Statement in accordance with Item 512(a)(3) of Regulation S-K.
4.5 Each Purchaser agrees that, upon receipt of written notice from
the Company of the happening of any event of the kind described in Section 3.6,
such Purchaser will immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Purchaser's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3.6 and, if so directed by the
Company, such Purchaser shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in such Purchaser's possession (other than a limited number of
permanent file copies), of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
4.6 Without limiting a Purchaser's rights under Section 2.1 or 3.2
hereof, no Purchaser may participate in any underwritten distribution hereunder
unless such Purchaser (a) agrees to sell such Purchaser's Registrable Securities
on the basis provided in any underwriting arrangements in usual and customary
form entered into by the Company, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements, and (c)
agrees to pay its pro rata share of all underwriting discounts and commissions
and any expenses in excess of those payable by the Company pursuant to
Article V.
ARTICLE V
EXPENSES OF REGISTRATION
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All expenses, other than underwriting discounts and commissions, incurred
by the Company in connection with registrations, filings or qualifications
pursuant to Articles II and III, including, without limitation, all
registration, listing and qualification fees, printers and accounting fees, and
the fees and disbursements of counsel for the Company, shall be borne by the
Company.
ARTICLE VI
INDEMNIFICATION
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In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
6.1 To the extent permitted by law, the Company will indemnify, hold
harmless and defend (a) each Purchaser who holds such Registrable Securities,
(b) each underwriter of Registrable Securities and (c) the directors, officers,
partners, members, employees, agents and persons who control any Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), if any,
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(each, an "INDEMNIFIED PERSON"), against any joint or several losses, claims,
damages, liabilities or expenses (collectively, together with actions,
proceedings or inquiries by any regulatory or self-regulatory organization,
whether commenced or threatened, in respect thereof, "CLAIMS") to which any of
them may become subject insofar as such Claims arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a material fact in a
Registration Statement or the omission or alleged omission to state therein a
material fact required to be stated or necessary to make the statements therein
not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities (the matters in the
foregoing clauses (i) through (iii) being, collectively, "VIOLATIONS"). Subject
to the restrictions set forth in Section 6.3 with respect to the number of legal
counsel, the Company shall reimburse the Purchasers, each such underwriter and
controlling person, and each such other Indemnified Person, promptly as such
expenses are incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6.1: (x) shall
not apply to an Indemnified Person with respect to a Claim arising out of or
based upon a Violation which occurs in reliance upon and in conformity with
information furnished in writing to the Company by such Indemnified Person
expressly for use in the Registration Statement or any such amendment thereof or
supplement thereto; (y) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld; and (z) with respect
to any preliminary prospectus, shall not inure to the benefit of any Indemnified
Person if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, if such corrected prospectus was timely made
available by the Company pursuant to Section 3.3 hereof, and the Indemnified
Person was promptly advised in writing not to use the incorrect prospectus prior
to the use giving rise to a Violation and such Indemnified Person,
notwithstanding such advice, used it. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the Registrable Securities
by the Purchasers pursuant to Article IX.
6.2 To the extent permitted by law, in connection with any
Registration Statement in which a Purchaser is participating, each such
Purchaser agrees to indemnify, hold harmless and defend, to the same extent and
in the same manner set forth in Section 6.1, the Company, each of its directors,
each of its officers who signs the Registration Statement, its employees, agents
and persons, if any, who control the Company within the meaning of Section 15 of
the Securities Act
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or Section 20 of the Exchange Act, and any other stockholder selling securities
pursuant to the Registration Statement, together with its directors, officers
and members, and any person who controls such stockholder or underwriter within
the meaning of the Securities Act or the Exchange Act (such an "INDEMNIFIED
PARTY"), against any Claim to which any of them may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such Claim (x) in the
event of a Violation of the type referred to in clause (i) or (ii) of Section
6.1, arises out of or is based upon such Violation, but only to the extent (and
only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
expressly for use in connection with such Registration Statement; or (y) arises
out of or is based upon any violation by such Purchaser of the Securities Act,
Exchange Act, any other law, including without limitation any state securities
laws, or any rule or regulation thereunder, in each case relating to the offer
or sale of the Registrable Securities under the Registration Statement; and
subject to Section 6.3 such Purchaser will reimburse any legal or other expenses
(promptly as such expenses are incurred and are due and payable) reasonably
incurred by them in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6.2
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Purchaser, which consent
shall not be unreasonably withheld; provided, further, however, that a Purchaser
shall be liable under this Agreement (including this Section 6.2 and Article
VII) for only that amount as does not exceed the net proceeds actually received
by such Purchaser as a result of the sale of Registrable Securities pursuant to
such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnified
Party and shall survive the transfer of the Registrable Securities by the
Purchasers pursuant to Article IX. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6.2
with respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus was corrected on a timely basis in the prospectus,
as then amended or supplemented, and the Indemnified Party failed to utilize
such corrected prospectus.
