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EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
December 7, 1998, is by and between Environmental Safeguards, Inc., a Nevada
corporation (the "Company"), and Nadia, L.L.C. (the "Holder").
W I T N E S S E T H:
WHEREAS, the Company has entered into a Subscription Agreement dated
December 7, 1998 (the "Subscription Agreement"), pursuant to which it has
offered shares of its Common Stock, par value $.001, (the "Common Stock") to the
Holder; and
WHEREAS, the Company has sold to the Holder in a private transaction
pursuant to a Subscription Agreement 500,000 shares of the Company's Common
Stock for $1.50 in cash; and
WHEREAS, in connection with Holder's purchase of the Common Stock, the
Company agreed to grant certain registration rights in respect of the shares of
Common Stock (the "Shares").
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 is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE ONE
REGISTRATION RIGHTS
Section 1.1 The Registration. Within 30 days after the execution of the
Subscription Agreement and the tender, pursuant to the Subscription Agreement,
of good funds (the "Purchase"), and continuing for a period of two years from
the date of the Purchase, the Company will file a Registration Statement
("Registration Statement") pursuant to the Securities Act of 1933, as amended
(the "Securities Act") to register the resale of the Shares purchased (the
"Registered Shares") with the Securities and Exchange Commission (the
"Commission"). The Company shall promptly give written notice to the Holder of
such action. The Company will use their best efforts to cause the Registration
Statement to become effective and will actively pursue the effectiveness of the
Registration Statement and will keep the Registration Statement current for a
period of two years after the date of the Purchase. The Company shall not be
obligated to effect more than one registration on behalf of the Holder in
connection with the Subscription Agreement. Notwithstanding the foregoing, if
the Company is engaged in negotiations in respect of an acquisition or financing
transaction and, in the good faith judgment of the Board of Directors such
transaction would be adversely affected by the filing of the Registration
Statement, the Company shall be entitled to postpone the filing of such
registration statement until such transaction would not be adversely affected by
such filing but, in any event, for a period not to exceed 90 days.
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Section 1.2 Exception to Registration. The Company shall not be
required to maintain the effectiveness of the Registration Statement under this
Article One if (i) in the written opinion of counsel for the Company, which
counsel and the opinion so rendered shall be reasonably acceptable to the
Holder, such Holder may sell without registration under the Act all Registered
Shares which it requested registration under the provisions of the Act and in
the manner and in the quantity in which the Registered Shares were proposed to
be sold, or (ii) the Company shall have obtained from the Commission a
"no-action" letter to that effect.
ARTICLE TWO
REGISTRATION PROCEDURES
Section 2.1 Registration Obligations. In performing its obligations
under Article One to register the Registered Shares, the Company will, subject
to the limitations provided herein:
(a) prepare and file with the Commission the Registration Statement and
use its best efforts to cause such registration to become and remain effective
for the term specified herein;
(b) prepare and file with the Commission such amendments and supplements
to the Registration Statement and the Prospectus used in connection therewith as
may be necessary to keep the Registration Statement effective in accordance with
the terms of this Agreement and to comply with the provisions of the Act with
respect to the disposition of all Registered Shares covered by the Registration
Statement;
(c) furnish to the Holder one conformed copy of the Registration
Statement and of each such amendment and supplement thereto (in each case
including all exhibits), one copy of the Prospectus (including each preliminary
prospectus and any summary prospectus) and any other Prospectus filed under Rule
424 under the Act, and such other documents, as the Holder may reasonably
request;
(d) use its best efforts to (i) register or qualify the Registered Shares
under such other securities or blue sky laws of such jurisdiction as the Holder
shall reasonably request, (ii) keep such registration or qualification in effect
for so long as the Registration Statement remains in effect, and (iii) take any
other action which may be reasonably necessary or advisable to enable the Holder
to consummate the disposition of the Registered Shares in such jurisdiction,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this Section 2.1(d) be obligated to be so
qualified, to consent to general service of process in any such jurisdiction, or
to take any such action which would impose unreasonable expense on the Company;
(e) notify the Holder at any time when a Prospectus relating to the
Shares is required to be delivered under the Act, upon discovery that, or upon
the happening of any event as a result of
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which, the Prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made, and
prepare and furnish to the Holder one copy of a supplement to or an amendment of
such Prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(f) provide and cause to be maintained a transfer agent for the Common
Stock from and after a date not later than the effective date of the
Registration Statement;
(g) properly notify any securities exchange on which any of the Company's
Common Stock is listed of the registration of any of the Registered Shares, and
use its best efforts to satisfy all prerequisites and regulations of any such
exchange relating to the trading of such Registered Shares on such exchange; and
(h) make available for inspection by the Holder, and any one attorney,
accountant or other agent retained by the Holder of Registered Shares, as a
group, (the "Inspector"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable him to exercise his due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Inspector in connection
with such registration statement; provided that records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspector are confidential shall not be disclosed by the Inspector unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the Registration Statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction; provided, further, the Holder agrees that he will, upon learning
that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to undertake
appropriate action and to prevent disclosure of the Records deemed confidential.
