EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of July 13, 2000, by and between Diversified Product Inspections, Inc.,
a Florida corporation (the "Company"), and Thomson Kernaghan & Co. Limited (the
"Purchaser").
Preliminary Statements
In connection with the consummation of the transactions contemplated by
that certain Common Stock Purchase Agreement (the "Purchase Agreement") of even
date herewith by and between the Company and the Purchaser, the Company has
agreed, upon the terms and subject to the conditions of the Common Stock
Purchase Agreement, to issue and sell to the Purchaser 25,000 shares ( the
"Shares") of the Company's Common Stock (the "Common Stock").
The Company has also agreed, upon the terms and subject to the
conditions of the Purchase Agreement, to issue to the Purchaser a Warrant to
purchase 7,500 shares of Common Stock (the "Purchaser's Warrant") and to issue
to the Agent a Warrant to purchase 5,000 shares of the Common Stock (the
"Agent's Warrant").
The Shares, the Purchaser's Warrant and the Agent's Warrant are
collectively referred to as the "Securities." The Common Stock issuable upon
exercise of the Purchaser's Warrant is called the "Purchaser's Warrant Shares"
and the Common Stock issuable upon exercise of the Agent's Warrant is called the
"Agent's Warrant Shares" (the Purchaser's Warrant Shares and the Agent's Warrant
Shares are sometimes collectively referred to as the "Warrant Shares").
To induce the Purchaser to execute and deliver the Purchase Agreement,
the Company has agreed, pursuant to the terms and conditions of this Agreement,
to provide certain registration rights with respect to the Common Shares, and
the Warrant Shares.
Agreement
In consideration of the foregoing, the mutual covenants and conditions
set forth in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to become legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Agent" shall mean Thomson Kernaghan & Co. Limited.
<PAGE>
"Agent's Warrant" shall have the meaning ascribed to such term in the
Preliminary Statements to this Agreement.
"Agent's Warrant Shares" shall have the meaning ascribed to such term
in the Preliminary Statements to this Agreement.
"Agreement" shall mean this Registration Rights Agreement, made and
entered into as of July 13, 2000, by and between the Company and the Purchaser.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Shares" shall have the meaning ascribed to such term in the
Preliminary Statements to this Agreement.
"Purchase Agreement" shall have the meaning ascribed to such term in
the Preliminary Statements to this Agreement.
"Company" shall mean Diversified Product Inspections, Inc., a Florida
corporation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as in effect from time to time.
"Filing Deadline" shall have the meaning ascribed to such term in
Section 2.1 of this Agreement.
"Holder" or "Holders" shall mean (a) the Purchaser, to the extent that
the Purchaser holds Registrable Securities, and (b) any Person holding
Registrable Securities as a transferee of the Purchaser (directly or indirectly,
including subsequent transfers).
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Purchase Agreement" shall mean, that certain Common Stock Purchase
Agreement, dated as of July 13, 2000, by and between the Company and the
Purchaser.
"Purchaser" shall mean Thomson Kernaghan & Co. Limited, as Agent.
"Purchaser's Warrant" shall have the meaning ascribed to such term in
the Preliminary Statements to this Agreement.
"Purchaser's Warrant Shares" shall have the meaning ascribed to such
term in the Preliminary Statements to this Agreement.
The terms "register," "registered" and "registration" shall refer to a
registration effected by preparing and filing with the Commission one or more
registration statements covering
<PAGE>
Registrable Securities in compliance with the Securities Act that is declared or
ordered effective by the Commission.
"Registrable Securities" shall mean the Common Shares, the Converted
Common Shares, the Purchaser's Warrant Shares and the Agent's Warrant Shares,
and any shares of capital stock issued or issuable with respect to the
Securities, the Purchaser's Warrant Shares or the Agent's Warrant Shares as a
result of any stock split, stock dividend, recapitalization, exchange or similar
event; provided, however, that such securities shall cease to be Registrable
Securities when (a) a registration statement with respect to such securities
shall have been declared effective under the Securities Act and such securities
shall have been disposed of pursuant to the registration statement, (b) such
securities are distributed to the public pursuant to Rule 144(k) (or any
successor provisions) promulgated under the Securities Act or (c) such
securities shall have ceased to be outstanding.
"Registration Deadline" shall have the meaning ascribed to such term in
Section 2.1 of this Agreement.
