EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is entered into as of this
12th day of July, 2002, between HiEnergy Technologies, Inc., a Washington
corporation ("Issuer"), and the undersigned ("Permitted Right Holder").
WHEREAS, Issuer has issued an option to acquire shares of its common stock
to Permitted Right Holder; and
WHEREAS, Issuer has agreed to give Permitted Right Holder registration
rights as set forth below.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree as follows:
1. DEFINITIONS. As used in this Agreement the following terms shall have
-----------
the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
1.2 "PERMITTED RIGHT HOLDER" and "PERMITTED RIGHT HOLDERS" means any
Optionee under that certain First Amended and Restated Stock Option Agreement
entered into July 12, 2002, by and between the Issuer and Xxxxx Xxxxxx with
respect to 1,000,000 underlying Shares of Common Stock, as such may be amended
from time to time (the "Option").
1.3 "REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
1.4 "REGISTRABLE SECURITIES" means any shares of its common stock issued by
Issuer to Permitted Right Holders pursuant to the Option.
1.5 "REGISTRATION EXPENSES" shall mean all expenses incurred by Issuer in
complying with Section 2 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for
Issuer, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of Issuer which shall be paid in any event by Issuer), but
shall expressly exclude fees and disbursements of counsel for the Permitted
Right Holders.
1.6 "SEC" means the Securities and Exchange Commission.
1.7 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
1.8 "SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
Page 1
2. TYPES OF REGISTRATION RIGHTS
-------------------------------
2.1 PIGGYBACK
---------
(a) If Issuer at any time proposes for any reason to register its common
stock under the Securities Act (other than on Form S-4 or Form S-8 promulgated
under the Securities Act or any successor forms thereto), it shall promptly give
written notice to each Permitted Right Holder of its intention so to register
its common stock and, upon the written request, given within 10 business days
after delivery of any such notice by Issuer, of any Permitted Right Holder to
include in such registration Registrable Securities (which request shall specify
the number of Registrable Securities proposed to be included in such
registration), Issuer shall use its commercially reasonable best efforts to
cause all such Registrable Securities to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; provided that if, at any time after written notice of its
intention to register any offering of securities and prior to the effective date
of the registration statement filed in connection with such registration, Issuer
will determine for any reason either not to register or to delay registration of
such securities, Issuer may, at its election, give written notice of such
determination to each Permitted Right Holder and, thereon, (i) in the case of a
determination not to register, will be relieved of this obligation to register
any Registrable Securities in connection with such registration (but not from
the obligation to pay the Registration Expenses in connection therewith), and
(ii) in the case of a determination to delay registering, will be permitted to
delay registering any Registrable Securities, for the same period as the delay
in registering such other securities. The right provided the Permitted Right
Holders of the Registrable Securities pursuant to this section will be
exercisable at their sole discretion upon the execution of this Agreement.
(b) If Issuer fails to propose to register its common stock under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto) within 30 days following the
initial closing of its offering of Series A Convertible Preferred Stock, then
Issuer shall nevertheless use its best efforts to effect, as soon as
practicable, the registration under the Securities Act of all Registrable
Securities that the Permitted Right Holders request to be registered. If the
initial closing of Issuer's offering of Series A Convertible Preferred Stock has
not occurred by September 30, 2002, then Issuer shall nevertheless use its best
efforts to effect, as soon as practicable, the registration under the Securities
Act of all Registrable Securities that the Permitted Right Holders request to be
registered.
3. PROCEDURE
---------
OBLIGATIONS OF ISSUER. Whenever required to effect the
----------------------
registration of any Registrable Securities under Section 2.1, Issuer shall, as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement or amendments
thereto, to effect such registration (including such audited financial
statements as may be required by the Securities Act or the rules and regulations
promulgated thereunder) and thereafter use its commercially reasonable best
efforts to cause a registration statement that registers such Registrable
Securities to become and remain effective for 180 days or until the Permitted
Right Holders have completed the distribution related thereto, whichever occurs
Page 2
first. If requested by the Permitted Right Holders, Issuer shall file, cause to
become effective or maintain the effectiveness of any registration statement
that contemplates a distribution of securities on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act and subject to the same time
constraints as provided in the preceding sentence.
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement for the
period set forth in paragraph (a) above.
(c) notify, in writing, each Permitted Right Holder promptly (A) of the
receipt by Issuer of any notification with respect to any comments by the SEC
with respect to such registration statement or prospectus or any amendment or
supplement thereto or any request by the SEC for the amending or supplementing
thereof or for additional information with respect thereto, (B) of the receipt
by Issuer of any notification with respect to the issuance by the SEC of any
stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (C) of the receipt by Issuer
of any notification with respect to the suspension of the qualification of such
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(d) use its best efforts to register or qualify such Registrable Securities
under such other securities or "blue sky" laws of such jurisdictions as each
Permitted Right Holder reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable the Permitted
Right Holders to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Permitted Right Holders; provided, however,
that Issuer will not be required to qualify generally to do business, subject
itself to general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required so to do but for this
paragraph;
(e) furnish to each Permitted Right Holder such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Permitted Right Holder may reasonably request in order to facilitate the
public sale or other disposition of such Registrable Securities;
(f) make available for inspection by any Permitted Right Holder, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
Permitted Right Holder or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents and
properties of Issuer (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause Issuer's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any such
Inspector in connection with such registration statement. Any of the Information
which Issuer determines in good faith to be confidential, and of which
Page 3
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (A) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the registration statement, (B) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (C) such Information has been made
generally available to the public without breach of any duty of confidentiality.