6.3 Promptly after receipt by an Indemnified Person or Indemnified
Party under this Article VI of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to made against any indemnifying
party under this Article VI, 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 control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that such indemnifying party shall diligently pursue such defense and
that such indemnifying party shall not be entitled to assume such defense and an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the reasonable fees and expenses to be paid by the indemnifying
party, if the representation by such counsel of the Indemnified Person or
Indemnified Party and the
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indemnifying party would be inappropriate due to actual or potential conflicts
of interest between such Indemnified Person or Indemnified Party and any other
party represented by such counsel in such proceeding or the actual or potential
defendants in, or targets of, any such action include both the Indemnified
Person or the Indemnified Party and any such Indemnified Person or Indemnified
Party reasonably determines that there may be legal defenses available to such
Indemnified Person or Indemnified Party which are different from or in addition
to those available to such indemnifying party. The indemnifying party shall pay
for only one separate legal counsel for the Indemnified Persons or the
Indemnified Parties, as applicable, and such legal counsel shall be selected by
Purchasers holding a majority-in-interest of the Registrable Securities included
in the Registration Statement to which the Claim relates (with the approval of
the Initial Purchasers if they hold Registrable Securities included in such
Registration Statement), if the Purchasers are entitled to indemnification
hereunder, or by the Company, if the Company is entitled to indemnification
hereunder, as applicable. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Article VI, except to the
extent that the indemnifying party is actually prejudiced in its ability to
defend such action. The indemnification required by this Article VI shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and is due and payable. To the extent any Indemnified Person or Indemnified
Party, as the case may be, is ultimately determined, by a court of competent
jurisdiction, in a judgment that is not subject to further appeal or review, not
to be entitled to indemnification under this Article VI, then such person shall,
except as may otherwise be required pursuant to Article VII hereof repay any
such advances to the indemnifying party which advanced such expenses.
ARTICLE VII
CONTRIBUTION
------------
To the extent any indemnification by an indemnifying party under Article
VI is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under Article VI to the fullest extent permitted by law; provided,
however, that (i) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person of Registrable Securities who was not guilty of
such fraudulent misrepresentation, and (ii) contribution (together with any
indemnification or other obligations under this Agreement) by any seller of
Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable Securities.
ARTICLE VIII
REPORTS UNDER THE EXCHANGE ACT
------------------------------
With a view to making available to the Purchasers the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the SEC that may at any time
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permit the Purchasers to sell securities of the Company to the public without
registration ("RULE 144"), the Company agrees to, so long as any Purchaser owns
Preferred Stock and for six months thereafter:
8.1 File with the SEC in a timely manner and make and keep available
all reports and other documents required of the Company under the Securities Act
and the Exchange Act so long as the Company remains subject to such requirements
(it being understood that nothing herein shall limit the Company's obligations
under Section 4.3 of the Securities Purchase Agreement) and the filing and
availability of such reports and other documents is required for the applicable
provisions of Rule 144; and
8.2 Furnish to each Purchaser, promptly upon request, (i) a written
statement by the Company that it has complied with the reporting requirements of
Rule 144, the Securities Act and the Exchange 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 to permit the Purchasers to sell such securities pursuant
to Rule 144 without registration.
ARTICLE IX
ASSIGNMENT OF REGISTRATION RIGHTS
---------------------------------
The rights of the Purchasers hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, shall be
automatically assigned by each Purchaser to any transferee of all or any portion
of the Preferred Stock or the Registrable Securities (other than pursuant to a
Registration Statement or Rule 144 (so long as the shares subject to such
transfer are thereafter freely tradeable under the Securities Act)) if: (a) the
Purchaser agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (i) the
name and address of such transferee or assignee, and (ii) the securities with
respect to which such registration rights are being transferred or assigned, (c)
following such transfer or assignment, the further disposition of such
securities by the transferee or assignee is restricted under the Securities Act
or applicable state securities laws, (d) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence, the
transferee or assignee agrees in writing for the benefit of the Company to be
bound by all of the provisions contained herein, and (e) such transfer shall
have been made in accordance with the applicable requirements of the Securities
Purchase Agreement.
