EXHIBIT 4.7
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
September 7, 2001 between Capital Environmental Resource Inc., a corporation
incorporated under the laws of the Province of Ontario (the "Company"), and the
parties identified as Investors on Schedule A hereto (each individually an
"Investor" and collectively the "Investors").
WHEREAS, the Company and the Investors have entered into that certain
Subscription Agreement, dated as of July 27, 2001 (the "Subscription
Agreement"), pursuant to which the Company is issuing and selling to the
Investors an aggregate of 16,500,000 shares of its Common Stock for a purchase
price of US $2.00 per share;
WHEREAS, the execution and delivery of this Agreement is a condition to the
closing of the Subscription Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Common Shares" means shares of Common Stock of the Company
owned by an Investor or any assignee thereof in accordance with Section 11
hereof.
(b) "Common Stock" means the common stock of the Company.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(d) "Holder" means any Person owning or having the right to
acquire Registrable Securities, or any assignee thereof in accordance with
Section 11 hereof.
(e) "Initiating Holders" means the Holder(s) initiating a
registration request under Section 2(a) hereof.
(f) "Investor Request" means a request from Holders that in the
aggregate beneficially own at least twenty-five percent (25%) of the Registrable
Securities outstanding as of the date of such request that the Company file a
registration statement under the Securities Act with respect to the Registrable
Securities.
(g) "majority in interest of the Initiating Holders" means
Initiating Holders holding a majority of the Registrable Securities held by all
Initiating Holders.
(h) "Person" means any individual, partnership, limited liability
company, joint venture, corporation, association, trust or any other entity or
organization.
(i) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(j) "Registrable Securities" means (1) any shares of Common Stock
acquired by the Investors pursuant to the Subscription Agreement, and (2) any
shares of Common Stock issued to the Investors (or any assignee thereof in
accordance with Section 11) as a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Common Stock; PROVIDED, HOWEVER,
that any Registrable Securities sold by an Investor in a transaction in which
such Investor's rights under this Agreement are not assigned pursuant to Section
11 below shall cease to be Registrable Securities from and after the time of
such sale. In addition, any shares of Common Stock shall cease to be Registrable
Securities from and after such time as they are sold to the public in a
registered public offering or pursuant to Rule 144 under the Securities Act.
(k) "SEC" means the United States Securities and Exchange
Commission.
(l) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(m) "Violation" means any of the following statements, omissions
or violations: (i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement filed pursuant to this
Agreement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents filed under
state securities or "blue sky" laws in connection therewith, or (ii) the
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 under which such statements were made, not misleading.
2. REQUEST FOR REGISTRATION.
(a) If the Company shall receive a written Investor Request after
September 7, 2002, then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request to all Holders and, subject to the
limitations of Section 2(c) below, file (as expeditiously as practicable, and in
any event within sixty (60) days after the receipt of such request) and use its
best efforts to have declared effective a registration statement under the
Securities Act on any applicable form as the Initiating Holders may reasonably
request (which may include a "shelf" registration statement for use in
connection with a delayed or continuous offering under Rule 415 promulgated
under the Securities Act, provided that the Company, at its option, may use a
Form S-3 or F-3 for such purpose so long as it is eligible to use such a form)
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with respect to all Registrable Securities which the Holders request to be
registered by the giving of notice to the Company within thirty (30) days after
the mailing of the Company's notice referred to above, each such notice to be
given in accordance with Section 18 below.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2 and the Company shall include such information in the written
notice referred to in Section 2(a). In the event of an underwritten offering,
the right of any Holder to include such Holder's Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in Section 4(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters so
selected for such underwriting by a majority in interest of the Initiating
Holders; PROVIDED, HOWEVER, that no Holder shall be required to make any
representations, warranties or indemnities except as they relate to such
Holder's ownership of shares and authority to enter into the underwriting
agreement and to such Holder's intended method of distribution, and the
liability of such Holder (whether by indemnification, contribution or otherwise)
shall be limited to an amount equal to the net proceeds from the offering
received by such Holder. Notwithstanding any other provision of this Section 2,
if the underwriter advises the Initiating Holders that marketing factors require
a limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise the Company and the Company shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated as follows: (i) first, among the Holders of
Registrable Securities that have elected to participate in such underwritten
offering, in proportion (as nearly as practicable) to the amount of Registrable
Securities requested by such Holders to be included in such offering in
accordance with Section 2(a) until such Holders have included in the
underwriting all shares requested by such Holders to be included and (ii)
thereafter among any other holders of Common Stock who have exercised their
piggyback registration rights, if permitted hereunder, with respect to such
registration.
