Exhibit 10.20
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT dated March 27, 1995, is
executed by and between Gold Capital Corporation (the
Company) whose address is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Tonkin Springs Venture Limited
Partnership (TSVLP).
RECITALS
WHEREAS, effective March 27, 1995, the parties have agreed
to the Amended and Restated Secured Promissory Note which
further amended the previously negotiated Secured Promissory
Note dated December 31, 1993, as amended (the Note), all
conditioned upon execution by the parties of this
Registration Rights Agreement.
NOW THEREFORE, in consideration for TSVLP agreeing to the
Amended and Restated Secured Promissory Note dated March 27,
1995, Gold Capital commits to the following rights for
demand registration of Common Shares of Gold Capital held by
or issuable to TSVLP now or in the future by virtue of
dividends and/or conversion rights pursuant to the Preferred
Convertible Stock Agreement between the parties dated
December 31, 1993:
1. Certain Definitions:
Commission shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the
Securities Act.
Conversion Stock means the Common Stock issued or issuable
pursuant to conversion rights under the Series A Preferred
Stock Agreement.
Dividend Stock means the Common Stock issued or issuable
pursuant to the annual mandatory dividend requirements as
provided under the Series A Preferred Stock Agreement.
Exchange Act shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statue and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Holder shall mean TSVLP holding Registrable Securities and
any person holding Registrable Securities to whom the rights
hereunder have been transferred in accordance with Section
12.
Registrable Securities means any Common Stock of the Company
issued or issuable in respect to the Conversion Stock and
Dividend Stock, or other securities issued or issuable
pursuant to the issuance of the Common Stock upon any stock
split, stock dividend, recapitalization, or similar event,
or any Common Stock otherwise issuable with respect to the
Common Stock; provided, however, that shares of Common Stock
or other securities shall only be treated as Registrable
Securities if and so long as they have not been (a) sold to
or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (b) sold
or are available for sale in the opinion of counsel to the
Company in a single transaction exempt from the registration
and prospectus delivery requirements of the Securities Act
so that all transfer restrictions and restrictive legends
with respect thereto are or may be removed upon the
consummation of such sale.
The terms register, registered and registration refer to a
registration effected by preparing and filing with the
Commission a registration statement in compliance with the
Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
Registration Expenses shall mean all expenses, except
Selling Expenses as defined below, incurred by the Company
in complying with Section 4, 5 and 6 thereof, including,
without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and
disbursements of counsel; for the Company, blue sky fees and
expenses, the expense of any special audits incident to or
required by any such registration (but excluding the
compensation of regular employees of the Company which shall
be paid in any event by the Company).
Restricted Securities shall mean the securities of the
Company required to bear the legend set forth in Section 3
hereof.
Securities Act shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time.
Selling Expenses shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to
the securities registered by the Holder and all reasonable
fees and disbursements of counsel for Holder.
2. Restrictions on Transferability. The Conversion Stock
and Dividend Stock shall not be sold, assigned, transferred
or pledged except upon satisfaction of the conditions
specified herein, which conditions are intended to ensure
compliance with the provisions of the Securities Act. The
Holder will cause any proposed purchaser, assignee,
transferee or pledge of the Conversion Stock or Dividend
Stock held by the Holder to agree to take and hold such
securities subject to the provisions and conditions of this
Agreement.
3. Restrictive Legend. Each certificate representing (i)
the Conversion Stock,(ii) the Dividend Stock, and (iii) any
other securities issued in respect of the Conversion Stock
and Dividend Stock upon any stock split stock dividend,
recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted by the provisions of
Section 4 below) be stamped or otherwise imprinted with a
legend in the following form (in addition to any legend
required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
THE COMPANY RECEIVES AN OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT.
The Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the
Conversion Stock and the Dividend Stock in order to
implement the restrictions on transfer established herein.
4. Requested Registration.
(a) Request for Registration. The Company hereby agrees
upon receipt of written request of Holder that the Company
effect a registration under the Securities Act with respect
to Registrable Securities, the Company will:
(I) as soon as practicable, use its best efforts to effect
such registration (including, without limitation,
appropriate qualification under applicable blue sky or other
state securities laws for the State of Colorado and
appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental
requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are
specified in such request, together with all or such portion
of the Registrable Securities of the Holder.
Provided, however, that the Company shall not be obligated
to take any action to effect any such registration,
qualification or compliance pursuant to this Section 4 more
that once or prior to September 30, 1995.
Subject to the foregoing clause, the Company shall file a
registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after
receipt of the request of the Holder, but in any event
within 45 days of receipt of such written request of Holder.
(b) Underwriting. In the event that a registration
pursuant to this Section 4 is for a registered public
offering involving an underwriting, the Company shall, along
with the Holder, enter into an underwriting agreement in
customary form with the managing underwriter(s) selected for
such underwriting, but subject to the Company's reasonable
approval.