ARTICLE X
AMENDMENT OF REGISTRATION RIGHTS
--------------------------------
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with
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written consent of the Company, the Initial Purchasers (but not an Initial
Purchaser who no longer owns any Preferred Stock or Registrable Securities and
who is not adversely affected by such amendment or waiver) and Purchasers who
hold a majority interest of the Registrable Securities. Any amendment or waiver
effected in accordance with this Article X shall be binding upon each Purchaser
and the Company. Notwithstanding the foregoing, no amendment or waiver shall
retroactively affect any Purchaser without its comment or prospectively
adversely affect any Purchaser who no longer owns any Preferred Stock or
Registrable Securities without its consent. Neither Article VI nor Article VII
hereof may be amended or waived in a manner adverse to a Purchaser without its
consent.
ARTICLE XI
MISCELLANEOUS
-------------
11.1 A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
11.2 Any notices herein required or permitted to be given shall be in
writing and may be personally served or delivered by courier or by confirmed
telecopy, and shall be deemed delivered at the time and date of receipt (which
shall include telephone line facsimile transmission). The addresses for such
communications shall be:
If to the Company:
Molten Metal Technology, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chief Financial Officer
General Counsel
with a copy to:
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxxxx, Esq.
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If to CC Investments, LDC:
CC Investments, LDC
Corporate Centre, West Bay Road
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
with a copy to:
Castle Creek Partners, LLC
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Portfolio Manager
and with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
and if to any other Purchaser, at such address as such Purchaser, shall have
provided in writing to the Company, or at such other address as each such party
furnishes by notice given in accordance with this Section 11.2.
11.3 Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
11.4 This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed in the State of Delaware. The Company and each Purchaser irrevocably
consents to the jurisdiction of the federal courts located in the state of
Delaware and the state courts of the State of Delaware located in the County of
New Castle in the State of Delaware in any suit or proceeding based on or
arising under this Agreement and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in such courts. The Company and
each Purchaser irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. The parties hereto further agree that
service of process upon the parties hereto mailed by first class mail shall be
deemed in every respect effective service of process upon each such party in any
such suit or proceeding. Nothing herein shall affect either party's right to
serve process in any
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other manner permitted by law. The parties hereto agree that a final
non-appealable judgment in any such suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on such judgment or in any other
lawful manner.
11.5 This Agreement, the Preferred Stock, the Warrants, the Securities
Purchase Agreement and the Warrant Issuance Agreement (including all schedules
and exhibits thereto and all certificates and opinions required thereby)
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the Preferred Stock, the Warrants and the Securities
Purchase Agreement and the Warrant Issuance Agreement supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof. Notwithstanding the foregoing, that certain
engagement letter dated August 11, 1997, between the Company and GEM Advisers
Inc. and Global Emerging Markets, Inc. shall not be superseded and shall remain
in full force and effect.
11.6 Subject to the requirements of Article IX hereof, this Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
11.7 The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
11.8 This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto, by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
11.9 Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
11.10 [Intentionally Omitted]
11.11 The initial number of Registrable Securities included on any
Registration Statement and each increase to the number of Registrable Securities
included thereon shall be allocated pro rata among the Purchasers based on the
number of Registrable Securities held by each Purchaser at the time of such
establishment or increase, as the case may be. In the event a Purchaser shall
sell or otherwise transfer any of such holder's Registrable Securities, each
transferee shall be allocated a pro rata portion of the number of Registrable
Securities included on a Registration Statement for such transferor. Any shares
of Common Stock included on a
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Registration Statement and which remain allocated to any person or entity which
does not hold any Registrable Securities shall be allocated to the remaining
Purchasers, pro rata based on the number of shares of Registrable Securities
then held by such Purchasers. Without implication that the contrary would
otherwise be true, for purposes of this paragraph, all Preferred Stock then
outstanding shall be assumed converted into Registrable Securities.