"Registration Expenses" shall mean all expenses incurred in order to
comply with Article II hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the
Company, reasonable fees and disbursements of one (1) counsel for the Holders,
blue sky fees and expenses, and the expense of any special audits incident to or
required by any such registration, but excluding the compensation of regular
employees of the Company (which shall be paid in any event by the Company) and
excluding Selling Expenses.
"Restricted Securities" shall mean Registrable Securities that are
"restricted securities" as defined in Rule 144 under the Securities Act.
"Securities" shall have the meaning ascribed to such term in the
Preliminary Statements to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as in effect from time to time.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions incurred in connection with the sale of securities pursuant to a
registration effected hereunder.
"Warrant Shares" shall have the meaning ascribed to such term in the
Preliminary Statements to this Agreement.
Capitalized terms used in this Agreement and not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Purchase
Agreements.
ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Mandatory Registration.
<PAGE>
(a) The Company shall prepare and file with the Commission
within ninety (90) days from the date of this Agreement (the "Filing
Deadline") a registration statement or registration statements (as is
necessary) on Form SB-2 or Form S-1 covering (i) the issuance of the
Warrant Shares, and (ii) the resale of all of the Registrable
Securities. Such registration statement shall initially register for
resale at least 100% of the Common Shares, and the Warrant Shares. The
Company shall use its best efforts to have the registration statement
declared effective by the Commission within one hundred and twenty
(120) days after the Filing Deadline (the "Registration Deadline"). The
Company shall permit the registration statement to become effective
within five (5) business days after receipt of a "no review" notice
from the Commission. Such registration statement shall be kept current
and effective for the greater of (i) a period of at least twelve (12)
months from the Closing Date and (ii) a period of at least ninety (90)
days after the Purchaser's Warrant and the Agent's Warrant shall have
been fully exercised or expired. If a registration statement with
respect to the Registrable Securities is not effective on the
Registration Deadline date, the Company agrees to and shall pay a cash
penalty equal to two percent (2%) per month of the aggregate purchase
price of the Registrable Securities, payable monthly and pro-rated for
partial months until the registration statement is effective.
Section 2.2 Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to Section 2.1 shall be borne by the Company; and all Selling Expenses
in connection with such registration, qualification or compliance shall be borne
by the holders of the securities so registered pro rata on the basis of the
number of shares so registered.
Section 2.3 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Article II,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense, the Company will:
(a) prepare and file with the Commission 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;
(b) furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirement of the Securities Act, and such other documents as they may
reasonably request (including a conformed copy of the registration
statement filed with the Commission and any amendments thereto and an
original executed underwriting agreement entered into in connection
with such registration) in order to facilitate the disposition of
Registrable Securities owned by them;
(c) use reasonable efforts to register and qualify the
securities covered by such registration statement under such other
securities or blue sky laws of one (1) jurisdiction (in addition to
those jurisdictions in which the Company has otherwise agreed to so
register and qualify such securities) as shall be reasonably requested
by the Holders, 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;
<PAGE>
(d) in the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement with
the managing underwriter(s) of such offering; each Holder participating
in such underwriting shall also enter into and perform its obligations
under such underwriting agreement;
(e) 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 not
misleading in the light of the circumstances then existing; and
(f) furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Article II, on
the date that such Registrable Securities are delivered to the
underwriters for sale in connection with registration pursuant to this
Article II, if such securities are being sold through underwriters, or
on the date that the registration statement with respect to such
securities becomes effective, if such securities are not being sold
through underwriters, (i) a copy of any opinion, dated such date, of
the counsel representing the Company for the purposes of such
registration, addressed to the underwriters of the Company, and (ii) a
copy of any letter, dated such date, from the independent accountants
of the Company, addressed to the underwriters of the Company.
Each Holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (f) of this Section 2.3, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of a supplemented or amended prospectus and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense), all copies, other
than permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities that was in effect prior to such amendment
or supplement. In the event the Company shall give any such notice, the period
set forth in clause (a) of this Section 2.3 shall be extended by the number of
days during the period from and including the date of the giving of such notice
pursuant to clause (e) of this Section 2.3 to and including the date when each
seller of Registrable Securities covered by such registration statement shall
have received the copies of a supplemented or amended prospectus.
Section 2.4 Indemnification.
