EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (THIS "AGREEMENT"), dated as of August
19, 2004 by and between SinoFresh HealthCare, Inc., a Florida corporation (the
"Company"), and Xxxx Xxxxx (the "Holder.")
WHEREAS, the Company has agreed to issue to Holder Fifty Thousand (50,000)
shares (the "Common Stock Shares") of its common stock, no par value per share
(the "Common Stock"), in payment for certain services provided; and
WHEREAS, the Company has agreed to enter into this Agreement and grant to
the Holder the registration rights herein.
NOW, THEREFORE, in consideration of the premises, promises and the mutual
covenants contained herein, the Company and Holder hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean the date the Company executes this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Registrable Stock" shall mean the Common Stock Shares issued in
connection with the Services Agreement, excluding Common Stock Shares: (a) which
have been registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance with the
registration statement covering them; or (b) which could be, in the opinion of
counsel to the Company, publicly sold as of the date in question pursuant to
Rule 144 under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. Registration Rights.
(a) "Piggyback Registration". If the Company at any time or from
time to time proposes to register any of its Common Stock under the Securities
Act (other than in connection with: (i) a registration on Form S-4 pertaining to
a merger or similar transaction; or (ii) registration on Form S-8, or similar
forms) the Company shall request that the managing underwriter (if any) of such
underwritten offering include the Registrable Stock in the registration
statement for the underwritten offering in such registration. If such managing
underwriter agrees to include the Remittable Stock in the registration statement
relating to the underwritten offering, the Company shall at such time give
prompt written notice to the Holder of its intention to effect such registration
and of such Holder's right under such proposed registration, and upon the
request of the Holder delivered to the Company within ten (10) days after giving
such notice (which
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request shall specify the Registrable Stock intended to be disposed of by the
Holder), the Company shall use its reasonable best efforts to include such
Registrable Stock held by the Holder requested to be included in such
registration; provided, however, that:
(i) if the managing underwriter in such underwritten offering
shall advise the Company that it declines to include a portion or all of the
Registrable Stock requested by the Holder to be included in the registration
statement, then distribution of all or a specified portion of the Registrable
Stock shall be excluded from such registration statement (in case of an
exclusion as to a portion of the Registrable Stock, such portion to be excluded
shall be allocated among the Holder and any affiliates of the Company including
securities to be registered in such underwritten offering in proportion to the
respective number of Registrable Stock and other securities requested to be
registered by the Holder and affiliates). In such event the Company shall give
the Holder prompt notice of the number of Registrable Stock excluded from such
registration at the request of the managing underwriter. No such exclusion shall
reduce the securities being offered by the Company for its own account to be
included in such registration statement;
(ii) the Company may, in its sole discretion and without the
consent of the Holder, delay the filing or effectiveness of the registration
statement or withdraw such registration statement and abandon the proposed
offering in which the Holder had requested to participate, but any abandonment
shall not preclude subsequent request for registration pursuant to this Section
2 (a).
(b) Option to Include Registrable Stock in Offering. The Holder,
subject to the provisions of Section 2(a), shall have the option to include any
of the Holder's Registrable Stock in the registration statement. The Company
shall not be required to include the Holder's Registrable Stock in the
registration statement relating to an underwritten offering of the Company's
securities unless the Holder accepts the terms of the underwriting as agreed
upon between the Company and the underwriters selected by it (provided such
terms are usual and customary for selling stockholders) and the Holder agrees to
execute and/or deliver such documents in connection with such registration as
the Company or the managing underwriter may reasonably request.
(c) Cooperation with Company. The Holder will cooperate with the
Company in all respects in connection with this Agreement, including, timely
supplying all information reasonably requested by the Company and executing and
returning all documents reasonably requested in connection with the registration
and sale of the Registrable Stock.
3. Registration Procedures.
(a) In connection with any registration under Section 2(a) hereof,
the Company agrees as follows:
(i) use its reasonable best efforts to cause such registration
statement to become effective and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided).
