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EXHIBIT 4.1
EXECUTION COPY
eVENTURES GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (This "Agreement") is made and
entered into as of April 4, 2000, by and among eVENTURES GROUP, INC., a Delaware
corporation (the "Company"), and the persons and entities signatories hereto
(collectively, the "Stockholders"), as holders of shares of common stock, par
value $0.00002 per share, of the Company ("Common Stock").
WITNESSETH:
WHEREAS, the Company and the Stockholders have entered into that
certain Common Stock Subscription Agreement dated on or about April 4, 2000 (the
"Subscription Agreement"), pursuant to which the Stockholders acquired shares of
Common Stock (the "Shares") in the amounts set forth on Schedule I hereto; and
WHEREAS, in connection with the Subscription Agreement, the parties
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Agreement and in the Subscription Agreement, the
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. REGISTRABLE SHARES. For purposes of this Agreement, "Registrable
Shares" shall mean, at any time, and with respect to any Stockholder or
Qualified Transferee (as defined in Section 9(g) below), any Restricted
Securities (as defined below) held by such Stockholder or Qualified Transferee,
and "Holder" shall mean any Stockholder or Qualified Transferee holding
Registrable Shares. As to any particular Registrable Shares, once issued, such
Registrable Shares shall cease to be Registrable Shares (1) when such
Registrable Shares have been registered under the Securities Act of 1933, as
amended or any successor Federal statute (the "Act"), the Registration Statement
in connection therewith has been declared effective by the Securities and
Exchange Commission or any successor agency thereto (the "SEC") and they have
been disposed of pursuant to and in the manner described in such effective
Registration Statement, (2) when such Registrable Shares are sold or distributed
pursuant to Rule 144 (as defined below), (3) when such Registrable Shares have
ceased to be outstanding, or (4) when such Registrable Shares have been
transferred to a person or entity other than a Qualified Transferee. For
purposes of this Agreement, the term "Restricted Securities" shall mean, at any
time and with respect to any Stockholder or Qualified Transferee, the Shares and
any Common Stock received on or with respect to any of the Shares, including
Common Stock received by way of stock split or stock dividend or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization, which are held by such Stockholder or Qualified Transferee and
which theretofor have not been sold to the public pursuant to a Registration
Statement or transferred pursuant to Rule 144. For purposes of this Agreement,
the term "Registration Statement" shall
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mean any registration statement of the Company which covers any of the
Registrable Shares, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus (as defined below) contained therein, all exhibits thereto and all
material incorporated by reference therein. For purposes of this Agreement, the
term "Prospectus" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
Prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein. For purposes of this Agreement, the term
"Rule 144" shall mean Rule 144 promulgated under the Act or any successor or
similar rule thereto, as may be enacted by the SEC from time to time.
2. FORM S-3 ELIGIBILITY. The Company hereby covenants and agrees
that is shall prepare and timely file all such filings in a timely manner and
otherwise as required by the Act, the Exchange Act and the rules and
regulations promulgated under the Act and the Exchange Act, from the date
hereof and throughout the term of this Agreement.
3. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. If the Company proposes to register
any of its securities under the Act (other than pursuant to (i) a
registration solely in connection with an employee benefit or stock
ownership plan on Form S-8 or any comparable or successor form, (ii) a
registration solely in connection with an acquisition consummated in a
manner which would permit registration of such securities to the
public on Form S-4 or any comparable or successor form or (iii) a
"shelf" or similar registration for use solely in connection with
future acquisitions), and the registration form to be used may be used
for the registration of Registrable Shares (a "Piggyback
Registration"), the Company will give prompt written notice to all
Holders of Registrable Shares of its intention to effect such a
registration (each a "Piggyback Notice"). Subject to Section 3(b)
below, the Company will include in such registration all Registrable
Shares that Holders of Registrable Shares request the Company to
include in such registration by written notice given to the Company
within twenty (20) days after the date of sending of the Piggyback
Notice.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities by the Company and the managing underwriter or underwriters
for such offering 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 an orderly manner in such
offering within a price range acceptable to the Company, the Company
will include in such registration (i) first, the securities proposed
to be sold by the Company, (ii) second, the securities proposed to be
sold by any other persons with registration rights senior to those of
the Holders, (iii) third, the securities requested to be included in
such registration, including (a) Registrable Shares and (b) other
securities held by persons with registration rights equal to those of
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the Holders, pro rata among the Holders of such Registrable Shares and
such persons on the basis of the number of shares owned by each such
Holder and each such person, provided that any unused share allocation
of any such Holder or such person not fully participating shall be
reallocated pro rata among the Holders of Registrable Shares and such
persons on the basis of the number of shares being sold by each such
Holder and each such person in such registration, and (iv) fourth,
other securities requested to be included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities held solely by other shareholders of the Company's
securities and the managing underwriter or 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 an orderly manner in such offering within a price range
acceptable to the persons (as defined below) initially requesting such
registration, the Company will include in such registration (i) first,
the securities requested to be included therein by the persons
requesting such registration, (ii) second, the securities proposed to
be sold by any other persons with registration rights senior to those
of the Holders, (iii) third, the Registrable Shares requested to be
included in such registration, pro rata among the Holders of such
Registrable Shares on the basis of the number of shares owned by each
such Holder, provided that any unused share allocation of any such
Holder not fully participating shall be reallocated pro rata among the
Holders of Registrable Shares on the basis of the number of shares
being sold by each such Holder in such registration, and (iv) fourth,
other securities requested to be included in such registration.
(d) OUTSTANDING REGISTRATION RIGHTS OBLIGATIONS. The Company
has provided to the Investors copies of all outstanding agreements
under which it may be obligated to register securities of the Company
(the "Outstanding Agreements") and/or has directed the Investors to
copies of the Outstanding Agreements that have been publicly filed.
As the Company understands the terms of the Outstanding Agreements,
no person or entity has rights under the Outstanding Agreements that
would be "senior" (as that term is used in Sections 3(c) and 3(d)) to
those of the Holders hereunder other than the persons and entities
listed on Schedule I to that certain Registration Rights Agreement,
dated as of September 22, 1999, between the Company and such persons
and entities (the "September 1999 Holders"). The Company has granted
demand registration rights pursuant to such Registration Rights
Agreement and also pursuant to that certain Registration Rights
Agreement, dated as of March 10, 2000, between the Company and the
persons and entities listed on Schedule I thereto. The September 1999
Holders further must approve any participation by other persons or
entities, including the Holders hereunder, in demand registrations
undertaken at their request.
4. REGISTRATION PROCEDURES. Whenever the Holders of Registrable Shares
have requested that any Registrable Shares be registered pursuant to this
Agreement, the Company will use its commercially reasonable efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of distribution thereof and will as expeditiously as possible:
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(i) prepare and file with the Commission a Registration
Statement with respect to such Registrable Shares on any appropriate
form under the Act, which form shall be selected by the Company and
shall be available for the sale of Registrable Shares in accordance
with the intended method or methods of distribution thereof and use
its commercially reasonable 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 will furnish to the counsel selected by the
Holders of a majority of the Registrable Shares included in such
Registration Statement copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement and
supplements to the Prospectus used in connection therewith (and to
file the Prospectus, as so supplemented, under Rule 424 under the
Act, if required) as may be necessary to keep such Registration
Statement effective for a period of up to six (6) months, and comply
with the provisions of the Act with respect to the disposition of all
securities included in such Registration Statement during such period
in accordance with the intended methods of distribution by the
selling Holders thereof set forth in such Registration Statement or
supplement to such Prospectus;
(iii) furnish to each selling Holder of Registrable Shares such
number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits), the
Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such selling
Holder may reasonably request in order to facilitate the disposition
of the Registrable Shares owned by such selling Holder, the Company
consents to the use of the Prospectus and any amendment or supplement
thereto by a seller of Registrable Shares and the underwriters, if
any, in connection with the offering and sale of the Registrable
Shares covered by the Prospectus and any amendment or supplement
thereto;