(a) The Company will indemnify each Holder, each Holder's
officers, directors and partners, and each Person controlling such
Holder (collectively, "Holder's Parties"), participating in any
registration, qualification, or compliance effected pursuant to this
Article II with respect to Registrable Securities held by such Holder
and each underwriter, if any, and each Person who controls any
underwriter, against all claims, losses, damages and liabilities (or
actions in respect thereof), including any of the
<PAGE>
foregoing incurred in settlement of any litigation, commenced or
threatened, to which they may become subject under the Securities Act,
the Exchange Act or other federal or state law, arising out of or based
on (i) any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other similar
document (including any related registration statement, notification or
the like) 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 not misleading, or (ii) any violation by
the Company of any federal, state or common law rule or regulation
applicable to the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Holder's
Parties each such underwriter, and each Person who controls any such
underwriter, for any legal and any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss,
damage, liability or action, as incurred, 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, made in reliance on and in conformity
with written information furnished to the Company by such Holder's
Parties or underwriter or Person controlling such underwriter
specifically for use in the preparation thereof.
(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, severally and not
jointly, indemnify the Company, each of its directors and officers,
each underwriter, if any, of the Company securities covered by such a
registration statement, and each Person who controls the Company or
such underwriter within the meaning of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on (i) any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other similar 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 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, as
incurred, 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 the
written information furnished to the Company by such Holder
specifically for use in the preparation thereof, or (ii) any violation
by any such Holder of any federal, state or common law rule or
regulation applicable to such Holder in connection with the
distribution of securities pursuant to a registration statement, and
will reimburse the Company, such Holders, such directors, officers,
Persons, underwriters or control Persons for any legal any other
expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability, or action, as
incurred; provided, however, that the obligations of each such Holder
hereunder shall be limited to an amount equal to the aggregate proceeds
received by such Holder in such offering.
(c) Each party entitled to indemnification under this Section
2.4 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has received written
<PAGE>
notice 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). The Indemnified Party may
participate in such defense at such party's expense; provided, however,
that the Indemnifying Party shall bear the expense of such defense of
one counsel representing the Indemnified Party if representation of
both parties by the same counsel would be inappropriate due to actual
or potential conflicts of interest. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.4, except to
the extent such failure to give notice shall materially and adversely
prejudice the Indemnifying Party in the defense of any such claim or
any such litigation. 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
that 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.
(d) (i) If the indemnification provided for in this Section
2.4 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 herein, then
the Indemnifying Party hereunder 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 the Indemnified
Party 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 relative fault of the Indemnifying Party
and of 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' relevant intent, knowledge, access to information and
opportunities to correct or prevent such statement or
omission.
(ii) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 2.4 were
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to above. The amount paid or payable
by an Indemnified Party as a result of the claims, losses,
damages and liabilities referred to above shall be deemed to
include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such
action or claim.
(iii) No Holder that is a seller of Registrable Stock
covered by such registration statement or Person controlling
such seller other than the Company shall be obligated to make
contribution hereunder that in the aggregate exceeds the total
public offering price of the Registrable Stock sold by such
Holder, less the aggregate amount of any damages that such
Holder and its controlling Persons have otherwise been
required to pay pursuant to this Section 2.4. The obligations
<PAGE>
of such Holders to contribute are several in proportion to
their respective ownership of the securities covered by such
registration statement and not joint.
(iv) The indemnity and contribution provided herein
shall be in addition to, and not in lieu of, any other
liability that one party may have to another.
Section 2.5 Information by Holder. Each Holder of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this Article
II.
Section 2.6 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission that may at any time
permit the sale of the Restricted Securities to the public without registration,
the Company agrees to:
(a) use its best efforts to facilitate the sale of the
Restricted Securities to the public without registration under the
Securities Act, pursuant to Rule 144 under the Securities Act;
(b) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all
times after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general
public;
(c) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act
and the Exchange Act (at any time after it has become subject to such
reporting requirements); and
(d) so long as a Holder owns any Restricted Securities to
furnish to the Holder forthwith upon request a written statement by the
Company as to its compliance with the public information requirements
of said Rule 144, and the reporting requirements of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by
the Company as a Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to sell any
such securities without registration.
Section 2.7 Transfer of Registration Rights. The rights granted under
this Article II may be assigned or otherwise conveyed by any Holder of
Registrable Securities to any transferee, subject to compliance with all
applicable securities laws and regulations.