(c) The Company shall be obligated to effect only four (4)
registrations pursuant to an Investor Request under this Section 2 PROVIDED,
HOWEVER, that the Company shall not be obligated to effect more than one (1)
registration pursuant to this Section 2 in any six (6) month period. The Company
shall be obligated to cause any registration required to be effected pursuant to
this Section 2(c) to become and remain effective throughout the proposed plan of
distribution or for a period of six months, whichever is shorter. The Company
shall not be required to pay for any expenses of any registration proceeding
begun pursuant to this Section 2 if the registration request is subsequently
withdrawn at the request of a majority in interest of the Initiating Holders (in
which case all Initiating Holders shall bear such expenses pro rata based upon
the number of Registrable Securities that were requested to be registered in the
withdrawn registration by the Initiating Holders); PROVIDED, HOWEVER, that if at
the time of such withdrawal, the Initiating Holders have learned of a material
adverse change in the condition, business, or prospects of the Company different
from that known to the Initiating Holders at
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the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Company shall pay all such expenses, the Initiating Holders shall not
be required to pay any of such expenses, and the Initiating Holders shall retain
their rights pursuant to this Section 2.
(d) Notwithstanding the foregoing, if the Company shall furnish
to the Initiating Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for up to sixty (60) days after receipt of the request of the
Initiating Holders; PROVIDED, HOWEVER, that the Company may not utilize this
right for more than an aggregate of one hundred twenty (120) days in any twelve
(12) month period; PROVIDED, FURTHER, that if at the time of any Investor
Request for a registration pursuant to this Section 2, the Company has fixed
plans (following a resolution of the Board of Directors of the Company so
authorizing) to file within sixty (60) days after such request a registration
statement covering the sale of any of its securities in a public offering under
the Securities Act, no registration shall be required to be initiated pursuant
to this Section 2 until one hundred twenty (120) days after the effective date
of such Company registration unless the Company is no longer proceeding
diligently to effect such registration and so long as the Company shall provide
the Holders with the right to participate in such public offering pursuant to,
and subject to, Section 3.
(e) Upon the request of a majority of the Initiating Holders for
the termination of a registration, the Company shall terminate such registration
and such registration shall not be considered one of the four (4) registrations
required under Section 2(c); provided, that the Initiating Holders pay the
expenses of such registration in accordance with Section 2(c) unless excused
from doing so under the proviso set forth in Section 2(c).
3. COMPANY REGISTRATION.
(a) If (but without any obligation to do so) the Company proposes
to register (including for this purpose a registration effected by the Company
for stockholders other than Holders of Registrable Securities) any of its Common
Stock under the Securities Act in connection with the public offering of such
Common Stock for cash (other than a registration on Form S-8 (or similar or
successor form) relating to the sale of securities to participants in a Company
stock plan or to other compensatory arrangements to the extent includable on
Form S-8 (or similar or successor form), or a registration on Form F-4 or Form
S-4 (or similar or successor form)), the Company shall, at such time and in any
event at least twenty (20) days prior to the first filing of the registration
statement, promptly give each Holder written notice of such registration. Upon
the written request of any Holder given within twenty (20) days after mailing of
such notice by the Company in accordance with Section 18, the Company shall use
its best efforts to cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered,
subject to the provisions of Section 8 hereof. The Company shall have no
obligation under this Section 3 to make any offering of its securities, or to
complete an offering of its securities that it proposes to make.
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(b) If (but without any obligation to do so) the Company proposes
to file a prospectus or otherwise qualify (including for this purpose a filing
or qualification effected by the Company for stockholders other than Holders of
Registrable Securities) any of its Common Stock for offering to the public in
any province of Canada, then any Holder who would have a registration right in
accordance with Section 3(a) if those provisions were to become operative shall
have rights similar to those granted in Section 3 (a) hereof in respect of any
prospectus filed by the Company with the securities regulatory authorities of
one or more provinces or territories of Canada in connection with the
qualification by prospectus of any of the Company's securities for distribution
to the public in any such Canadian jurisdictions, with any adjustments as may be
necessary to achieve the results intended by Section 3 (a) hereof and all
related provisions of this Agreement in the context of a sale of Registrable
Securities in Canada made in compliance with applicable Canadian securities
laws; it being understood that the Company shall comply with the provisions of
Section 4 and the other provisions hereof in connection with such offering,
adjusted as necessary in the context of a sale of Registrable Securities in any
province or territory of Canada made in compliance with applicable Canadian
securities laws.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective promptly, and, upon the request of
the Holders of a majority of the Registrable Securities being registered
thereunder, keep such registration statement effective for up to six (6) months
or until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); provided that before filing such
registration statement or any amendments thereto, the Company will furnish to
the Holders copies of all such registration statements or amendments thereto
proposed to be filed.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement 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.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case without exhibits unless requested by such Holders), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as any of the
Holders may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "blue sky"
laws of such states or
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jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
(i) to qualify to do business in any state or jurisdiction where it would not
otherwise be required to qualify but for the requirements of this clause (d), or
(ii) to file a general consent to service of process in any such state or
jurisdiction.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading.
