REGISTRATION RIGHTS AGREEMENT DATED AS OF ______ 2006 BY AND BETWEEN ULTITEK, LTD. AND SHAREHOLDER
Exhibit
3.5
DATED
AS OF ______ 2006
BY
AND BETWEEN
ULTITEK,
LTD.
AND
SHAREHOLDER
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
_____ day of May, 2006, by and between ULTITEK, LTD., a corporation organized
and existing under and by virtue of the laws of the State of Nevada (the
“Company”) and the undersigned Shareholder (the “Investor”).
The
Company has agreed to provide the Investor the registration rights with respect
to the Registrable Securities, as defined and set forth in this
Agreement.
The
parties hereby agree as follows:
1. SECURITIES
SUBJECT TO THIS AGREEMENT
(a) DEFINITIONS.
The
term “Registrable Securities” collectively means the Shares of Common Stock
(“Shares”) issued upon the purchase by the Investor of Shares in the Company.
The term “1933 Act” means the Securities Act of 1933, as amended. The term “1934
Act” means the Securities Exchange Act of 1934, as amended. The terms
“register”, “registered”, and “registration” refer to a registration effected by
preparing and filing a registration statement or similar document in compliance
with the 1933 Act, and the declaration or ordering of effectiveness of such
registration statement or document.
(b) RESTRICTED
SECURITIES.
The
Registrable Securities are “restricted securities”, as that term is defined in
Rule 144 promulgated under the 1933 Act (the “Restricted Securities”). For the
purposes of this Agreement, any Registrable Security will cease to be a
Restricted Security when (i) a registration statement covering such Restricted
Security has been declared effective by the United States Securities and
Exchange Commission (the “Commission”), and the Restricted Security has been
disposed of pursuant to such effective registration statement; (ii) it can
be
distributed to the public pursuant to Rule 144 (or any similar provision then
in
force) under the 1933 Act; or (iii) it is exchanged (without additional cost,
expense or tax liability to the Investor) for an identical or substantially
identical security which is or has been registered under the 1933 Act or may
be
sold and disposed of without an effective registration statement under the
1933
Act.
(c) REGISTRABLE
SECURITIES.
As to
any particular Registrable Security, such security will cease to be a
Registrable Security when it ceases to be a Restricted Security.
(d) HOLDERS
OF REGISTRABLE SECURITIES.
A
Person is deemed to be a holder of Registrable Securities whenever such Person
owns Registrable Securities or has a right to acquire such Registrable
Securities, whether or not such acquisition has actually been effected;
PROVIDED, that in no event will any Registrable Security be deemed to be owned
by more than one Person.
(e) STOCK
SPLITS, DIVIDENDS, ETC.
The
provisions of this Agreement shall apply to any shares or other securities
resulting from any stock split or reverse split, stock dividend,
reclassification of the capital stock of the Company, consolidation or
reorganization of the Company, and any shares or other securities of the Company
or of any successor company which may be received by the Investor by virtue
of
its ownership of Registrable Securities.
2. PIGGY-BACK
REGISTRATION
(a) In
the
event that the Company proposes to register any Common Stock under the 1933
Act,
other than pursuant to a registration statement on Forms S-4 or S-8 or any
successor to such Forms, either for its own account or for the purpose of the
sale of Common Stock owned by any present or future holder of Common Stock,
or
any other obligation of the Company to register securities on Form ▇-▇, ▇▇-▇,
▇-▇ or S-3, or any successor to such Forms, the Company shall mail or deliver
to
all holders of Registrable Securities, at least 10 days prior to the filing
with
the SEC of the registration statement covering such Common Stock, a written
notice (a “Registration Notice”) of its intention so to register such Common
Stock.
(b) In
the
event that a Registration Notice shall have been so mailed or delivered, each
holder of Registrable Securities may elect to include in such registration
statement such percentage of its Registrable Securities as equals the percentage
derived by adding all of the shares of Common Stock registered on behalf of
each
of the holders on whose behalf such registration statement is being filed
(excluding the holders of Registrable Securities) and dividing such number
by
the total number of shares of Common Stock owned by such holders (excluding
the
holders of Registrable Securities). To the extent that a holder of Registrable
Securities chooses to include such Registrable Securities as it is entitled
to
include pursuant to the preceding sentence such holder shall mail or deliver
to
the Company, a written notice (a “Supplemental Notice”) (i) specifying the
number of shares of Registrable Securities proposed to be sold or otherwise
transferred by such holder, (ii) describing the proposed manner of sale or
other
transfer thereof under the Securities Act; PROVIDED, HOWEVER, that such
Supplemental Notice shall be so mailed or delivered by such holder not more
than
5 days after the date of delivery to such holder of a Registration
Notice.
