|
Exhibit
10.6
FOURTH AMENDED AND
RESTATED
REGISTRATION RIGHTS
AGREEMENT
This Fourth Amended and
Restated Registration Rights Agreement (as amended, this “
Agreement ”) is made as of July 24, 2007,
among North American Technologies Group, Inc., a Delaware
corporation (the “ Company ”), and the
stockholders listed on Exhibit A hereto (each individually a
“ Stockholder ” and collectively the
“ Stockholders ”).
RECITALS
WHEREAS, the Stockholders or
their affiliates have acquired or will acquire either shares of the
Company’s common stock, par value $.001 per share (the
“ Common Stock ”), or securities
convertible into shares of the Common Stock pursuant to either
(i) that certain Common Stock Purchase Agreement dated as of
November 8, 2004, by and among Avalanche Resources, Ltd. and
the Purchasers named therein (the “ Stock Purchase
Agreemen t ”); (ii) that certain Exchange
Agreement dated as of November 8, 2004, by and between the
Company and Sponsor Investments, LLC (the “ Exchange
Agreement ”); (iii) that certain Securities
Purchase Agreement dated July 7, 2005, among the Company and
certain Purchasers (as defined therein) (the “ July
2005 Securities Purchase Agreement ”); (iv) that
certain Securities Purchase Agreement dated December 28, 2005,
among the Company and certain Purchasers (as defined therein) (the
“ December Securities Purchase Agreement
”) (v) those certain Loan Documents as such term is
defined in that certain Construction Loan Agreement dated as of
February 5, 2004, as amended from time to time, among the
Company, Tietek LLC, Tietek Technologies, Inc. and Opus 5949 LLC
(the “ Opus Loan Agreement ”);
(vi) that certain Securities Purchase Agreement of even date
herewith among the Company and certain Purchasers (as defined
therein) (the “ 2006 Securities Purchase
Agreement ”); (vii) that certain Securities
Purchase Agreement dated July 24, 2007 (the “ July
2007 Securities Purchase Agreement ”); and
(viii) as the same may be amended from time to time;
and
WHEREAS, in order to induce
the Stockholders or their affiliates to enter into the Stock
Purchase Agreement, the Exchange Agreement, the July 2005
Securities Purchase Agreement, the December Securities Purchase
Agreement, the 2006 Securities Purchase Agreement, the July 2007
Securities Purchase Agreement or the Opus Loan Agreement, as the
case may be, the Company has agreed to provide the Stockholders
with certain rights to register Shares of the Company’s
Common Stock, as provided herein.
AGREEMENT
NOW, THEREFORE, in
consideration of the promises and the mutual agreements herein
contained, the Stockholders and the Company hereby agree as
follows:
1. Demand
Registrations .
Requests for
Registration . The Initiating Holders may request registration
under the Securities Act of all or any portion of their Registrable
Securities on Form S-1 or any similar long-form registration
(“ Long-Form Registrations ”), and any
Holders may
1
request registration under
the Securities Act of all or any portion of their Registrable
Securities on Form S-2 or S-3 or any similar short-form
registration (“ Short-Form Registrations
”) if the Company is eligible to use any such short-form. All
registrations requested pursuant to this Section 1(a) are
referred to herein as “ Demand Registrations
.” The Initiating Holders and any Holders may request a
Demand Registration no earlier than one (1) year from the date
of this Fourth Amended and Restated Agreement. Each request for a
Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the
anticipated per share price range for such offering. Within ten
days after receipt of any such request, the Company shall give
written notice of such requested registration to all other holders
of Registrable Securities and, subject to Section 1(d) below,
shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the
Company’s notice. On or prior to each filing date, the
Company shall prepare and file with the Commission a Registration
Statement covering the resale of all or such maximum portion of the
Registrable Securities as permitted by SEC Guidance (provided that
the Company shall use diligent efforts to advocate with the
Commission for the registration of all of the Registrable
Securities in accordance with the SEC Guidance, including without
limitation, the Manual of Publicly Available Telephone
Interpretations D.29) that are not then registered on an effective
Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. “ SEC Guidance ”
means (i) any publicly-available written or oral guidance,
comments, requirements or requests of the Commission staff and
(ii) the Securities Act.