(g) Notify each Holder of Registrable Securities covered by such
registration statement and such Holder's underwriters, if any, and confirm such
advice in writing: (i) when the registration statement has become effective,
(ii) when any post-effective amendment to the registration statement becomes
effective and (iii) of any request by the SEC for any amendment or supplement to
the registration statement or prospectus or for additional information.
(h) Notify each Holder of Registrable Securities if at any time
the SEC should institute or threaten to institute any proceedings for the
purpose of issuing, or should issue, a stop order suspending the effectiveness
of the Registration Statement. Upon the occurrence of any of the events
mentioned in the preceding sentence, the Company will use its reasonable best
efforts to prevent the issuance of any such stop order or to obtain the
withdrawal thereof as soon as possible. The Company will advise each Holder of
Registrable Securities promptly of any order or communication of any public
board or body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.
(i) in the case of an offering that is an underwritten public
offering, (x) cause to be delivered an opinion of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the Holders and the underwriters, and (y) cause to be delivered, on the date
that the registration statement with respect to such securities becomes
effective, a "comfort" letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to the underwriters, addressed to
the underwriters, and, a reaffirmation of such letter on the date that such
Registrable Securities are delivered to the underwriters for sale.
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(j) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earnings statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
(k) List the Registrable Securities which are registered pursuant
to Section 2 or Section 3 on each national securities exchange or automated
quotation system upon which the shares to be registered are traded.
5. AMENDMENTS, SUPPLEMENTS TO PROSPECTUS. Immediately upon receipt of a
notice referred to in Section 4(f) hereof, each Holder agrees to (i) cease
making sales of securities pursuant to any then effective registration statement
or any prospectus contained therein until it has received from the Company an
amendment or supplement to the registration statement or prospectus and (ii) to
promptly deliver to the Company any copies of the registration statement or such
prospectus then in its possession.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall promptly furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
7. EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including (without limitation) all
registration, filing and qualification fees, printers' fees, fees and expenses
of counsel and accountants for the Company and the reasonable fees and
disbursements of one firm of counsel for the selling Holders, shall be borne by
the Company, even if such registrations, filings, or qualifications do not
become effective, subject to Section 2(c).
8. UNDERWRITING REQUIREMENTS. In connection with any underwritten offering
initiated by the Company or any stockholder other than a Holder of Registrable
Securities, the Company shall not be required under Section 3 to include any
Holder's securities in such underwriting unless such Holder accepts the terms of
the underwriting as agreed upon between the Company or such stockholder and the
underwriters selected by the Company or such stockholder; PROVIDED, HOWEVER,
that no Holder participating in such underwriting shall be required to make any
representations, warranties or indemnities except as they relate to such
Holder's ownership of shares and authority to enter into the underwriting
agreement and to such Holder's intended method of distribution, and the
liability of such Holder (whether by indemnification, contribution or otherwise)
shall be limited to an amount equal to the net proceeds from the offering
received by such Holder. If a Holder complies with the requirements set forth in
this Section 8, then such Holder shall have the right to be included in any
underwritten offering by the Company, whether initiated by the Company or any
stockholder,
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subject to the terms of Section 3 and to the limitations set forth below in this
Section 8. If the total number of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the largest
number of securities that the underwriters reasonably believe can be sold
without having an adverse effect on such offering, then the Company shall be
required to include in the offering only that number of such securities,
including Registrable Securities, which the underwriters believe will not have
an adverse effect on such offering. The securities included in such offering
shall be allocated as follows: (i) first, the securities that the Company or any
stockholders initiating the offering propose to sell, (ii) second, if any, other
securities required to be registered pursuant to agreements entered into prior
to the date of this Agreement which by their terms state that the signatories
thereof have priority in the event of such cutbacks over all beneficiaries under
subsequent registration rights agreements, (iii) third, among all Holders of
Registrable Securities that have elected to participate in such underwritten
offering, and other holders of Common Stock who are signatories to agreements
entered into prior to the date of this Agreement which, by their terms, give
such other holders priority equal to that of the Holders, in proportion (as
nearly as practicable) to the amount of Registrable Securities and Common Stock,
respectively, owned by such holders until such holders have included in the
underwriting all shares requested by such holders to be included, and (iv)
thereafter among any other holders of Common Stock who have exercised their
piggyback registration rights, if permitted hereunder, with respect to such
registration.
9. INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, its
heirs, personal representatives and assigns, each of such Holder's officers,
directors, partners, employees and affiliates, any underwriter (as defined in
the Securities Act) for such Holder and each Person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal, state, Canadian, or provincial securities law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon a Violation; and the Company will pay to each such
indemnified party, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 9(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case to a particular
indemnified party for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such indemnified party.
(b) Each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers, each Person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder (and any affiliate thereof)
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selling securities in such registration statement and any controlling Person of
any such underwriter or other Holder, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing Persons may become
subject, under the Securities Act, the Exchange Act or other federal. state,
Canadian, or provincial securities law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any Person intended to be indemnified pursuant to this
Section 9(b), in connection with investigating or defending any such loss,
claim, damage, liability, or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 9(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; PROVIDED, FURTHER, that in no event shall the
liability of any Holder under this Section 9(b) or otherwise in connection with
the offering exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party shall
have the right to retain its own counsel (but no more than one separate counsel,
plus any required local counsel, with respect to all indemnified parties) with
the fees and expenses to be paid by the indemnifying party, if in the reasonable
opinion of counsel to an indemnified party, representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential conflicts of interests between, or different defenses
available to, such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Section 9 except if, and only to the extent that,
the indemnifying party is actually prejudiced thereby.
(d) The obligations of the Company and Holders under this Section
9 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
(e) Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a
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result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, then, in lieu of indemnifying such indemnified party,
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other but also the relative fault of the indemnifying party and the
indemnified party 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 or
on behalf of the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. 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. Notwithstanding anything to the contrary in this
Section 9, no Holder shall be required, pursuant to this Section 9 or otherwise
in connection with the offering, to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Common Stock in
the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Holders the benefits of Rule 144 under the Securities Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) remain registered under the Exchange Act and file with the
SEC in a timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without
registration.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned in
whole or in part to any Person acquiring Registrable Securities from a Holder in
compliance with the applicable provisions of any relevant agreement between such
Holder and the Company, provided that such transferee or
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assignee delivers to the Company a written instrument by which such transferee
or assignee agrees to be bound by the obligations imposed on Holders under this
Agreement to the same extent as if such transferee or assignee was a party
hereto.
12. AMENDMENT; WAIVER. Any provision of this Agreement may be amended only
with the written consent of the Company and each of the Holders. The observance
of any provision of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the party to be charged. Any amendment or waiver effected in
accordance with this Section 12 shall be binding upon each Holder of Registrable
Securities at the time outstanding, each future Holder of all such securities,
and the Company.
13. CHANGES IN REGISTRABLE SECURITIES. If, and as often as, there are any
changes in the Registrable Securities by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
14. NO INCONSISTENT AGREEMENTS. The Company represents and warrants that it
has not granted to any Person a presently effective right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Holders herein. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or grant any additional registration
rights to any Person or with respect to any securities which are not Registrable
Securities which are prior in right to, equal in right to or inconsistent with
the rights granted in this Agreement, and any such attempted agreements or
grants shall be null and void and of no effect.
15. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof. Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
16. GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the State of Delaware as such laws are applied to agreements between
Delaware residents entered into and to be performed entirely within Delaware.
17. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns (as provided
in Section 11), heirs, executors and administrators of the parties hereto.
18. NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon receipt by the party to be notified (including by telecopier, receipt
confirmed) or three (3) days after being
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sent by registered or certified mail, postage prepaid and addressed to the party
to be notified (a) if to a party other than the Company, at such party's address
set forth at the end of this Agreement or at such other address as such party
shall have furnished to the Company in writing, or (b) if to the Company, at its
address set forth at the end of this Agreement, or at such other address as the
Company shall have furnished to the parties in writing.
19. SEVERABILITY. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part hereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
20. TITLES AND SUB-TITLES. The titles and sub-titles of the Sections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
21. DELAYS OR OMISSIONS; REMEDIES CUMULATIVE. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to the parties, upon
any breach or default of another party under this Agreement, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character by a party of any breach or default under this
Agreement, or any waiver by a party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to a party, shall be cumulative and
not alternative.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts (including by facsimile), each of which shall be deemed an
original, but all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date first above written.
CAPITAL ENVIRONMENTAL RESOURCE INC.
By:
---------------------------------
Name:
Title:
INVESTOR
By:
---------------------------------
Name:
Title:
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SCHEDULE A
INVESTORS
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