(iv) notify the selling Holders of Registrable Shares and the
managing underwriter or underwriters, if any, promptly and (if
requested by any such Stockholder) confirm such advice in writing,
(A) when a Prospectus, including any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective, (B) of any request by the Commission for
amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (E) of the
existence of any fact which results in a Registration Statement, a
Prospectus or any document incorporated therein by reference
containing an untrue statement of a material fact or omitting to
state a material fact
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necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(v) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or "blue
sky" laws of such jurisdictions as any selling Holder reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such selling Holder to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such selling Holder, provided that the Company will
not be required (A) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph, (B) to subject itself to taxation in any such
jurisdiction, or (C) to consent to general service of process in any
such jurisdiction;
(vi) notify each selling Holder of such Registrable Shares, at
any time when a Prospectus relating thereto is required to be
delivered under the Act, of the happening of any event referred to in
clause (iv)(E) of this Section 4, and, at the request of any such
seller, prepare a supplement to such Prospectus or a post-effective
amendment to such Registration Statement and furnish to each seller
of Registrable Shares a reasonable number of copies of such
supplement or amendment so that, as thereafter delivered to the
purchasers of such Registrable Shares, such Prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(vii) use its commercially reasonable efforts to cause all such
Registrable Shares to be listed on each securities exchange on which
similar securities issued by the Company are then listed and to be
qualified for trading on each system on which similar securities
issued by the Company are from time to time qualified;
(viii) provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such
Registration Statement and thereafter maintain such transfer agent
and registrar;
(ix) cooperate with each seller of Registrable Shares and the
managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Shares to be
sold pursuant to the Registration Statement, which certificates, if
so required by any securities exchange upon which any Registrable
Shares are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved
borders, and in such denominations and registered in such names as
each seller of Registrable Shares or the managing underwriters, if
any, may request at least two Business Days prior to the sale of
Registrable Shares pursuant to the Registration Statement;
(x) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Holders of a majority of the Registrable Shares being sold or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Shares, including
using its best
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efforts to cause its officers to participate in "road shows" and
other information meetings organized by the managing underwriter and
in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration: (A) make such representations and warranties to each
seller of Registrable Shares, and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in underwritten offerings; and (B) the Company shall
deliver such documents and certificates as may be reasonably
requested by each seller of Registrable Shares, and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties made pursuant hereto and to evidence
compliance with any conditions contained in the underwriting
agreement or other agreement entered into by the Company;
(xi) in connection with an underwritten offering, use its
commercially reasonable efforts to (A) obtain opinions of counsel to
the Company and updates thereof, which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, addressed to the underwriters, covering the matters
customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such
underwriters; and (B) obtain "cold comfort" letters and updates
thereof from the Company's independent certified public accountants,
addressed to the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with underwritten
offerings; make available for inspection during normal business hours
by any underwriter participating in any disposition pursuant to a
registration statement, and any attorney or accountant retained by
such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by such underwriter, attorney or accountant in
connection with such registration statement; provided that such
underwriters execute prior thereto an agreement with the Company that
all such records, information or documents shall be kept confidential
by such persons unless (1) disclosure of such records, information or
documents is required by law or by a court or administrative order or
(2) such records, information or documents are or become (but only
when they become) generally available to the public other than as a
result of disclosure in violation of this paragraph; and make
available for inspection by any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all
information reasonably requested by any such underwriter, attorney,
accountant or agent in connection with such registration statement;
(xii) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission
and make available to its security holders, as soon as reasonably
practicable but no later than fifteen (15) months after the effective
date of the Registration Statement, an earnings statement covering a
period of twelve (12)
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months beginning after the effective date of the Registration
Statement, in a manner which satisfies the provisions of Section 11(a)
of the Act and Rule 158 thereunder;
(xiii) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Shares included in
such registration statement for sale in any jurisdiction, the Company
will use its commercially reasonable efforts promptly to obtain the
withdrawal of such order;
(xiv) provide a CUSIP number for all Registrable Shares, not
later than the effective date of the applicable registration
statement;
(xv) cooperate with each seller of Registrable Shares and each
underwriter participating in the disposition of such Registrable
Shares and their respective counsel in connection with any filings
required to be made with the National Association of Securities
Dealers, Inc.0; and
(xvi) take all other steps reasonably necessary to effect the
registration of the Registrable Shares contemplated hereby.
Notwithstanding anything set forth herein, the Company shall be entitled to
withdraw a Registration Statement in its sole and exclusive discretion at any
time prior to its becoming effective.