5. Company Registration.
(a) Notice of Registration. If at any time or from time to
time the Company shall determine to register any of its
securities, either for its own account or the account of a
security holder or holders, other than (i) a registration
relating solely to employee benefit plans or (ii) a
registration relating solely to a Commission Rule 145
transaction, the Company will:
(I) Promptly give Holder written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and
in any underwriting involved therein, all the Registrable
Securities specified in a written request, made within 20
days after receipt of such written notice from the Company
to the Holder.
(b) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving
an underwriting, the Company shall so advise the Holder as
part of the written notice given pursuant to section
5(a)(i). In such event the right of Holder to registration
pursuant to Section 5 shall be conditioned upon Holder's
participation in such underwriting and the inclusion of
Holder's Registrable Securities in the underwriting to the
extent provided herein. Holder participating in the
proposed distribution of Holder's securities through such
underwriting shall (together with the Company and any other
shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for
such underwriting by the Company. Notwithstanding any other
provision of this Section 5, if the managing underwriter
determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing
underwriter may limit the Registrable Securities to be
included in such registration. The Company shall so advise
the Holder and the number of shares of Registrable
Securities that may be included in the registration and
underwriting of the Holder shall be adjusted at the time of
filing the registration statement. Any securities excluded
from such underwriting shall be withdrawn from such
registration, and shall not be transferred in a public
distribution prior to 90 days after the effective date of
the registration statement relating thereto, or such other
shorter period of time as the underwriters may require. The
Company may include shares of Common Stock held by
shareholders other than Holder in a registration statement
pursuant to Sections 4 or 5 if, and to the extent that, the
amount of Registrable Securities otherwise included in such
registration statement would not thereby be diminished.
(c) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration
initiated by it under this Section 5 prior to the
effectiveness of such registration whether or not Holder has
elected to include securities in such registration.
6. Registration on Form S-3.
(a) If Holder requests that the Company file a registration
statement on Form S-3 (or any successor form to Form S-3)
for a public offering of the Registrable Securities the
reasonably anticipated aggregate price to the public of
which, net of underwriting discount and commission, would
exceed $100,000, the Company shall use its best efforts to
cause such Registrable Securities to be registered for the
offering on such form and to cause such Registrable
Securities to be qualified in Colorado; provided, however,
that the Company shall not be required to effect more than
one registration pursuant to previous Section 5 in any six
month period or in excess of one registration under this
Section 6. The substantive provisions of Section 4(b) shall
be applicable to each registration initiated under this
Section 6. Provided, however, that the Company shall not be
obligated to take any action to effect any such
registration, qualification or compliance pursuant to this
Section 6 prior to September 30, 1995.
7. Limitations on Subsequent Registration Rights. From
and after September 30, 1995, the Company shall not enter
into any agreement granting any holder or prospective holder
of any securities of the Company registration rights with
respect to such securities unless (i) such new registration
rights, including standoff obligations, are on a pari passu
basis with those rights of the Holder hereunder; or (ii)
such new registration rights, including standoff obligations
are subordinated to the registration rights granted Holder
hereunder.
8. Expenses of Registration.
(a) All Registration Expenses incurred pursuant to Sections
4 and 5 will be borne by the Company. Unless otherwise
stated, all Selling Expenses relating to securities
registered on behalf of the Holder shall be borne by the
Holder of such securities pro rata on the basis of the
number of shares so registered.
9. Registration Procedures. In the case of each
registration, qualification or compliance effected by the
Company pursuant hereto, the Company will keep Holder
advised in writing as to the initiation of each
registration, qualification and compliance and as to the
completion thereof. The Company will:
(a) Prepare and file with the Commission a registration
statement with respect to such securities and use its best
efforts to cause such registration statement to become and
remain effective for at least 12 months, and prepare and
file with the Commission such amendments to such
registration statement and supplements to the prospectus
contained therein as may be necessary to keep such
registration statement effective for at least 12 months;
(b) Enter into a written underwriting agreement in
customary form and substance reasonably satisfactory to the
Company, and the managing underwriter or underwriters of the
public offering of such securities, if the offering is to be
underwritten in whole or in part;
(c) Furnish to the Holder participating in such
registration and to the underwriters of the securities being
registered such reasonable number of copies of the
registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public
offering of such securities;
(d) Use its best efforts to register or qualify the
securities covered by such registration statement under such
state securities or blue sky laws of Colorado.
