EXHIBIT 99.5
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of May 9,
2003, by and between KRONOS ADVANCED TECHNOLOGIES, INC., a Nevada corporation
(the "COMPANY"), and FKA DISTRIBUTING CO., d/b/a HOMEDICS, INC., a Michigan
corporation (the "PURCHASER").
A. The Purchaser has been issued two (2) warrants dated May 9, 2003
(the "WARRANTS") to purchase an aggregate of 13,492,342 shares of common stock
of the Company pursuant to a Master Loan and Investment Agreement dated May 9,
2003 (the "LOAN AGREEMENT").
B. The Loan Agreement and Warrants require that the Company enter into
this Agreement with the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, the parties to this
Agreement hereby agree as follows:
1. EFFECTIVENESS. The rights and obligations of the parties hereto
shall be effective upon the issuance of the Warrants.
2. Demand Registration.
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(a) If the Purchaser shall request (a "DEMAND") the Company in
writing to register under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), any shares of the Common Stock of the Company (the "COMMON
STOCK") acquired by the Purchaser upon exercise of either of the Warrants (the
shares of Common Stock so acquired and subject to such request being herein
referred to as the "SUBJECT STOCK"), the Company shall use its best efforts to
cause the shares of Subject Stock specified in such request to be registered as
soon as reasonably practicable so as to permit the sale thereof, and in
connection therewith shall prepare and file a Form S-3 registration statement
(or similar form which may be promulgated in the future) or such other form as
to which the Company is eligible to file with the Securities and Exchange
Commission (the "SEC") under the Securities Act to effect such registration;
provided, however, that such request shall (i) specify the number of shares of
Subject Stock intended to be offered and sold, which number of shares shall
represent Subject Stock with an aggregate market value of at least $500,000,
based on the average closing sale price of the Common Stock for the ten (10)
trading days preceding the date prior to the date of the Purchaser's request
first received by the Company, (ii) express the present intention of the
Purchaser to offer or cause the offering of such shares of Subject Stock for
distribution, (iii) describe the nature or method of the proposed offer and sale
thereof, and (iv) contain the undertaking of the Purchaser to provide all such
information and materials and take all such action as may be required in order
to permit the Company to comply with all applicable requirements of the SEC and
to obtain any desired acceleration of the effective date of such registration
statement.
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(b) Notwithstanding the foregoing and Section 4 hereof, upon
delivery to the Purchaser of a written notice, the Company shall be entitled to
postpone filing of the registration statement, and may withhold efforts to cause
the registration statement to become effective, for a reasonable period of time
(not to exceed ninety (90) days) if (i) the Company is contemplating filing a
registration statement within ninety (90) days of such request for registration
(which shall not affect the Purchaser's other rights hereunder, including
without limitation the Purchaser's rights under Section 3 below), (ii) the
Company determines in good faith that such registration might interfere with or
affect the negotiation or completion of any transaction that is being
contemplated by the Company (whether or not a final decision has been made to
undertake such transaction) at the time the right to delay is exercised, or
(iii) the Company determines in good faith that such registration might involve
initial or continuing disclosure obligations that might not be in the best
interests of the Company or its shareholders. The Company shall not be required
to effect more than one (1) demand registration statement under this Agreement;
provided, however, that if any postponement pursuant to the preceding sentence
extends beyond the date on which the Warrants expire, the obligations of the
Company hereunder shall be extended by a number of days necessary to complete
the distribution of securities subject to such postponement. In a case of
postponement pursuant to clause (i) of the first sentence of this paragraph (b),
the request for registration will not constitute a Demand for purposes of
determining the number of Demands permitted pursuant to this paragraph unless
the contemplated registration by the Company is abandoned or not consummated
within the ninety (90) day period and then the Company successfully registers
the shares of Subject Stock pursuant to the Demand.
(c) If, after a registration statement becomes effective, the
Company advises the Purchaser that the Company considers it appropriate for the
registration statement to be amended, the Purchaser shall suspend any further
sales of the registered shares until the Company advises the Purchaser that the
registration statement has been amended. The ninety (90) day time period
referred to in Section 4 hereof during which the registration statement must be
kept current after its effective date shall be extended for an additional number
of business days equal to the number of business days during which the right to
sell shares was suspended pursuant to the preceding sentence, but in no event
will the Company be required to update the registration statement after the
expiration of this Agreement.
3. Company Registration.
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(a) If the Company shall determine to register any shares of
Common Stock, whether for its own account or for a security holder or holders
exercising their respective demand registration rights (to the extent any may be
granted in the future), other than (i) a registration relating solely to
employee benefit plans on Form S-1 or S-8 or similar forms which may be
promulgated in the future, or (ii) a registration on Form S-4 or similar form
which may be promulgated in the future relating to a business combination or
exchange offer for the Company's securities, the Company will promptly give to
the Purchaser written notice thereof and include in such registration (and any
related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all Subject Stock specified in a written request,
made within twenty (20) business days after receipt of such written notice from
the Company by the Purchaser.