(a) Long-Form
Registrations . The Initiating Holders shall be entitled to
request six (6) Long-Form Registrations in which the Company
shall pay all Registration Expenses (the “ Company-Paid
Long-Form Registrations ”); provided ,
however , that each of the Group A and the Group B shall be
limited to three (3) such requests which do not include a
member of the other as one of the Initiating Holders. Any sales by
the Initiating Holders pursuant to a registration statement that
has been filed with the Commission but that has not been declared
effective as of the date hereof shall count as one of the permitted
Long-Form Registrations. A registration shall not count as one of
the permitted Long-Form Registrations until it has become effective
and the holders of Registrable Securities initially requesting the
Long-Form Registration are able to register and sell at least 90%
of the Registrable Securities requested to be included in such
registration by such holders; provided that in any event the
Company shall pay all Registration Expenses in connection with any
registration initiated as a Long-Form Registration whether or not
it has become effective and whether or not the holders of
Registrable Securities have been able to register and sell at least
90% of the Registrable Securities to be included in such
registration by such holders. All Long-Form Registrations shall be
underwritten registrations.
(b) Short-Form
Registrations . In addition to the Long-Form Registrations
provided pursuant to Section 1(b), the Holders shall be
entitled to request unlimited Short-Form Registrations in which the
Company shall pay all Registration Expenses provided, however, that
Shares representing at least 15% of the Company’s issued and
outstanding Common Stock will be included in such registration.
Demand Registrations shall be Short-Form Registrations
2
whenever the Company is eligible to use
any applicable short form. The Company shall use its best efforts
to qualify and/or maintain qualification for registration on Form
S-3 or any comparable or successor form.
2. Priority on Demand
Registrations . The Company shall not include in any Demand
Registration any securities which are not Registrable Securities
without the prior written consent of the Holders owning more than
50% of the Registrable Securities being requested to be registered.
If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their
opinion the number of Registrable Securities and, if permitted
hereunder other securities requested to be included in such
offering, exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such
offering within a price range acceptable to the Holders owning more
than 50% of the Registrable Securities being requested to be
registered, then the Company shall include in such registration
before the inclusion of any securities which are not Registrable
Securities (other than securities requested to be included in such
registration pursuant to contractual obligations with the Company)
the number of Registrable Securities requested to be included which
in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, pro rata among the
respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder. Any Persons other
than holders of Registrable Securities who participate in Demand
Registrations which are not at the Company’s expense must pay
their share of the Registration Expenses as provided in
Section 4 hereof. Notwithstanding any other provision of this
Agreement if any SEC Guidance sets forth a limitation on the number
of Registrable Securities permitted to be registered on a
particular Registration Statement (and notwithstanding that the
Company used diligent efforts to advocate with the Commission for
the registration of all or a greater portion of Registrable
Securities), unless otherwise directed in writing by a Holder as to
its Registrable Securities, the number of Registrable Securities to
be registered on such Registration Statement will first be reduced
by Registrable Securities represented by Warrant Shares (applied,
in the case that some Warrant Shares may be registered, to the
Holders on a pro rata basis based on the total number of
unregistered Warrant Shares held by such Holders), and second by
Registrable Securities represented by Conversion Shares (applied,
in the case that some Conversion Shares may be registered, to the
Holders on a pro rata basis based on the total number of
unregistered Conversion Shares held by such Holders).
(a) Selection of
Underwriters . The selection of investment banker(s) and
manager(s) for any Demand Registration must be approved by the
Holders owning more than 50% of the Registrable Securities being
requested to be registered.
(b) Other Registration
Rights . Except as provided in this Agreement, the Company
shall not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for
3
such securities, without the prior
written consent of Holders owning more than 50% of the Registrable
Securities; provided that the Company may grant rights to
other Persons to participate in Piggyback Registrations so long as
such rights are subordinate to the rights of the holders of
Registrable Securities with respect to such Piggyback
Registrations.