(e) Notify the Holder (or if Holder has appointed an
attorney-in-fact, such attorney-in-fact) participating in
such registration, promptly after it shall receive notice
thereof, of the time when such registration statement has
become effective or a supplement to any prospectus forming a
part of such registration statement has been filed;
(f) Notify Holder or their attorney-in-fact promptly of any
request by the Commission for the amending or supplementing
of such registration statement or prospectus or for
additional information;
(g) Prepare and file with the Commission promptly upon the
request of Holder, any amendments or supplements to such
registration statement or prospectus which, in the
reasonable opinion of counsel for Holder, is required under
the Securities Act or the rules and regulations thereunder
in connection with the distribution of the Registrable
Securities by Holder within the time frame in Subsection (a)
above;
(h) Prepare and promptly file with the Commission, and
promptly notify Holder or their attorney-in-fact of the
filing of, such amendment or supplement to such registration
statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus
relating to such securities is required to be delivered
under the Securities Act, any event has occurred as the
result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein not misleading in light of
the circumstances in which they were made;
(I) Advise Holder or their attorney-in-fact, promptly after
it shall receive notice knowledge thereof, of the issuance
of any stop order by the Commission suspending the
effectiveness of such registration statement or the
initiation or threatening of any proceeding for the purpose
and promptly use its best efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop
order should be issued; and
(j) At the request of Holder, furnish on the effective date
of the registration statement and, if such registration
includes an underwritten public offering, at the closing
provided for in the underwriting agreement, (i) to the
extent the counsel for the Company is willing to render an
opinion, dated each such date, of the counsel representing
the Company for the purposes of such registration, addressed
to the underwriters, if any, and to the Holder, covering
such matters with respect to the registration statement, the
prospectus and each amendment or supplement thereto,
proceedings under state and federal securities laws, other
matters relating to the Company, the securities being
registered and the offer and sale of such securities as are
customarily the subject of opinions of issuer's counsel
provided to underwriters in underwritten public offerings,
and (ii) to the extent the Company's accounting firm is
willing to do so, a letter dated each such date, from the
independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the Holder,
stating that they are independent certified public
accountants within the meaning of the Securities Act and
that in the opinion of such accountants the financial
statements and other financial data of the Company included
in the registration statement or the prospectus or any
amendment or supplement thereto comply in all material
respects either the applicable accounting requirements of
the Securities Act, and additional covering such other
financial matters, including information as to the period
ending not more than five business days prior to the date to
such letter with respect to the registration statement and
prospectus, as the underwriters or such requesting Holder
any reasonably request.
10. Information by Holder. The Holder of Registrable
Securities included in any registration shall furnish the
Company such information regarding such Holder, the
Registrable Securities held by them and the distribution
proposed by Holder as the Company may request in writing and
as shall be required in connection with any registration,
qualification or compliance referred to herein.
11. Indemnification.
(a) The Company will indemnify Holder, each of its
officers, directors, partners, employees, agents and each
person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration
qualification or compliance has been effected pursuant
hereto, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of
the Securities Act, against all expenses, claims, losses,
damages or liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based
on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement,
prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the
Company of the Securities Act or any rule or regulation
promulgated under the Securities Act applicable to the
Company in connection with any such registration,
qualification or compliance, and the Company will reimburse
each such Holder, each of its officers, directors, partners,
employees, agents and each person controlling such Holder,
each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with
written information furnished to the Company by an
instrument duly executed by such Holder, controlling person
or underwriter and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such
registration, qualification or compliance is being effected,
indemnify the Company, each of its directors and officers
employees and agents, each underwriter, if any, of the
Company's securities covered by such a registration
statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its
officers, directors, partners, employees, agents and each
person controlling such Holder within the meaning of Section
15 of the Securities Act, against all claims, losses,
damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or
other document, 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 will reimburse the Company, such Holder, such directors,
officers, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement,
prospectus, offering circular or other document in reliance
upon and in conformity with written information furnished to
the Company by an instrument duly executed by such Holder
and stated to be specifically for use therein.
(c) Each party entitled to indemnification under this
Section 11 (the Indemnified Party) shall give notice to the
party required to provide indemnification (the Indemnifying
Party) promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such party's
expense, and provided further that the failure of any
Indemnified Party to give notice as provided hereinshall not
relieve the Indemnifying Party of its obligations herein
unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend
such action and provided further, that the Indemnifying
Party shall not assume the defense for matters as to which
there is a conflict of interest or separate and different
defenses. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter
into any settlement which 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 to such claim or litigation.
12. Governing Law. This Agreement shall be governed in all
respects by the internal laws of the State of Colorado.
13. Survival. The representations, warranties, convenants
and agreements made herein shall survive the transactions
contemplated hereby.
14. Successors and Assigns. The provisions hereof shall be
binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto.
15. Amendment. Except as expressly provided herein,
neither this Agreement nor any term hereof may be amended,
waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of
any amendment, waiver, discharge or termination is sought.
The Foregoing Agreement is hereby executed as of the date
first above written.
COMPANY
GOLD CAPITAL CORPORATION
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
HOLDER
TONKIN SPRINGS VENTURE LIMITED PARTNERSHIP
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President, Tonkin Springs Gold
Mining Company, General Partner and Manager