11.12 The Agent shall have, with respect to the Warrant Shares, rights
hereunder as if it were a Purchaser (but not an Initial Purchaser) and the
Warrants and Warrant Shares were Preferred Stock and Conversion Shares,
respectively, provided, however, that the Agents' rights hereunder shall be
subordinated in all respects to the rights of the Purchaser's, including,
without limitation, with respect to the allocation, pursuant to Section 11.11,
of the numbers of shares of Common Stock included in a Registration Statement
(it being understood and agreed that, notwithstanding anything to the contrary
contained in this Agreement, and without limiting the generality of the
foregoing, in the event of a Registration Trigger Date (assuming for this
purpose that the applicable percentage trigger is 200% rather than 175%), then
all shares of Common Stock covered by the applicable Registration Statement
shall be allocated to the Purchasers (not including for this purpose the Agent)
and not to the Agent until such time as no Registration Trigger Date (assuming
for this purpose that the applicable percentage trigger is 200% rather than
175%) has existed for a period of ten consecutive days. Following such cure, the
Agent shall again be entitled to participate in an allocable portion of shares
covered by the applicable Registration Statement as if the Agent were a
Purchaser hereunder.
11.13 If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement.
* * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
MOLTEN METAL TECHNOLOGY, INC.
/s/ Xxxxxxxx X. Xxxxx
_______________________________________
Executive Vice President and
Chief Financial Officer
Initial Purchasers:
PURCHASER:
CC Investments, LDC
Corporate Centre, West Bay Road
P.O. Box 31106 SMB
Grand Cayman, Cayman Islands
/s/ Xxxx X. Xxxxxxxxx
By:_______________________________
Director
Its:______________________________
With a copy to:
Castle Creek Partners, LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Portfolio Manager
PURCHASER:
Xxxxx International
Xxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Tel#: (000) 000-0000
Fax#: (000) 000-0000
/s/ Xxxxxxx X. Xxxx
By:_______________________________
Member of Managing G.P.
Its:______________________________
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With a copy to:
Xxxxx Investments
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
PURCHASER:
Xxxxxxx Investments International, Ltd.
International Fund Administration Ltd.
00 Xxx-xx-Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx XX00
Tel#: (000) 000-0000
Fax#: (000) 000-0000
/s/ Xxxxxxx X. Xxxx
By:_______________________________
Member of Investment Manager
Its:______________________________
With a copy to:
Xxxxx Investments
0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
PURCHASER:
Xxxxxx Partners
c/o Leeds Management Services
000 Xxxxx Xx., 0xx Xxxxx
Xxxxxxxx, Xxxxxxx XX00
Fax#: (000) 000-0000
Attn: Xxxx Xxxxx
/s/ Xxxx Xxxxx
By:_______________________________
Officer
Its:______________________________
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With a copy to:
Citadel Investment Group LLC
000 Xxxx Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxx
PURCHASER:
Olympus Securities, Ltd.
c/o Leeds Management Services
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxx XX00
Fax#: (000) 000-0000
Attn: Xxxx Xxxxx
/s/ Xxxx Xxxxx
By:_______________________________
Director
Its:______________________________
With a copy to:
Citadel Investment Group LLC
000 Xxxx Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxx
GEM Ventures Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel#: (000) 000-0000
Fax#: (000) 000-0000
Attn: Xxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
By:_______________________________
Director
Its:______________________________
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EXHIBIT 1
TO REGISTRATION
RIGHTS AGREEMENT
[Date]
[Name and address
of transfer agent]
RE: [COMPANY NAME]
Ladies and Gentlemen:
We are counsel to , a Delaware corporation (the "COMPANY"), and we
understand that [Name of Purchaser] (the "HOLDER") has purchased from the
Company Series A Convertible Participating Preferred Stock of the Company (the
"PREFERRED STOCK"), convertible into shares of the Company's common stock, par
value $.01 per share (the "COMMON STOCK"). The Preferred Stock was purchased by
the Holder pursuant to a Securities Purchase Agreement, dated as of September 5,
1997, by and among the Company and the signatories thereto (the "AGREEMENT").
Pursuant to a Registration Rights Agreement, dated as of September 5, 1997, by
and among the Company and the signatories thereto (the "REGISTRATION RIGHTS
AGREEMENT"), the Company agreed with the Holder, among other things, to register
the Registrable Securities (as that term is defined in the Registration Rights
Agreement) under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
upon the terms provided in the Registration Rights Agreement. In connection with
the Company's obligations under the Registration Rights Agreement, on _____ __,
1997, the Company filed a Registration Statement on Form S-_____ (File No. 333-
__________) (the "REGISTRATION Statement") with the Securities and Exchange
Commission (the "SEC") relating to the Registrable Securities, which names the
Holder as a selling stockholder thereunder.
[Other customary introductory and scope of examination language to be
inserted]
Based on the foregoing, we are of the opinion that the Registrable
Securities have been registered under the Securities Act.
[Other appropriate customary language to be included.]
Very truly yours,
cc: [Name of Purchaser]
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