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(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Purchaser as a part of the written notice given pursuant to Section
3(a). In such event the right of the Purchaser to registration pursuant to this
Section 3 shall be conditioned upon such Purchaser's agreeing to participate in
such underwriting and in the inclusion of the Purchaser's Subject Stock in the
underwriting to the extent provided herein. The Purchaser shall (together with
the Company) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Company. If
the Purchaser disapproves of the terms of any such underwriting, the Purchaser
may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Common Stock excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
(c) Notwithstanding any other provision of this Section 3, if the
Company or any underwriter determines that marketing or other factors require a
limitation of the number of shares to be registered or underwritten, the Company
or such underwriter may exclude all or any portion of the Subject Stock
requested to be included. The Company shall so advise the Purchaser and the
other holders distributing their Common Stock through such underwriting, if any,
and the number of shares of Subject Stock and other securities that may be
included in the registration and underwriting, if any, shall be allocated among
all holders thereof pro rata, based, as nearly as practicable, on the respective
amounts of Common Stock entitled to inclusion in such registration held by such
holders at the time of filing the registration statement.
4. OBLIGATIONS OF THE COMPANY. Whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any Common Stock under the Securities Act, the Company shall (i) prepare and,
as soon as possible, file with the SEC a registration statement with respect to
the shares of Subject Stock, and shall use its best efforts to cause such
registration statement to become effective and to remain effective until the
earlier of the sale of the shares of Subject Stock so registered or ninety (90)
days subsequent to the effective date of such registration; (ii) prepare and
file with the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to make and
to keep such registration statement effective and to comply with the provisions
of the Securities Act with respect to the sale or other disposition of all
securities proposed to be registered in such registration statement until the
earlier of the sale of the shares of Subject Stock so registered or ninety (90)
days subsequent to the effective date of such registration statement, (iii)
furnish to the Purchaser such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus) in conformity
with the requirements of the Securities Act as the Purchaser may reasonably
request in order to effect the offering and sale of the shares of Subject Stock
to be offered and sold, but only while the Company shall be required under the
provisions hereof to cause the registration statement to remain current; (iv)
use its best efforts to register or qualify the shares of Subject Stock covered
by such registration statement under the securities or blue sky laws of such
states as the Purchaser shall reasonably request, maintain any such registration
or qualification current until the earlier of the sale of the shares of Subject
Stock so registered or thirty (30) days subsequent to the effective date of the
registration statement, and do any and all other acts and things either
necessary or advisable to enable the Purchaser to consummate the public sale or
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other disposition of the shares of Subject Stock in jurisdictions where the
Purchaser desires to effect such sales or other disposition (but the Company
shall not be required to take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not so subject or
to qualify as a foreign corporation in any jurisdiction where the Company is not
so qualified); (v) list the shares of Subject Stock on the OTC BB (or any other
quotation system or stock exchange on which the Common Stock of the Company is
quoted or listed at the time of registration); (vi) use its best commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of a registration statement or the lifting of any suspension of
the qualification of any of the Subject Stock for sale in any jurisdiction at
the earliest possible time; and (vii) take all such other action either
necessary or desirable to permit the shares of Subject Stock held by the
Purchaser to be registered and disposed of in accordance with the method of
disposition described herein. If requested, and provided that the underwriter or
underwriters are reasonably satisfactory to the Company, the Company shall enter
into an underwriting agreement with a nationally recognized investment banking
firm or firms containing representations, warranties, indemnities and agreements
then customarily included by an issuer in underwriting agreements with respect
to secondary distributions. The Company shall not cause the registration under
the Securities Act of any other shares of its Common Stock to become effective
(other than registration of any employee stock plan, or registration in
connection with any exchange offer for the Company's securities, business
combination or similar transaction) during the effectiveness of a registration
requested hereunder for an underwritten public offering if, in the judgment of
the underwriter or underwriters, marketing factors would adversely affect the
selling price of the Subject Stock. In connection with any offering of shares of
Subject Stock registered pursuant to this Agreement, the Company shall furnish
the Purchaser with unlegended certificates representing ownership of the shares
of Subject Stock being sold in such denominations as the Purchaser shall
request.
5. Expenses.
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(a) All regular costs and expenses incurred in connection with any
registration pursuant to Sections 2 and 3 shall be borne by the Company. The
regular costs and expenses of any such registration shall include, without
limitation, the reasonable fees and expenses of counsel for the Purchaser, the
reasonable fees and expenses of the Company's counsel and its accountants, the
costs and expenses of the Company incident to the preparation, printing and
filing under the Securities Act of the registration statement and all amendments
and supplements thereto and the cost of furnishing copies of each preliminary
prospectus, each final prospectus and each amendment or supplement thereto to
underwriters, dealers and other purchasers of the securities so registered, the
costs and expenses incurred in connection with the qualification of such
securities so registered under the "blue sky" laws of various jurisdictions, the
fees and expenses of the Company's transfer agent, listing fees and all other
miscellaneous costs and expenses typically incident to such registration
(collectively, "REGISTRATION EXPENSES").