Section 2.2 Registration Obligations of Holder. As a condition to the
Company performing its obligations under Article One to register the Registered
Shares, the Holder will, as expeditiously as possible:
(a) furnish the Company in writing such information regarding the Holder,
the Registered Shares and other securities of the Company held by the Holder,
and the distribution of such Registered Shares as the Company may from time to
time reasonably request in writing. If the Holder refuses to provide the Company
with any of such information on the grounds that it is not necessary to include
such information in the Registration Statement, the Company may exclude the
Holder's Registered Shares from the Registration Statement if the Company
provides the Holder with
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an opinion of counsel to the effect that such information must be included in
the Registration Statement and the Holder thereafter continues to withhold such
information.
(b) agree to promptly notify the Company as and when any Registered
Shares are sold and when the Holder elects to terminate all further offers and
sales of Shares pursuant to the Registration Statement.
(c) upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 2.1(e), the Holder will forthwith
discontinue the Holder's disposition of the Registered Shares pursuant to the
Registration Statement until the Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.1(e) and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the current Prospectus at the time of receipt of such notice.
Section 2.3 Expenses. All expenses incident to the Company's performance
of its obligations under this Agreement, including without limitation, all
registration and filing fees, fees and expenses of compliance with securities
and Blue Sky laws, printing expenses, fees and disbursements of the Company's
counsel, independent certified public accountants, and other persons retained by
the Company (all such expenses being herein called "Registration Expenses") will
be borne by the Company. The Holder shall be responsible for all selling fees,
expenses, discounts and commissions relating to the Registered Shares and for
the fees and expenses of counsel and other persons engaged by the Holder.
ARTICLE THREE
REPORTING REQUIREMENTS
With a view to making available to the Holder the benefits of certain
rules and regulations of the Commission which may at any time permit the sale of
the Registered Shares to the public without registration, the Company agrees to
use its best efforts to (i) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Act and (ii) file with
the Commission in a timely manner all reports and other documents required of
the Company under the Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and (iii) take such further action as any Holder may
reasonably request, to the extent required from time to time to enable such
Holder to sell the Registered Shares without registration under the Act pursuant
to the exemptions provided by Rule 144 or any similar rule or regulation adopted
by the Commission.
ARTICLE FOUR
INDEMNIFICATION
Section 4.1 Indemnification by the Company. In the event of any
registration of the Shares under the Act, the Company agrees to indemnify and
hold harmless Holder and each other person
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who participates as an underwriter in the offering or sale of such securities
against any and all claims, demands, losses, costs, expenses, obligations,
liabilities, joint or several, damages, recoveries and deficiencies, including
interest, penalties and attorneys' fees (collectively, "Claims"), to which
Holder or underwriter may become subject under the Act or otherwise, insofar as
such Claims (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which Holder's Shares were registered under the Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse Holder and
each such underwriter for any legal or any other expenses reasonably incurred by
him in connection with investigating or defending any such Claim (or action or
proceeding in respect thereof); provided that the Company shall not be liable in
any such case to the extent that any such Claim (or action or proceeding in
respect thereof) or expense arises out of or is based on an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance on and in conformity
with written information furnished to the Company by the Holder expressly for
use in the preparation thereof, and provided, further, that the Company shall
not be liable to any person who participates as an underwriter in the offering
or sale of Registered Shares or any other person, if any, who controls such
underwriter within the meaning of the Act, in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such person's failure to send or give a copy
of the Prospectus, as the same may be then supplemented or amended, to the
person asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registered Shares to such person if such statement or omission was corrected in
such Prospectus so long as such Prospectus, and any amendments or supplements
thereto, have been furnished to such underwriter in sufficient numbers and in a
timely manner to permit distribution thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
Holder or any such underwriter and shall survive the transfer of the Registered
Shares by Holder.
Section 4.2 Indemnification by Holder. In the event of any registration
of the Registered Shares under the Act, the Holder agrees to indemnify and hold
harmless, in the same manner and to the same extent as set forth in Section 4.1,
the Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company, within the meaning of the Act,
with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance on and in
conformity with written information furnished to the Company by the Holder
expressly for use in the preparation of such registration statement, preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement. Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf
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of the Company or any such director, officer or controlling person and shall
survive the transfer of the Registered Shares by Holder.