5. REGISTRATION EXPENSES.
(a) DEFINITION. The term "Registration Expenses" means any
expenses incident to the Company's performance of or compliance with
this Agreement, including, without limitation, all registration and
filing fees, listing fees, fees and expenses of compliance with
securities or "blue sky" laws, printing expenses, messenger and
delivery expenses, internal expenses, the fees and expenses of counsel
for the Company (but not the fees and expenses of counsel to the
Holders of the Registrable Shares included in such registration) and
all independent certified public accountants, underwriting fees and
expenses (excluding discounts and commissions attributable to the
Registrable Shares, which shall be paid by the selling Holders out of
the proceeds of the offering) and the fees and expenses of any other
persons (as defined below) retained by the Company. For purposes of
this Agreement, the term "person" shall be construed as broadly as
possible and shall include an individual or natural person, a
partnership (including a limited liability partnership), a company, an
association, a joint stock company, a limited liability company, a
trust, a joint venture, an unincorporated entity and a governmental
authority.
(b) PAYMENT. The Company shall pay the Registration Expenses in
connection with any and all Piggyback Registrations.
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6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify,
to the extent permitted by law, each Holder of Registrable Shares, such
Holder's general and limited partners, officers and directors and each person
who controls such Holder (within the meaning of the Act) against all losses,
claims, damages, liabilities and expenses caused by (i) any untrue or alleged
untrue statement of material fact contained in any Registration Statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein or
(ii) any violation or alleged violation by the Company of the Act, the Exchange
Act, any state securities law or any rule or regulation promulgated under the
Act, the Exchange Act or any state securities law. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each person who controls such underwriters (within
the meaning of the Act) to the same extent as provided above with respect to
the indemnification of the Holders of Registrable Shares.
(b) INDEMNIFICATION BY HOLDERS. In connection with any Registration
Statement in which a Holder of Registrable Shares is participating, each such
Holder will furnish to the Company in writing such information and affidavits
as the Company reasonably requests for use in connection with any such
Registration Statement or Prospectus and, to the extent permitted by law, will
indemnify the Company, its directors and officers and each person who controls
the Company (within the meaning of the Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the Registration Statement, Prospectus
or preliminary Prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any written
information or affidavit so furnished in writing by such Holder; provided, that
the obligation to indemnify will be individual to each Holder and will be
limited to the net amount of proceeds received by such Holder from the sale of
Registrable Shares pursuant to such registration statement.
(c) NOTICE; DEFENSE OF CLAIMS. Any person entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification; provided, that the
failure to so notify the indemnifying party shall not relieve the indemnifying
party of any liability that it may have to the indemnified party hereunder
(except to the extent that the indemnifying party is materially prejudiced by
reason of such failure) and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject
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to any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld or delayed). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
special and one local counsel for all parties indemnified by such indemnifying
party with respect to such claim.
(d) CONTRIBUTION. If the indemnification provided for in this Section
5 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, in lieu of indemnifying such
indemnified 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 (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Registrable Shares or
(ii) if the allocation provided for by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other hand in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). 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' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission. The obligation to
contribute will be individual to each Holder of Registrable Shares and will be
limited to the amount by which the net amount of proceeds received by such
Holder from the sale of Registrable Shares exceeds the amount of losses,
liabilities, damages, and expenses which such Holder has otherwise been
required to pay by reason of such statements or omissions.
(e) SURVIVAL. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of securities.
(f) UNDERWRITING AGREEMENT. To the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the provisions of this Section 6, and the Holder indemnifying or seeking
indemnification is a party thereto, the provisions contained in the
underwriting agreement shall control.
(g) NON-EXCLUSIVITY. The obligations of the Company under this Section
6 shall be in addition to any liability which the Company may otherwise have to
any indemnified person under this Section 6 and shall be in addition to any
liability which such indemnified person may otherwise have to the Company. The
remedies provided in
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this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at
law or in equity.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No person may
participate in any registration hereunder which is underwritten unless such
person (i) agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the person or persons entitled hereunder
to approve such arrangements, (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
Holder of Registrable Shares included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such Holder,
such Holder's title to its Registrable Shares and such Holder's intended method
of distribution, and (iii) if requested by the managing underwriter or
underwriters or the Demanding Persons (as defined in the Registration Rights
Agreement, dated as of September 22, 1999, among the Company and the persons
and entities set forth on Schedule 1 thereto), agrees not to sell Registrable
Shares or other securities held by such Holder in any transaction other than
pursuant to such underwriting for such period following the effective date of
the registration statement relating to such underwriting for such period as is
determined by either the Board of Directors or the Demanding Persons.