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
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therewith as may be necessary to keep such registration statement effective for
the period specified in Section 3(a) and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all Registrable
Stock covered by such registration statement in accordance with the sellers'
intended method of disposition set forth in such registration statement for such
period;
(iii) furnish to each seller of Registrable Stock such numbers
of copies of a summary prospectus or other prospectus, including a preliminary
prospectus or any amendment or supplement to any prospectus, in conformity with
the requirements of the Securities Act, and such other documents, as such
persons may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Stock covered by such registration statement;
(iv) use its reasonable best efforts to register and qualify
the Registrable Stock covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the sellers of the
Registrable Stock or, in the case of an underwritten public offering, the
managing underwriter, reasonably shall request, and do any and all other acts
and things which may be necessary or advisable to enable such seller of
Registrable Stock to consummate the public sale or other disposition in such
jurisdictions of the Registrable Stock owned by such seller, except that the
Company shall not for any such purpose be required to: (i) qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service of process or be
subject to any escrow or other similar conditions; or (ii) take any other
actions or submit itself or its directors or officers to any restrictions,
obligations or burdens having a material adverse economic effect on it or them;
(v) use its reasonable best efforts to list or cause to be
quoted such securities on any securities exchange or national quotation service
on which any securities of the Company are then listed or quoted, if the listing
or quotation of such securities is then permitted under the rules of such
exchange or national quotation service;
(vi) enter into and perform its obligations under an
underwriting agreement, if the offering is an underwritten offering, in usual
and customary form, with the managing underwriter or underwriters of such
underwritten offering; and
(vii) notify each seller of Registrable Stock and each
underwriter under such registration statement, if any, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which it has knowledge 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
not misleading in the light of the circumstances then existing.
(b) For purposes of Sections 3(a) and 3(b) hereof, the period of
distribution of Registrable Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Registrable Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Registrable Stock
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covered thereby or 30 days (or such other amount of time as determined by the
Company in its sole discretion).
(c) The Holder will cooperate with the Company in all respects in
connection with this Agreement, including, timely supplying of all information
reasonably requested by the Company and executing and returning all documents
reasonably requested in connection with the registration and sale of the
Registrable Stock.
4. Expiration of Registration Rights. The obligations of the Company to register
shares of the Registrable Stock under Section 2 of this Agreement, shall
terminate two (2) years after the Effective Date, unless such obligations
terminate earlier in accordance with the terms of this Agreement.
5. Expenses. All expenses incurred by the Company in complying with the
provisions of this Agreement, including, without limitation, all filing fees,
printing expenses, fees and disbursements of Company counsel and independent
public accounts for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., fees of transfer
agents and registrars and costs of issuance, but excluding any Selling Expenses
and expenses of counsel for any Holder of the Registrable Stock, are called
"Registration Expenses." All underwriting discounts, selling commissions and
underwriter expense reimbursement allowances applicable to the sale of
Registrable Stock, any stock transfer taxes incurred with respect to the sale of
Registrable Stock, as well as all fees and expenses of Holder's legal counsel
and other advisors, are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration of Registrable Stock pursuant to the provisions of this Agreement.
All Selling Expenses in connection with each such registration statement shall
be borne by the Holder.
6. Indemnification. In the event any Registrable Stock are included in a
registration statement pursuant to this Agreement:
(a) Company Indemnity. To the extent permitted by law, the Company
shall indemnify and hold harmless the Holder thereunder, its officers and
directors, each underwriter of such Registrable Stock thereunder and each other
person, if any, who controls such Holder or underwriter within the meaning of
the Securities Act, against any losses, claims, damages, liabilities or expenses
to which they may become subject under the Securities Act or other federal or
state law, insofar as such losses, claims, damages, liabilities, or expenses (or
actions in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto; (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 they were made, not misleading, and the Company shall reimburse the
Holder, each such underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, expense or action; provided,
however, that the Company shall not be liable in any such case if and to the
extent that any such loss, claim, damage, liability, expense or action arises
out of or is based upon: (i) an untrue statement or
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alleged untrue statement or omission or alleged omission so made in conformity
with information furnished by any such Holder, any such underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus; or (ii) such Holder's failure to deliver a copy of the
final prospectus as then amended or supplemented after the Company has furnished
such Holder with a sufficient number of copies of the same, but only if delivery
of same is required by law and the same would have cured the defect giving rise
to any such loss, claim, damage, liability, expense or action.