3. Piggyback
Registrations .
(a) Right to Piggyback
. Whenever the Company proposes to register any of its securities
under the Securities Act (other than pursuant to a Demand
Registration or any registration on Form S-4 or Form S-8) and the
registration form to be used may be used for the registration of
Registrable Securities (a “ Piggyback
Registration ”), the Company shall give prompt
written notice to all Holders of Registrable Securities of its
intention to effect such a registration and, subject to Sections
2(c) and 2(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days
after the receipt of the Company’s notice.
(b) Piggyback Expenses
. The Registration Expenses of the holders of Registrable
Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary
Registrations . If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such
registration and other securities requested in such registration
pursuant to contractual obligations with the Company, pro rata
among the holders of such Registrable Securities and other
securities on the basis of the number of shares owned by each such
holder, and (iii) third, other securities requested to be
included in such registration.
4. Priority on Secondary
Registrations .
(a) If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Company’s securities, and the managing
underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering
without adversely affecting the marketability of the offering, the
Company shall include in such registration (i) first, the
securities requested to be included therein by the holders
requesting such registration, the Registrable Securities requested
to be included in such registration and other securities requested
to be included in such registration pursuant to contractual
obligations with the Company, pro rata among the holders of such
securities on the basis of the number of securities owned by each
such holder and (ii) other securities requested to be included
in such registration. Notwithstanding any other provision of this
Agreement if any SEC Guidance sets forth a limitation on the number
of Registrable Securities permitted to be registered on a
particular Registration Statement (and notwithstanding that the
Company used diligent efforts to advocate with the Commission for
the registration of all or a greater portion of Registrable
Securities), unless otherwise directed in
4
writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be
registered on such Registration Statement will first be reduced by
Registrable Securities represented by Warrant Shares (applied, in
the case that some Warrant Shares may be registered, to the Holders
on a pro rata basis based on the total number of unregistered
Warrant Shares held by such Holders), and second by Registrable
Securities represented by Conversion Shares (applied, in the case
that some Conversion Shares may be registered, to the Holders on a
pro rata basis based on the total number of unregistered Conversion
Shares held by such Holders).
(b) Other
Registrations . If the Company has previously filed a
registration statement with respect to Registrable Securities
pursuant to Section 1 or Registrable Securities pursuant to
this Section 2, and if such previous registration has not been
withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its
equity securities under the Securities Act (except on Form S-8 or
any successor form), whether on its own behalf or at the request of
any holder or holders of such securities, until a period of at
least 90 days has elapsed from the effective date of such previous
registration.
5. Registration
Procedures . Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered
pursuant to this Agreement, the Company shall use its best efforts
to effect the registration and the sale of such Registrable
Securities in accordance with the terms of this Agreement and the
intended method of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) prepare and file with the
Securities and Exchange Commission a registration statement with
respect to such Registrable Securities and use its best efforts to
cause such registration statement to become effective; provided
that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall, if
requested, furnish to the counsel selected by the Initiating
Holders in the event of a Company-Paid Long-Form Registration or by
Holders owning more than 50% of the Registrable Securities prepared
to be registered under any other registration hereunder, copies of
all such documents proposed to be filed (excluding
exhibits);
(b) notify each holder of
Registrable Securities of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities
and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period of not less than 180 days and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish to each seller of
Registrable Securities such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus), and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
5
(d) use its best efforts to
register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any seller
reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided that the Company
shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction;
(e) notify each seller of
such Registrable Securities, 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 contains an untrue
statement of a material fact or omits any fact necessary to make
the statements therein not misleading, and, at the request of the
holders of a majority of the sellers of such Registrable
Securities, the Company shall prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(f) cause all such
Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use
its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ
“national market system security” within the meaning of
Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable
Securities;
(g) provide a transfer agent
and registrar for all such Regis
| 