8. STOCKHOLDER LOCK-UP; AGREEMENT NOT TO SELL.
(a) LOCK-UP AND AGREEMENT NOT TO SELL. Prior to the first
annual anniversary of the date hereof, no Holder of Registrable Shares
may make any public sale of Registrable Shares (pursuant to a
Registration Statement, Rule 144 or otherwise), subject to the
following exceptions; provided, however, that (i) all officers,
directors and holders of one percent (1%) or more of the diluted
equity of the Company (other than (a) those individuals granted stock
options by the Company pursuant to the 1999 Omnibus Securities Plan
and (b) those individuals to be granted stock options by the Company
as set forth on the Schedule of Exceptions to the Subscription
Agreement) and all holders of registration rights under other
agreements with the Company have entered into similar agreements and
(ii) any discretionary waiver or termination of the restrictions of
any such agreement (including this Agreement) with respect to 0.25% or
more (in the aggregate) of the Company's equity securities by the
Company, or the managing underwriter, shall apply to all persons
subject to such agreements on a pro rata basis.
(b) EXCEPTIONS. Nothing herein or in the Subscription
Agreement shall prevent a Holder:
(i) (A) that is a partnership or corporation from
making a distribution of Registrable Shares to the partners or
shareholders thereof that are otherwise in compliance with
applicable securities laws, so long as such permitted
distributees agree to be bound by the terms and conditions of
this Section 8; (B) that desires to sell any Registrable
Shares in a private transaction in compliance with applicable
securities laws from consummating such a sale so long as the
purchaser in any
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private sale agrees in writing to be bound by the restrictions
set forth in this Section 8; or (C) that is an individual,
from making a transfer of Registrable Shares by gift, will or
the laws of descent and distribution, subject to the
restrictions set forth in this Section 8; or
(ii) from including Registrable Shares in a Piggyback
Registration under the terms and conditions set forth in Section 3
above.
9. MISCELLANEOUS.
(a) INFORMATION AND REPORTING.
(i) The Company shall, at all times during which it is
neither subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, nor exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, upon the written request of any
Stockholder, provide in writing to such Stockholder and to any
prospective transferee of the Registrable Shares of such Stockholder
the information concerning the Company described in Rule 144A(d)(4) or
any successor rule under the Act ("Rule 144A Information"). The
Company's obligations under this Section 9(a)(i) shall at all times be
contingent upon receipt from the prospective transferee of Registrable
Shares of a written agreement to take all reasonable precautions to
safeguard the Rule 144A Information from disclosure to anyone other
than persons who will assist such transferee in evaluating the
purchase of any Registrable Shares.
(ii) The Company shall timely file such information,
documents and reports as the Commission may require or prescribe under
Section 13 of the Exchange Act. The Company shall timely file such
information, documents and reports which a corporation, partnership or
other entity subject to Section 13 or 15(d) (whichever is applicable)
of the Exchange Act is required to file. The Company shall promptly
upon request furnish any Holder of Registrable Shares (a) a written
statement by the Company that it has complied with the reporting
requirements of Section 13 or 15(d) of the Exchange Act, (b) a copy of
the most recent annual or quarterly report of the Company, and (c)
such other reports and documents filed by the Company with the
Commission as such Holder may reasonably request in availing itself of
an exemption for the sale of Registrable Shares without registration
under the Act. The Company acknowledges and agrees that the purposes
of the requirements contained in this Section 9(a)(ii) are to enable
any such Holder to comply with the current public information
requirement contained in paragraph (c) of Rule 144, should such Holder
ever wish to dispose of any of the securities of the Company acquired
by it without registration under the Act in reliance upon Rule 144 (or
any other similar exemptive provision), and to qualify the Company for
the use of registration statements on Form S-3. In addition, the
Company shall take such other measures and file such other
information, documents and reports, as shall hereafter be
12
required by the Commission as a condition to the availability of Rule
144 (or any similar exemptive provision hereafter in effect) and the
use of Form S-3. The Company also covenants to use its commercially
reasonable efforts, to the extent that it is reasonably within its
power to do so, to qualify for the use of Form S-3.