(b) Holder Indemnity. In the event of a registration of any of
Holder's Registrable Stock under the Securities Act pursuant to the provisions
of this Agreement, the Holder shall 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 contained therein) and the Holder will indemnify and hold harmless to
the extent permitted by law, the Company, each person, if any, who controls the
Company within the meaning of the Securities Act, each officer and director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages,
liabilities or expenses to which the Company or such officer, director,
underwriter or controlling person may become subject under the Securities Act or
other-wise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon any statements or
information provided by the Holder to the Company or underwriter in connection
with the offer and sale of Registrable Stock. Notwithstanding the foregoing, the
amount Holder shall be obligated to indemnify pursuant to this Agreement shall
be limited to an amount equal to the proceeds received by Holder of the
Registrable Stock sold pursuant to the registration statement which gives rise
to such obligation to indemnify.
(c) Notice; Right to Defend. 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 or investigation or threat thereof made in writing for
which such person will claim indemnification or contribution pursuant to this
Agreement and, unless in the reasonable judgment of such indemnified party a
conflict of interest may exist between such indemnified party and the
indemnifying party, shall 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, it will not be obligated to pay the fees and expenses of more than
one counsel for the indemnified party with respect to such claim. The
indemnifying party will not be subject to any liability for any settlement made
without its consent. Failure of notice by a seller of Registrable Stock entitled
to indemnification hereunder will not relieve the Company of its obligations
under this Section 6 unless the Company is actually prejudiced thereby.
(d) Contribution. If the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party
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on the other hand in connection with the statements or omissions which resulted
in such loss, liability, claim, damage or expense as well as any other relevant
equitable considerations. The relevant fault of the indemnifying party and the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Survival of Indemnity, The indemnification provided by this
Agreement shall be a continuing right to indemnification and shall survive the
registration and sale of any Registrable Stock by any person entitled to
indemnification hereunder and the expiration or termination of this Agreement.
8. Assignment of Registration Rights. The rights of the Holder under this
Agreement, including the rights to cause the Company to register Registrable
Stock may not be assigned without the written prior consent of the Company. In
the event of any transfer, the transfer will only be permitted if the transferee
agrees to be bound by the provisions of this Agreement.
9. Notices.
(a) All communications under this Agreement shall be in writing and
shall be mailed by certified mail return receipt requested, postage prepaid, or
telegraphed or telexed with confirmation of receipt or delivered by hand or by
overnight delivery service,
(i) If to the Company, at:
SinoFresh HealthCare, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Chief Executive Officer
or at such other address as it may have furnished in writing to the Holder of
Registrable Stock at the time outstanding, or
(ii) if to the Holder of any Registrable Stock, to the address
of such Holder as it appears in the stock ledger of the Company.
(b) Any notice so addressed, when mailed by certified mail return
receipt requested shall be deemed to be given three days after so mailed, when
telegraphed or telexed shall be deemed to be given when transmitted, or when
delivered by hand or overnight delivery service shall be deemed to be given when
delivered.
10. Successors and Assigns. Except as otherwise expressly provided herein, this
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the Company and the Holder.
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11. Amendment, Waiver and Termination. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of the Company and the Holder.
12. Counterparts. One or more counterparts of this Agreement may be signed by
the parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Florida, without giving effect to
conflicts of law principles.
14. Invalidity of Provisions. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
15. Headings. The headings in this Agreement are for convenience of reference
only and shall not be deemed to alter or affect the meaning or interpretation of
any provisions hereof.
16. Entire Agreement. This Agreement expresses the entire understanding of the
company and the Holder with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements and undertakings of the Company and the
Holder with respect to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective
as of the day and year first above written.
SINOFRESH HEALTHCARE, INC.
By: /s/ Xxxxxxx Xxxx /s/ Xxxx Xxxxx
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Name: Xxxxxxx Xxxx Xxxx Xxxxx
Position: Chairman and CEO
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