Section 2.8 Certain Limitations in Connection with
Future Grants of Registration
Rights.
<PAGE>
From and after the date of this Agreement, without the prior written
consent of the Holders of a majority of the Registrable Securities, the Company
shall not enter into any agreement with any holder or prospective holder of any
securities of the Company providing for the granting to such holder of
registration rights that would be superior to those granted to Holders pursuant
to Section 2.1.
Section 2.9 Restrictions on Market Manipulation. In the event any
shares of Common Stock are offered or sold by any Holder in a registration, each
such Holder will:
(a) advise the Company in writing of any offer, sale or other
disposition by it of any Common Stock in any manner other than as set
forth in the registration statement or any prospectus included therein
on or for the 30-day period prior to the filing of such registration
statement until the distribution under the registration statement has
been completed;
(b) not effect any stabilization activity in connection with
the Company's Common Stock;
(c) not bid or purchase, for any account in which it has a
beneficial interest,any Common Stock except as may be permitted
pursuant to Rule 10b-6 under the Exchange Act (if applicable);
(d) not until it has sold all of such shares of Common Stock,
attempt to induce any Person to purchase any Common Stock except as may
be permitted pursuant to Rule 10b-6; and
(e) not until it has sold all such shares of Common Stock, pay
any compensation for soliciting another to purchase any securities of
the Company, except as may be permitted pursuant to Rule 10b-6.
ARTICLE III
MISCELLANEOUS
Section 3.1 Governing Law; Jurisdiction and Venue. This Agreement shall
be governed by and interpreted in accordance with the laws of the State of
Florida; provided, however, that if any provision of this Agreement is
unenforceable under the laws of the State of Florida, but is enforceable under
the laws of the Province of Ontario, Canada, then such provision shall be
governed by and interpreted in accordance with the laws of the Province of
Ontario. The parties agree that the courts of the Province of Ontario, Canada,
shall have exclusive jurisdiction and venue for the adjudication of any civil
action between them arising out of relating to this Agreement, and hereby
irrevocably consent to such jurisdiction and venue.
Section 3.2 Successors and Assignees. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assignees, heirs, executors and administrators (as the
case may be) of the parties hereto.
Section 3.3 Entire Agreement. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subject matter hereof.
<PAGE>
Section 3.4 Notices, etc. All notices and other communications required
or permitted hereunder shall be in writing and shall be effective four days
after mailed by first-class mail, postage prepaid, or otherwise delivered by
hand or by messenger, addressed (a) if to the Purchaser, at 365 Bay Street, 10th
Floor, Toronto, Ontario M5H 2V2, Canada, Attention: Mark E. Valentine, Chairman;
(b) if to any other Holder of Registrable Securities, at such address as such
Holder shall have furnished the Company in writing, or, until any such Holder so
furnishes an address to the Company, then to and at the address of the last
Holder of such Registrable Securities who has so furnished an address to the
Company; or (c) if to the Company, at 1778 Doyle Road, Deltona, Florida 32725,
Attention: John Van Zyll, President.
Section 3.5 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any Holder of any Registrable Securities,
upon any breach or default of the Company under this Agreement, shall impair any
such right, power or remedy of such Holder nor shall it be construed to be a
waiver of any such breach or default or an acquiescence therein or of or in any
similar breach or default thereunder 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. Any waiver, permit, consent or approval of
any kind or character on the part of any Holder of any breach or default under
this Agreement or any waiver on the part of any Holder of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Holder shall be cumulative
and not alternative.
Section 3.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts and all of which together shall constitute one
instrument.
Section 3.7 Severability. In the event any provision of this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 3.8 Amendments. The provisions of this Agreement may be amended
at any time and from time to time, and particular provisions of this Agreement
may be waived, with and only with, an agreement or consent in writing signed by
the Company and by the Holders of a majority of the Registrable Securities
voting as a single class.
The parties have executed this Registration Rights Agreement as of the
date first written above.
DIVERSIFIED PRODUCT INSPECTIONS, INC.
By: /s/ John VanZyll
------------------------------------
Name: John VanZyll
Title: President
THOMSON KERNAGHAN & CO. LIMITD, AS
AGENT
By: /s/ M McKinnon
-------------------------------------
Name: M. McKinnon
Title: as agent