(b) NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders of Registrable Shares in this
Agreement, provided, however, that other purchasers of Shares from the Company
may become Holders and parties to this Agreement by executing and delivering to
the Company a signature page to this Agreement.
(c) ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Company will not
take any action, or permit any change to occur, with respect to its securities
for the purpose of materially and adversely affecting the ability of the
Holders of Registrable Shares to include such Registrable Shares in a
registration undertaken pursuant to this Agreement or materially and adversely
affecting the marketability of such Registrable Shares in any such registration
(including, without limitation, effecting a stock split or a combination of
shares); provided that this Section 9(c) shall not apply to actions or changes
with respect to the Company's business, balance sheet, earnings or revenue
where the effect of such actions or changes on marketability of the Registrable
Shares is not material.
(d) NOTICES. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed effectively given
when delivered personally or by facsimile transmission or by overnight delivery
service or 72 hours after being mailed by first class certified or registered
mail, return receipt requested, postage prepaid:
(i) If to the Company, c/o Xxxxxx Xxxxxxxxx, 0000 Xxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at such other address or addresses
as may have been furnished in writing by the Company to the
Stockholders with a copy to (which shall not constitute notice): White
& Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx Xxxxx, Esq. (Fax: 000-000-0000).
(ii) If to a Stockholder, to it at its address as set forth
in the Subscription Agreement, or at such other address or addresses
as may have been furnished in writing by such Stockholder.
(e) REMEDIES. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and
to exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for
13
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(f) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, no
amendment, modification, termination or cancellation of this Agreement shall be
effective unless made in writing signed by the Company and the Holders of a
majority of the shares of Registrable Shares; provided that no amendment may be
made to Sections 8 that adversely affects the rights of the Holders or to this
Section 9(f) unless agreed upon by the Company and the Holders of all the
Registrable Shares, and that provided that no amendment that materially and
adversely affects the rights of any Holder shall be made without the consent of
such Holder.
(g) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Shares pursuant to this Agreement may be assigned (but
only with all related obligations) by a Stockholder to any transferee (a
"Qualified Transferee") that is an Affiliate (as defined below) or, if not an
Affiliate, acquires from a Stockholder either (i) 100,000 or more Registrable
Shares or (ii) if less than 100,000 Registrable Shares are owned by a
Stockholder at the time of a transfer, all of the Registrable Shares owned by
such Stockholder, in either case in connection with the permitted transfer of
Registrable Shares. Such assignment shall not affect the rights of Holders
hereunder which shall remain in full force in accordance with the terms hereof.
Any transferring Stockholder shall provide the Company with prior written
notice of such transfer(s)/assignment(s); provided, however, that the failure
to provide such notice shall not be deemed to preclude assignment hereunder. As
used herein, "Affiliate" shall mean (i) a person or entity that, directly or
indirectly, through one or more intermediaries, controls or is controlled by,
or is under common control with, a Stockholder or (ii) if a Stockholder is a
partnership, a partner, retired partner, or estate of a partner or retired
partner, of such partnership, so long as such any transfer or recertification
of Registrable Shares is in accordance with the transferee's interest in such
partnership and is without consideration.
(h) SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(i) ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements relating to such subject matter.
(j) HEADINGS. The headings of this Agreement are for convenience only
and do not constitute a part of this Agreement.
(k) GOVERNING LAW. The construction, validity and interpretation of
this Agreement will be governed by the internal laws of the State of Delaware
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
(l) FURTHER ASSURANCES. Each party to this Agreement hereby covenants
and agrees, without the necessity of any further consideration, to execute and
deliver any and all such further documents and take any and all such other
actions as may be necessary or appropriate to carry out the intent and purposes
of this Agreement and to consummate the transactions contemplated hereby.
(m) COUNTERPARTS. This Agreement may be executed by facsimile and in
one or more counterparts, each of which shall be deemed to be an original, but
all of which shall be one and the same document.
(Signature Page Follows)
14
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
COMPANY:
-------
eVENTURES GROUP, INC.
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Vice President -- Business Development,
General Counsel and Secretary
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
[SIGNATURE PAGE FOR EACH STOCKHOLDER FOLLOWS]
15
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first written above.