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(c) If
the
registration of which the Company gives notice as provided above is for a
registered public offering involving an underwriting, the Company shall so
advise the holders of Registrable Securities as a part of the Registration
Notice given pursuant to this Section 2. In such event the right of any holder
of Registrable Securities to registration pursuant to this Section 2 shall
be
conditioned upon such holder’s participation in such underwriting to the extent
provided herein. All holders of Registrable Securities proposing to distribute
their securities through such underwriting shall (together with the shares
of
Common Stock to be registered by the Company and shares of Common Stock held
by
Persons who by virtue of agreements with the Company are entitled to include
shares in such registration (the “Other
Shareholders”))
enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company. If any holder of
Registrable Securities disapproves of the terms of any such underwriting, it
may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
(d) Notwithstanding
any other provision of this Section 2, if the underwriter determines that
marketing factors require a limitation on the number of shares to be
underwritten, the underwriter may exclude from such registration and
underwriting all of the Registrable Securities which would otherwise be
underwritten pursuant to this Section 2. The Company shall so advise all holders
of securities requesting registration of any limitations on the number of shares
to be underwritten and the number of shares of securities that are entitled
to
be included in the registration, then
the
Company shall be obligated to include in such registration statement only
such
limited portion (which may be none) of the Registrable Securities as the
managing underwriter determines in good faith.
(e) Notwithstanding
the foregoing provisions, the Company may withdraw any registration statement
referred to in this Section 2 without thereby incurring any liability to the
holders of Registrable Securities.
3. HOLDBACK
AGREEMENT
Each
holder of Registrable Securities agrees, if requested by the Company and an
underwriter of Common Stock or other securities of the Company, (i)
not
to lend,
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant
to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
then owned by such holder or are thereafter acquired), or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any
of
the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise, whether in
privately negotiated or open market transactions, any Common Stock or other
securities of the Company held by it during the one hundred eighty
(180) day
period following the effective date of a registration statement. Such agreement
shall be in writing in form and substance satisfactory to the Company and such
underwriter. The Company may impose stop-transfer instructions with respect
to
the shares subject to the foregoing restrictions until the end of the “market
stand-off” period.
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4. REGISTRATION
EXPENSES
All
expenses incident to the Company’s performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees,
all
fees and expenses associated with filings required to be made with the National
Association of Securities Dealers, Inc. (“NASD”) and/or The NASDAQ Stock Market
(“NASDAQ”), as may be required by the rules and regulations of the NASD or
NASDAQ, fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), rating agency fees, printing
expenses (including expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with the Depositary Trust Company
and
of printing prospectuses if the printing of prospectuses is requested by a
holder of Registrable Securities), messenger and delivery expenses, internal
expenses (including, without limitation, all, salaries and expenses of their
officers and employees performing legal or accounting duties), fees and expenses
of counsel for the Company and its independent certified public accountants
(including the expenses of any special audit or “cold comfort” letters required
by or incident to such performance), securities acts liability insurance (if
the
Company elects to obtain such insurance), fees and expenses of other Persons
retained by the Company (all such expenses being herein called “Registration
Expenses”) will be borne by the Company; PROVIDED that in no event shall
Registration Expenses include any underwriting discounts, selling commissions,
stock transfer taxes or fees attributable to the sale of the Registrable
Securities, which shall be borne by the holder of Registrable
Securities.
5. FURTHER
OBLIGATIONS OF THE COMPANY
(a) The
Company shall, as soon as reasonably possible, use its reasonable best efforts
to register and qualify the Registrable Securities covered by any registration
statement described herein under such other securities or “blue sky” laws of
such jurisdictions as shall be reasonably requested by the Investor or in the
case of an underwritten public offering by the managing underwriter, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions unless the Company is already
subject to such service in such jurisdiction and except as may be required
by
the ▇▇▇▇ ▇▇▇.
