Exhibit 4.3 - REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of October 18, 2004, by and between IT&E International Group, Inc., a
Nevada corporation (the "Company"), and Laurus Master Fund, Ltd. (the
"Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser and the Company (as
amended, modified or supplemented from time to time, the "Securities Purchase
Agreement"), and pursuant to the Note and the Warrants referred to therein.
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein that
are defined in the Securities Purchase Agreement shall have the meanings
given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $0.01 per share.
"Effectiveness Date" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than one
hundred (100) days following the date hereof and (ii) with respect to each
additional Registration Statement required to be filed hereunder, a date no
later than thirty (30) days following the applicable Filing Date.
"Effectiveness Period" shall have the meaning set forth in Section
2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Filing Date" means, with respect to (i) the initial Registration
Statement required to be filed hereunder, a date no later than thirty (30) days
following the date hereof and (ii) with respect to shares of Common Stock
issuable to the Purchaser as a result of adjustments to the Fixed Conversion
Price made pursuant to Section 3.4 of the Note or Section 4 of the Warrant or
otherwise, thirty (30) days after the occurrence such event or the date of the
adjustment of the Fixed Conversion Price.
"Purchaser" or "Purchasers" means the Purchaser or any of its
affiliates or transferees to the extent any of them hold Registrable
Securities.
"Indemnified Party" shall have the meaning set forth in Section
5(c).
"Indemnifying Party" shall have the meaning set forth in Section
5(c).
"Note" has the meaning set forth in the Securities Purchase
Agreement.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock issued
upon the conversion of the Note and issuable upon exercise of the Warrants.
"Registration Statement" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute.
"Securities Purchase Agreement" means the agreement between the
parties hereto calling for the issuance by the Company of $5,000,000 of
convertible Note plus Warrants.
"Trading Market" means any of the NASD OTC Bulletin Board, NASDAQ
SmallCap Market, the Nasdaq National Market, the American Stock Exchange or the
New York Stock Exchange.
"Warrants" means the Common Stock purchase warrants issued
pursuant to the Securities Purchase Agreement.
2. Registration.
(a) On or prior to the Filing Date the Company shall prepare and file
with the Commission a Registration Statement covering the
Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415. The Registration Statement shall be
on Form S-3 (except if the Company is not then eligible to
register for resale the Registrable Securities on Form S-3, in
which case such registration shall be on another appropriate form
in accordance herewith). The Company shall cause the Registration
Statement to become effective and remain effective as provided
herein. The Company shall use its reasonable commercial efforts
to cause the Registration Statement to be declared effective under
the Securities Act no later than the Effectiveness Date. The
Company shall use its reasonable commercial efforts to keep the
Registration Statement continuously effective under the Securities
Act until the date which is the earlier date of when (i) all
Registrable Securities have been sold or (ii) all Registrable
Securities may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule
144(k) and are registered or qualified or exempt from registration
or qualification under the registration, permit or qualification
requirements of all applicable state securities laws, as
determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the
Company's transfer agent and the affected Purchasers (the
"Effectiveness Period").
(b) If: (i) the Registration Statement is not filed on or prior to the
Filing Date; (ii) the Registration Statement is not declared
effective by the Commission by the Effectiveness Date; (iii) after
the Registration Statement is filed with and declared effective by
the Commission, the Registration Statement ceases to be effective
(by suspension or otherwise) as to all Registrable Securities to
which it is required to relate at any time prior to the expiration
of the Effectiveness Period (without being succeeded immediately
by an additional registration statement filed and declared
effective) for a period of time which shall exceed 30 days in the
aggregate per year or more than 20 consecutive calendar days
(defined as a period of 365 days commencing on the date the
Registration Statement is declared effective); or (iv) the Common
Stock is not listed or quoted, or is suspended from trading on any
Trading Market for a period of three (3) consecutive Trading Days
(provided the Company shall not have been able to cure such
trading suspension within 30 days of the notice thereof or list
the Common Stock on another Trading Market); (any such failure or
breach being referred to as an "Event," and for purposes of clause
(i) or (ii) the date on which such Event occurs, or for purposes
of clause (iii) the date which such 30 day or 20 consecutive day
period (as the case may be) is exceeded, or for purposes of clause
(iv) the date on which such three (3) Trading Day period is
exceeded, being referred to as "Event Date"), then until the
applicable Event is cured, the Company shall pay to each Purchaser
an amount in cash, as liquidated damages and not as a penalty,
equal to 2.0% for each thirty (30) day period (prorated for
partial periods) on a daily basis of the original principal amount
of the Note. While such Event continues, such liquidated damages
shall be paid not less often than each thirty (30) days. Any
unpaid liquidated damages as of the date when an Event has been
cured by the Company shall be paid within three (3) business days
following the date on which such Event has been cured by the
Company.