LIBERTY MEDIA CORPORATION
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
16
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
CHASE EQUITY ASSOCIATES, LP
By: Chase Capital Partners, its general partner
By: /s/ XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: General Partner
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
17
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
XXXX CAPITAL PARTNERS VI, L.P.
By: Xxxx Capital Management, L.L.C., its managing
partner
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx, III
Title: Managing Member
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
18
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
PCP ASSOCIATES, L.P.
By: Xxxx Capital Management, L.L.C.,
its managing partner
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx, III
Title: Managing Member
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
19
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
BANCBOSTON CAPITAL INC.
By: /s/ XXX X. XXXXXXX
Name: Xxx X. Xxxxxxx
Title: Managing Director
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
20
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
X.X. XXXX CO., INC., as Nominee 2000-59
By: /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx, Xx.
Title: Vice President
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
21
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III LLC, its
General Partner
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Member
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
22
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
BLACKSTONE OFFSHORE CAPITAL
PARTNERS III L.P.
By: Blackstone Management Associates III LLC,
its General Partner
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Member
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
23
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P.
By: Blackstone Management Associates III LLC,
its General Partner
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Member
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
24
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
THE XXXXXXX XXXXX GROUP, INC.
By: /s/ XXXXXXX X XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
25
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
BRAZOS eVENTURES ACQUISITION, LLC
By: /s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx
Title: President
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
26
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
MAVERICK FUND LDC
By: /s/ XXXXXXXX XXXXXX
Name: Xxxxxxxx Xxxx
Title: Controller. Maverick Capital, Ltd.
Fund Advisor
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
27
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
MAVERICK FUND USA, LTD.
By: /s/ XXXXXXXX XXXXXX
Name: Xxxxxxxx Xxxxxx
Title: Controller. Maverick Capital, Ltd.
Fund Advisor
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
28
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
MAVERICK FUND II, LTD.
By: /s/ XXXXXXXX XXXXXX
Name:Xxxxxxxx Xxxxxx
Title:Controller. Maverick Capital, Ltd.
Fund Advisor
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
29
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
EDGEWATER PRIVATE EQUITY FUND III, L.P.
By: Edgewater III Management, L.P., its General
Partner
By: Xxxxxx Management, Inc., its General Partner
By: /s/ XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Vice President
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
30
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
XXXXX GLOBAL INVESTMENTS, LTD.
By: /s/ SAVVAS SAVVINDIS
Name: Savvas Savvindis
Title: Director of Operations
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
31
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
REMINGTON INVESTMENT STRATEGIES,
L.P.
By: /s/ SAVVAS SAVVINDIS
Name: Savvas Savvindis
Title: Director of Operations
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
32
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
MELLON VENTURES II, L.P.
By: MVMA II, L.P., its G.P.
By: MVMA, Inc., its G.P.
By: /s/ X.X. XXXXXXXXXX
Name: X.X. Xxxxxxxxxx
Title: Managing Director
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
33
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as
of the date first written above.
FIRST UNION MERCHANT BANKING 2000,
LLC
By: /s/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Managing Partner
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
34
SCHEDULE 1
STOCKHOLDER SHARES OF COMMON STOCK
----------- ----------------------
Chase Equity Associates, LP 217,391
Xxxx Capital Partners VI, L.P. 185,935
PCP Associates, L.P. 31,456
BancBoston Capital Inc. 173,913
X.X. Xxxx Co., Inc. as Nominee 2000- 130,435
59
Blackstone Family Investment 13,044
Partnership III X.X.
Xxxxxxxxxx Offshore Capital Partners 31,379
III X.X.
Xxxxxxxxxx Capital Partners III 172,968
Merchant Banking Fund L.P.
The Xxxxxxx Xxxxx Group, Inc. 86,956
Brazos eVentures Acquisition, LLC 217,391
Maverick Fund LDC 143,109
Maverick Fund USA Ltd. 61,805
Maverick Fund II, Ltd. 12,477
Edgewater Private Equity Fund III, 173,914
X.X.
Xxxxx Global Investments Ltd. 104,348
Remington Investment Strategies, 26,087
X.X.
Xxxxxx Ventures II, L.P. 217,391
First Union Merchant Banking 2000, 326,087
LLC -------
TOTAL 2,326,086