(b) The
Company shall as soon, as reasonably possible, furnish to the Investor (or
one
broker or agent designated by the Investor) such numbers of copies of a
prospectus in conformity with the requirement of the 1933 Act, and such other
documents as the Investor may reasonably request in order to facilitate the
resale or other disposition of the Registrable Securities owned by
them.
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6. INDEMNIFICATION:
CONTRIBUTION
(a) INDEMNIFICATION
BY THE COMPANY.
The
Company agrees to indemnify, to the extent permitted by law, each holder of
Registrable Securities, its general partners, general partners of the general
partner, limited partners, officers, directors, employees and agents and each
Person who controls such holder (within the meaning of the 1933 Act), against
all losses, damages, liabilities (joint or several) and expenses (including
reasonable costs of investigation and legal expenses) arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in
any
registration statement, prospectus or preliminary prospectus, 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 (in the case of a prospectus or preliminary prospectus, in light of
the
circumstances under which they are made) not misleading, except insofar as
the
same are contained in any information with respect to such holder furnished
in
writing to the Company by such holder expressly for use therein or any violation
by the Company of the 1933 Act, 1934 Act, or the rules promulgated thereunder
that does not result from conduct by the Persons indemnifiable by the Company
under this Section 6(a). The Company also agrees to reimburse each such holder
and each such officer, director, partner and controlling Person for any legal
or
other expenses reasonably incurred by such holder or such officer, director,
partner or controlling person in connection with investigating or defending
any
such loss, damage, liability or action to the extent that the same are not
incurred in connection with the proviso of the preceding sentence.
(b) INDEMNIFICATION
BY HOLDERS OF REGISTRABLE SECURITIES.
In
connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder will furnish to the Company in
writing, such information and affidavits with respect to such holder as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and agrees to indemnify, to the extent permitted by
law,
the Company, the directors, officers, employees, underwriters, other sellers
and
agents and each Person who controls the Company (within the meaning of the
Act),
and any investment advisor thereof or agent therefor against any losses,
damages, liabilities and expenses resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
registration statement or prospectus or any amendment thereof or supplement
thereto or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, to the extent, but only to the extent, that such untrue statement
or
omission is contained in or failed to be contained in any information or
affidavit with respect to such holder so furnished in writing by such holder
specifically for inclusion therein or resulting from the violation of applicable
securities laws by such holder or its agents in connection with the sale of
the
Registrable Securities.
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(c) CONDUCT
OF INDEMNIFICATION PROCEEDINGS.
Any
person entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such person of any written
notice of the commencement of any action, suit, proceeding against such person
or investigation thereof made in writing for which such person will claim
indemnification or contribution pursuant to this Agreement and, unless in the
reasonable judgment of counsel to such indemnified party a conflict of interest
may exist between such indemnified party and the indemnifying party with respect
to such claim which would not permit the same counsel to represent the
indemnifying and indemnified parties, permit the indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to such
indemnified party. If the indemnifying party is not entitled to, or elects
not
to, assume the defense of a claim (including as the result of a conflict of
interest which, in the reasonable judgment of counsel to such indemnified party,
does not permit the same counsel to represent the indemnified and indemnifying
parties), it will not be obligated to pay the fees and expenses of more than
one
counsel with respect to such claim other than counsel to the indemnifying party.
No indemnifying party will be required to 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 of such claim or litigation. The
indemnifying party will not be subject to any liability for any settlement
made
without its consent. The failure of any indemnified party to give such notice
as
provided herein shall not relieve the indemnifying party of its obligations
under this Agreement unless, and only to the extent that, the failure of the
indemnified party to give such notice results in actual harm to the indemnifying
party.
(d) CONTRIBUTION.
If the
indemnification provided for in this Section 6 from the indemnifying party
is
unavailable to an indemnified party hereunder in respect of any losses, damages,
liabilities or expenses referred to therein by reason other than that set forth
in the exception in the first sentence of Section 6(a) hereof and Section 6(b)
hereof, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, liabilities or expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions or inactions which resulted
in such losses, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact,
has
been made by, or relates to information supplied by, such indemnifying party
or
indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 5(c), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
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The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by PRO RATA allocation or by
any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
If
indemnification is available under this Section 6, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in Sections
6(a) and (b) without regard to the relative fault of said indemnifying party
or
indemnified party or any other equitable consideration provided for in this
Section 6(d).