(b) Excluding the Registration Expenses (as defined above), the
Purchaser (and other holders including any Common Stock in such registration)
shall pay all underwriting discounts and selling commissions with respect to the
Subject Stock sold by them pursuant to such registration statement.
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6. Indemnification.
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(a) INDEMNIFICATION BY THE COMPANY. In the case of any offering
registered pursuant to this Agreement, the Company agrees to indemnify and hold
the Purchaser, each of its directors and officers, each underwriter of shares of
Subject Stock under such registration and each person who controls any of the
foregoing within the meaning of Section 15 of the Securities Act harmless
against any and all losses, claims, damages or liabilities, including any of the
foregoing incurred in settlement of any litigation commenced or threatened, to
which they or any of them may become subject under the Securities Act or any
other statute or common law or otherwise, and to reimburse them, from time to
time upon request, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of or
shall be based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement relating to the sale of
such shares of Subject Stock, or the 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 untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus (as
amended or supplemented if the Company shall have filed with the SEC any
amendment thereof or supplement thereto) if used prior to the effective date of
such registration statement or contained in the prospectus (as amended or
supplemented if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), if used within the period during which the Company shall
be required to keep the registration statement to which such prospectus relates
current pursuant to the terms of this Agreement, or the omission or alleged
omission to state therein (if so used) a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the indemnification agreement
contained in this Section 6(a) shall not apply to such losses, claims, damages,
liabilities or actions which shall arise from the sale of shares of Subject
Stock to any person if such losses, claims, damages, liabilities or actions
shall arise out of or shall be based upon any such untrue statement or alleged
untrue statement, or any such omission or alleged omission, if such statement or
omission shall have been (x) made in reliance upon and in conformity with
information furnished in writing to the Company by Purchaser or any such
underwriter specifically for use in connection with the preparation of the
registration statement or any preliminary prospectus or prospectus contained in
the registration statement or any such amendment thereof or supplement thereto,
or (y) made in any preliminary prospectus, and the prospectus contained in the
registration statement as declared effective or in the form filed by the Company
with the SEC pursuant to Rule 424 under the Securities Act shall have corrected
such statement or omission and a copy of such prospectus shall not have been
sent or given to such person at or prior to the confirmation of such sale to him
or her.
(b) INDEMNIFICATION BY THE PURCHASER. In the case of each offering
registered pursuant to this Agreement, the Purchaser agrees, and each
underwriter participating therein shall agree, in the same manner and to the
same extent as set forth in Section 6(a) of this Agreement, severally to
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, its
directors and those officers of the Company who shall have signed any such
registration statement with respect to any statement in or omission from such
registration statement or any preliminary prospectus (as amended or as
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supplemented, if amended or supplemented as aforesaid) or prospectus contained
in such registration statement (as amended or as supplemented, if amended or
supplemented as aforesaid), if such statement or omission shall have been made
in reliance upon and in conformity with information furnished in writing to the
Company by the Purchaser or such underwriter specifically for use in connection
with the preparation of such registration statement or any preliminary
prospectus or prospectus contained in such registration statement or any such
amendment thereof or supplement thereto.
(c) NOTICE OF CLAIMS. Each party indemnified under Section 6(a) or
Section 6(b) of this Agreement shall, promptly after receipt of notice of the
commencement of any action against such indemnified party in respect of which
indemnity may be sought, notify the indemnifying party in writing of the
commencement thereof. The failure of any indemnified party so to notify an
indemnifying party of any such action shall not relieve the indemnifying party
from any liability in respect of such action which it may have to such
indemnified party on account of the indemnity agreement contained in Section
6(a) or Section 6(b) of this Agreement, unless the indemnifying party was
prejudiced by such failure, and in no event shall relieve the indemnifying party
from any other liability which it may have to such indemnified party. In case
any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under Section 6(a) or Section 6(b) of this Agreement for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the above, however, if representation of one or
more indemnified parties by the counsel retained by the indemnifying party would
be inappropriate due to actual conflicting interests between such indemnified
parties (the "CONFLICTING INDEMNIFIED PARTIES") and any other party represented
by such counsel in such proceeding, then such conflicting indemnified parties
shall have the right to retain one separate counsel, chosen by the holders of a
majority of the Subject Stock included in the registration, at the expense of
the indemnifying party. No indemnifying party, (i) in the defense of any such
claim or litigation, shall, except with the consent of each indemnified party,
which consent shall not unreasonably be withheld, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation, or (ii)
shall be liable for amounts paid in any settlement if such settlement is
effected without the consent of the indemnifying party, which consent shall not
be unreasonably withheld.