The Permitted Right Holders agree that they will, upon learning that disclosure
of such Information is sought in a court of competent jurisdiction, give notice
to Issuer and allow Issuer, at Issuer's expense, to undertake appropriate action
to prevent disclosure of the Information deemed confidential;
(g) use its commercially reasonable best efforts to list all Registrable
Securities covered by the registration statement on any securities exchange on
which any of the Registrable Securities are then listed; and
(h) use its commercially reasonable best efforts to take all other steps
necessary to effect the registration of such Registrable Securities contemplated
hereby.
3.2 EXPENSES OF REGISTRATION. Except as specifically provided herein, all
--------------------------
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.1 herein shall be borne by
Issuer. All Selling Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 2.1 shall be borne by the
Permitted Right Holders. Issuer shall not, however, be required to pay the
Registration Expenses of any registration proceeding begun pursuant to Section
2.1, the request of which has been subsequently withdrawn by the Permitted Right
Holders unless the withdrawal is based upon material adverse information
concerning Issuer of which the Permitted Right Holders were not aware at the
time of such request. If the Permitted Right Holders are required to pay the
Registration Expenses of a withdrawn offering pursuant to the preceding
sentence, until such time as all the expenses have been paid to Issuer in full,
the Permitted Right Holders shall forfeit their right pursuant to Section 2.1 to
participate in piggyback registration. If Issuer is required to pay the
Registration Expenses of a withdrawn offering, then the Permitted Right Holders
shall not forfeit their right pursuant to Section 2.1 to participate in
piggyback registration.
3.3 COUNSEL FEES. In connection with any registration of an offering under
-------------
this Section 3, if there is more than one Permitted Right Holder, the Permitted
Right Holders shall designate one counsel for the Permitted Right Holders who
shall be authorized to represent the interests of the Permitted Right Holders
with respect to Issuer and the underwriter in connection with the offering. If
the Permitted Right Holders are unable to designate one counsel after a period
of 30 days, Issuer may solicit suggestions for such counsel from the Permitted
Right Holders (no more than one suggestion per Permitted Right Holder), and
select one counsel from among those suggested, and the selection of such counsel
shall be binding on the Permitted Right Holders. The fees and expenses of
counsel for the Permitted Rights Holders shall be paid by the Permitted Rights
Holders.
3.4 RIGHT TO DEFER REGISTRATION. Issuer shall not be required to effect a
-----------------------------
registration pursuant to Section 2.1 if Issuer shall furnish to the Permitted
Right Holders a certificate signed by the Chairman of the Board stating that in
Page 4
the good faith judgment of the Board of Directors of Issuer, it would be
materially detrimental to Issuer and its shareholders for such registration
statement to be effected at such time, in which event Issuer shall have the
right to defer such filing for a period of not more than one hundred twenty
(120) days after receipt of the request pursuant to Section 2.1; provided that
such right to delay a request shall be exercised by Issuer not more than once in
any twelve (12) month period.
4. TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
-------------------------------------
under this Agreement, and all notices required under this Agreement, shall
terminate and be of no further force and effect on the date that is one year
after the grant of the Option; provided, however, that if a registration of the
Registrable Securities has not been declared effective by such date, the rights
granted hereunder shall not terminate until a registration statement including
the Registrable Securities has been declared effective.
5. REQUESTS FOR INFORMATION. The Permitted Right Holders hereby agree to
--------------------------
promptly furnish Issuer with any and all written information concerning the
Permitted Right Holders that Issuer reasonably requests in order to (1) prepare
the registration statements and (2) conduct such other due diligence as may be
necessary for Issuer to satisfy or respond to any regulatory or governmental
requirements or requests. The Permitted Right Holders agree to provide true,
complete and accurate information based on a diligent review of appropriate
records as would be conducted by a prudent man in the management of his own
property. The Permitted Right Holders understand that Issuer may incorporate
some or all of such information into the foregoing documents or may determine
based on such information that certain disclosures are not required, and that
Issuer will depend on the Permitted Right Holders to provide true, complete and
accurate information.
6. DELAY OF REGISTRATION. The Permitted Right Holders shall not have the
right to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Agreement.
7. INDEMNIFICATION. In the event any Registrable Securities are included in
---------------
a registration statement under Section 2:
7.1 Issuer agrees to indemnify and hold harmless each Permitted Right
Holder and each person, if any, who controls a Permitted Right Holder within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), to which a Permitted Right
Holder may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, or amendments or
supplements thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
Issuer will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any of the
above-mentioned documents in reliance upon, and in conformity with, written
information furnished to Issuer by a Permitted Right Holder specifically for use
Page 5
in the preparation thereof. This indemnity agreement will be in addition to any
liability that Issuer may otherwise have.