In
the
event that any provision of an indemnification clause in an underwriting
agreement executed by or on behalf of a holder of Registrable Securities differs
from a provision in this Section 6, such provision in the underwriting agreement
shall determine such holder’s rights in respect thereof.
7. PARTICIPATION
IN UNDERWRITTEN REGISTRATIONS.
The
Investor may not participate in any underwritten registration with respect
to
the Registrable Securities unless it (a) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements (including applicable “lock-up” arrangements described in Section 3
of this Agreement) and (b) agrees to pay its pro rata portion of all
underwriting discounts, commissions and fees. Whenever under the preceding
Sections of this Agreement the holders of Registrable Securities are registering
such shares pursuant to any registration statement, each such holder agrees
to
(i) timely provide in writing to the Company, at its request, such information
and materials as the Company may reasonably request in order to effect the
registration of such Registrable Securities in compliance with federal and
applicable state securities laws, and (ii) provide the Company with appropriate
representations with respect to the accuracy of such information provided by
such sellers pursuant to subsection (i).
8. RULE
144
The
Company covenants that it will file the reports required to be filed by it
under
the 1933 Act and the 1934 Act and the rules and regulations adopted by the
SEC
thereunder (or, if it is not required to file such reports, it will make
publicly available such information including information required by Rule
15c2-11 promulgated under the 1934 Act as will enable the holders of Registrable
Securities to sell any Registrable Securities held by them without registration
as described in this Section 8; and it will take such further action to the
extent reasonably required from time to time to enable holders of Registrable
Securities to sell Registrable Securities without registration under the 1933
Act within the limitation of the exemptions provided by (a) Rule 144 under
the
1933 Act, as such Rule may be amended from time to time, or (b) any similar
rule
or regulation hereafter adopted by the SEC. Upon the reasonable request of
any
holder of Registrable Securities, the Company will deliver to such holder a
written statement as to filings made by the Company with the SEC.
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9. MISCELLANEOUS
(a) AMENDMENTS
AND WAIVERS.
Except
as otherwise provided herein, the provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of holders of at least a majority of the then outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
(b) NOTICES.
All
notices and other communications provided for or permitted hereunder shall
be
made by hand delivery, facsimile (with confirmation back), nationally recognized
overnight courier, or registered first-class mail:
(i) if
to a
holder of Registrable Securities, at the most current address, and with a copy
to be sent to each additional address given by such holder to the Company,
in
writing, with a copy to each of such holder’s (i) litigation counsel and (ii)
securities counsel which current information is as follows:
|
(i)
|
if
to the Investor at the most recent address of record by the
Company.
|
With
a
copy to:
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
The
Galleria, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone
#: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
#: (▇▇▇) ▇▇▇-▇▇▇▇
(ii)
if
to the Company at:
Ultitek,
Ltd.
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Roman Price
All
such
notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered, upon receipt if delivered by
facsimile, one-day after delivery to overnight courier priority delivery, or
five Business Days after being deposited in the mail, postage prepaid, if
mailed.
(c) SUCCESSORS
AND ASSIGNS.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of each of the parties hereto.
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(d) 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.
(e) HEADINGS.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(f) GOVERNING
LAW.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada applicable to contracts made and to be performed wholly within
that jurisdiction. The parties hereto agree to submit to the jurisdiction of
the
courts of the State of Nevada in any action or proceeding arising out of or
relating to this Agreement.
(g) SEVERABILITY.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the holders of Registrable
Securities shall be enforceable to the fullest extent permitted by
law.
(h) ENTIRE
AGREEMENT.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Agreement (including the
exhibits and schedules thereto) supersedes all prior agreements, negotiations,
and understandings between the parties with respect to such subject
matter.
(i) ATTORNEYS’
FEES.
In any
action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is successfully asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys’ fees in addition to any
other available remedy.
[SIGNATURES
ON THE FOLLOWING PAGE]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| ULTITEK, LTD. | ||
| |
|
|
| By: | /s/ | |
|
Roman
Price
President
|
||
| INDIVIDUAL INVESTOR(S) | ||
|
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