Section 4.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a Claim referred to in this Article Four, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Article Four,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnifying party, 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, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such Claim.
Section 4.4 Indemnification Payments. The indemnification required by
this Article Four shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
ARTICLE FIVE
MISCELLANEOUS
Section 5.1 Notices. All notices required or permitted herein must be in
writing and shall be deemed to have been duly given the first business day
following the date of service if served personally, on the first business day
following the date of actual receipt if delivered by telecopier, telex or other
similar communication to the party or parties to whom notice is to be given, on
the first business day following delivery to an air courier, if sent by
overnight air courier guaranteeing next day delivery, or on the third business
day after mailing if mailed to the party or parties to whom notice is to be
given by registered or certified mail, return receipt requested, postage
prepaid, to the parties at the addresses set forth below, or to such other
addresses as either party hereto may designate to the other by notice from time
to time for this purpose.
ENVIRONMENTAL SAFEGUARDS, INC.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx
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Telephone No. (000) 000-0000
Facsimile No: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxxx & Xxxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
XXXXXX
Xxxxx, L.L.C.
Attn: Xxxxxx Xxxxxx
Grosvenor Trust Company Limited
Xxxxxxxxx Xxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000 or 000-000-0000
With a copy to:
XxXxxx & Xxxxxx Xxxxxxx Hynett
Attn: Xxxxxxx Xxxxxx Alawi Enterprises, L.L.C.
0000 Xxxxxxx, Xxxxx 0000 X.X. Xxx 000 Xxxxxx
Xxxxxxx, Xxxxx 00000 Postal Code 114
Telephone No.: 000-000-0000 Sultanate of Oman
Facsimile No.: 000-000-0000 Telephone No.: 000 000-000-000
Facsimile No.: 011 968-736-858
Section 5.2 Term of the Agreement. This Agreement shall terminate with
respect to Holder on the earlier to occur of (i) all of the Registered Shares
having been registered as provided in Article One or (ii) two years from the
date of purchase of the Registered Shares.
Section 5.3 Entire Agreement. This Agreement contains and constitutes the
entire agreement between and among the parties with respect to the matters set
forth herein and supersedes all prior agreements and understandings between the
parties hereto relating to the subject matter hereof. There are no agreements,
understandings, restrictions, warranties or representations among the parties
relating to the subject matter hereof other than those set forth or referred to
herein. This instrument is not intended to have any legal effect whatsoever, or
to be a legally binding agreement or any evidence thereof, until it has been
signed by all parties hereto.
Section 5.4 Binding Effect. This Agreement shall be binding on and
enforceable by the Holder and by the Company and its successors. No transferee
of Registered Shares shall acquire any rights under this Agreement except with
the written consent of the Company, which may be withheld for any reason. In the
event the Company is a party to a merger or consolidation in a transaction in
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which the Registered Shares are converted into equity securities of another
entity, then the Company shall cause such other entity to assume the Company's
obligations under this Agreement such that this Agreement shall apply to the
equity securities received by the Holder in exchange for the Registered Shares,
unless such equity securities are, upon receipt and without further action by
the Holder, readily salable without registration under the Act.
Section 5.5 Construction. This Agreement shall be construed, enforced and
governed in accordance with the laws of the State of Texas. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or neuter
gender thereof or to the plurals of each, as the identity of the person or
persons or the context may require. The descriptive headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any
provision contained herein.
Section 5.6 Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless agreed to in
writing by both the Company and the Holder.
Section 5.7 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
Section 5.8 Successors and Assigns. Except as otherwise provided herein,
the provisions shall inure to the benefit of, and be binding upon, the
successors and permitted assigns of the parties hereto. No party hereto may
assign its rights or delegate its obligations under this Agreement without the
prior written consent of the other parties hereto.
Section 5.9 Counterparts. This Agreement may be executed in any number of
Counterparts and by the parties hereto in separate Counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
[Signatures Appear on the Next Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates shown below.
HOLDER: Nadia LLC
/s/ XXXXX XXXX XX XXXXXX
by:
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its:
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Name (Please type or print)
Signature of Spouse or Co-Owner if
funds are to be invested as joint
tenants by the entirety or
community property.
Dec 7, 98
Date
COMPANY: ENVIRONMENTAL SAFEGUARDS, INC.
By: /s/ XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, Chief Executive Officer
December 7, 1998
Date
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