7.2 Each Permitted Right Holder agrees that it will indemnify and hold
harmless Issuer, and each officer, director of Issuer or person, if any, who
controls Issuer within the meaning of the Securities Act, against any losses,
claims, damages or liabilities (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees) to which Issuer or any such
officer, director or controlling person may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the registration
statement, or amendments or supplements thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made the
registration statement or amendments or supplements thereto in reliance upon and
in conformity with, written information furnished to Issuer by Permitted Right
Holders specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability that the Permitted Right Holders
may otherwise have.
7.3 Promptly after receipt by an indemnified party under this Section 7.3
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability that it may have to any indemnified party except to the
extent of actual prejudice demonstrated by the indemnifying party. In case any
such action is brought against any indemnified party, and the indemnified party
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
thereof, subject to the provisions herein stated and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the indemnified
party. No settlement of any action against an indemnified party shall be made
without the prior written consent of the indemnified party, which consent shall
not be unreasonably withheld.
7.4 All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses), shall be paid to the
indemnified party, as incurred, within ten (10) days of written notice thereof
to the indemnifying party; provided, that the indemnifying party may require
such indemnified party to undertake to reimburse all such fees and expenses to
Page 6
the extent it is finally judicially determined that such indemnified party is
not entitled to indemnification hereunder.
8. CONTRIBUTION. In order to provide for just and equitable contribution
------------
under the Securities Act or otherwise arising out of or based upon any untrue
statement or alleged untrue statement of any material fact contained in a
registration statement under Section 2, or amendments or supplements thereto, or
arising out of or based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in any case in which (i) the indemnified party
makes a claim for indemnification pursuant to Section 7 hereof but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 7 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
or otherwise may be required on the part of any indemnified party, in either
such case Issuer and Permitted Right Holders shall contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (which
shall, for all purposes of this Agreement, include, but are not limited to, all
reasonable costs of defense and investigation and all reasonable attorneys'
fees), in either such case (after contribution from others) on the bases of
relative fault as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
Issuer on the one hand or the Permitted Right Holders on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Issuer and the Permitted Right
Holders agree that it would not be just or equitable if contribution pursuant to
this Section 8 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in this Section 8. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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 who was
not guilty of such fraudulent misrepresentation.
9. MISCELLANEOUS
9.1 APPLICABLE LAW. This Agreement and all rights hereunder
---------------
shall be governed by, and interpreted in accordance with, the laws of the State
of California, without regard to the conflicts of laws provisions thereof. The
parties hereby submit to the nonexclusive jurisdiction of the courts of the
State of California and of the federal district courts in California with
respect to any action or legal proceeding commenced by any person or entity
relating to or arising out of this Agreement. The parties consent to the service
of process in any such action or legal proceeding by means of registered or
certified mail, return receipt requested, in care of the address set forth below
on the signature page or such other address as a party shall furnish in writing
to the other.
Page 7
9.2 COUNTERPARTS AND FACSIMILE SIGNATURE. This Agreement may be signed in
--------------------------------------
counterparts, all of which when taken together shall constitute a single
executed document. Signatures transmitted by facsimile shall be deemed valid
execution of this Agreement binding on the parties.
9.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
-----------------------------
agreement among the parties concerning the subject matter of this Agreement, and
it supersedes any prior oral or written agreements between the parties. A
separate writing may inform the construction of the provisions of this Agreement
if expressly called for by the terms of this Agreement. This Agreement may not
be amended except by a written agreement signed by the party against which
enforcement is sought.
9.4 WAIVER. The failure of a party to insist upon strict adherence to any
------
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
9.5 ASSIGNMENT. Subject to the limitations below, this Agreement shall
----------
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns. The rights to cause Issuer to register
Registrable Securities pursuant to this Agreement may be not be assigned by
Permitted Right Holders.
9.6 HEADINGS. The section headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.7 NOTICES. All notices shall be in writing and shall be deemed to have
-------
been sufficiently given or served (i) immediately, when personally delivered,
(ii) within three (3) days after being deposited in the United States mail, by
registered or certified mail, or (iii) within one (1) day after being deposited
with a reputable overnight mail carrier which provides delivery of such mail to
be traced, addressed as indicated on the signature pages below. No change of
address shall be valid unless it is communicated in writing to the other party
in accordance with this Section 9.7.
[remainder of page intentionally blank]
Page 8
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first written above.
HIENERGY TECHNOLOGIES, INC., a Washington corporation
By: /s/ Xxxxx Xxxxx
-------------------------
Name: Xxxxx Xxxxx
Its: President
PERMITTED RIGHT HOLDER:
Name of Entity (if applicable):
Signature: /s/ Xxxxx Xxxxxx
-------------------------
Print Name: Xxxxx Xxxxxx
-------------------------
Its (title if applicable):
Address: 000 Xxxxxxx Xxxxx
------------------------------------
Xxxxxxxxx Xxxx, Xxx Xxxxxx 00000
------------------------------------
Page 9