(d) CONTRIBUTION. If for any reason the foregoing indemnification
is not available, or is insufficient to hold harmless an indemnified party,
other than by reason of the exceptions provided herein, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the holder of Subject Stock and the
Company as well as any other equitable considerations including the parties'
relative knowledge and access to information concerning the matter with respect
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to which any claim is asserted and the opportunity to correct and prevent any
such statement or omission leading to such loss, claim, damage or liability (or
actions in respect thereof), but not including the relative benefits received by
the holders of Subject Stock on the one hand and the Company on the other;
provided, however, that in any such case (a) no holder of Subject Stock or its
officers, directors and persons controlling such holder will be required to
contribute except to the extent and under such circumstances as such holder
would be required to provide indemnification hereunder if such indemnification
were available and then only in an amount not in excess of the net proceeds to
it of all Subject Stock sold in the registration, and (b) 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 is not so
guilty.
(e) SURVIVAL. The indemnification provided by this Section 6 shall
be a continuing right to indemnification and shall survive the registration and
sale of any securities by any person entitled to indemnification hereunder and
the expiration or termination of this Agreement.
7. TERMINATION OF REGISTRATION RIGHTS. The registration rights granted
pursuant to this Agreement shall terminate at such time as all shares of Subject
Stock beneficially owned by the Purchaser can be sold within any given
three-month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144 and a written opinion to that effect of
legal counsel for the Company is delivered to the Purchaser which shall be
reasonably satisfactory in form and substance to legal counsel for the
Purchaser.
8. TRANSFER OF RIGHTS. This Agreement, and the rights and obligations
of the Purchaser hereunder, may be assigned by the Purchaser to any person or
entity that acquires at least fifty percent (50%) of the Subject Stock initially
issued pursuant to either Warrant.
9. LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date hereof, the Company shall not, without the prior consent of the holders of
not less than fifty percent (50%) of the Subject Stock, enter into any agreement
with any holder or prospective holder of any securities of the Company which
would allow such holder or prospective holder to include such securities in any
registration filed under Sections 2 and 3 hereof, other than rights identical or
subordinate to the rights of the Purchaser hereunder.
10. NOTICES. Any notice or other communication given under this
Agreement shall be sufficient if in writing and sent by personal service,
facsimile, courier service promising overnight delivery or registered or
certified mail, return receipt requested, postage prepaid, to a party at its
address set forth below (or at such other address as shall be designated for
such purpose by such party in a written notice to the other party hereto):
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(1) if to the Company, to it at:
Kronos Advanced Technologies, Inc.
464 Common Street, Suite 301
Belmont, MA 02478-2570
Attention: Daniel R. Dwight
Facsimile: 617-993-9985
with a copy to:
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, Suite 2000
Miami, FL 33131
Attention: Clayton E. Parker, Esq.
Facsimile: 305-358-7095
(2) if to the Purchaser, to it at:
FKA Distributing Co., d/b/a HoMedics, Inc.
3000 N. Pontiac Trail
Commerce Township, MI 48390-2720
Attention: Ron Ferber
Facsimile: 248-863-3199
with a copy to:
Seyburn, Kahn, Ginn, Bess and Serlin, P.C.
2000 Town Center
Suite 1500
Southfield, MI 48075-1195
Attention: Alan M. Stillman, Esq.
Facsimile: (248) 353-3727
All such notices and communications shall be effective when received by the
addressee. In the event that any date provided for in this Agreement falls on a
Saturday, Sunday or legal holiday, such date shall be deemed extended to the
next business day.
11. CAPTIONS AND HEADINGS. The captions and headings used herein are for
convenience and ease of reference only and are not intended to be a part of or
to affect the meaning or interpretation of this Agreement.
12. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, Warrant No. 1, Warrant
No. 2, the Loan Agreement and all Exhibits to the Loan Agreement constitute the
full and entire understanding and agreement between the Company and the
Purchaser with regard to the subject matter hereof and supersede all prior
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agreements and understandings between them relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
13. GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Michigan as applied to contracts entered into solely
between residents of, and to be performed entirely within, such state. Any
action or proceeding arising under or pursuant to this Agreement shall be
brought in the appropriate court in the State of Michigan.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
15. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restriction of this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts. All of such counterparts together shall constitute one and the
same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officers as of the date set forth above.
KRONOS ADVANCED TECHNOLOGIES, INC.
By: /s/ Daniel R. Dwight
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Name: Daniel R. Dwight
Title: President and CEO
FKA DISTRIBUTING CO., d/b/a HOMEDICS,
INC.
By: /s/ Ron Ferber
--------------------------------------
Name: Ron Ferber
Title: President
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