(c) Within three (3) business days of the Effectiveness Date,
the Company shall cause its counsel to issue a blanket opinion in the
form attached hereto as Exhibit A or in such form as may be required by
the transfer agent, to the transfer agent stating that the shares are
subject to an effective registration statement and can be reissued free
of restrictive legend upon notice of a sale by the Purchaser and
confirmation by the Purchaser that it has complied with the prospectus
delivery requirements, provided that the Company has not advised the
transfer agent orally or in writing that the opinion has been withdrawn.
Copies of the blanket opinion required by this Section 2(c) shall be
delivered to the Purchaser within the time frame set forth above.
3. Registration Procedures. If and whenever the Company is required by the
provisions hereof to effect the registration of any Registrable
Securities under the Securities Act, the Company will, as expeditiously
as possible:
(a) prepare and file with the Commission the Registration Statement
with respect to such Registrable Securities, respond as promptly
as possible to any comments received from the Commission, and use
its commercially reasonable best efforts to cause the Registration
Statement to become and remain effective for the Effectiveness
Period with respect thereto, and promptly provide to the Purchaser
copies of all filings and Commission letters of comment relating
thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used
in connection therewith as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by the Registration
Statement and to keep such Registration Statement effective until
the expiration of the Effectiveness Period;
(c) furnish to the Purchaser such number of copies of the Registration
Statement and the Prospectus included therein (including each
preliminary Prospectus) as the Purchaser reasonably may request to
facilitate the public sale or disposition of the Registrable
Securities covered by the Registration Statement;
(d) use its commercially reasonable efforts to register or qualify the
Purchaser's Registrable Securities covered by the Registration
Statement under the securities or "blue sky" laws of such
jurisdictions within the United States as the Purchaser may
reasonably request, provided, however, that the Company shall not
for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in
any such jurisdiction;
(e) list the Registrable Securities covered by the Registration
Statement with any Trading Market on which the Common Stock of the
Company is then listed;
(f) immediately notify the Purchaser at any time when a Prospectus
relating thereto is required to be delivered under the Securities
Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained in such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing; and
(g) make available for inspection by the Purchaser and any attorney,
accountant or other agent retained by the Purchaser, all publicly
available, non-confidential financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by
the attorney, accountant or agent of the Purchaser.
4. Registration Expenses. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements
of counsel and independent public accountants for the Company, fees and
expenses (including reasonable counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, fees of the NASD,
transfer taxes, fees of transfer agents and registrars, fees of, and
disbursements incurred by, one counsel for the Purchasers (to the extent
such counsel is required due to Company's failure to meet any of its
obligations hereunder), are called "Registration Expenses". All selling
commissions applicable to the sale of Registrable Securities, including
any fees and disbursements of any special counsel to the Purchasers
beyond those included in Registration Expenses, are called "Selling
Expenses." The Company shall only be responsible for all Registration
Expenses.
5. Indemnification.
(a) In the event of a registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the Purchaser, and its officers,
directors and each other person, if any, who controls the
Purchaser within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which
the Purchaser, or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered
under the Securities Act pursuant to this Agreement, any
preliminary Prospectus or final Prospectus contained therein, or
any amendment or supplement thereof, or arise out of or are based
upon 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, and will reimburse the
Purchaser, and each such person for any reasonable legal or other
expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission so made
in conformity with information furnished by or on behalf of the
Purchaser or any such person in writing specifically for use in
any such document.
(b) In the event of a registration of the Registrable Securities under
the Securities Act pursuant to this Agreement, the Purchaser will
indemnify and hold harmless the Company, and its officers,
directors and each other person, if any, who controls the Company
within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the
Company or such persons may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact which was furnished in writing by the Purchaser to
the Company expressly for use in (and such information is
contained in) the Registration Statement under which such
Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final
Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon 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, and will reimburse the Company and each such person
for any reasonable legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action, provided, however, that the Purchaser
will be liable in any such case if and only to the extent that any
such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information
furnished in writing to the Company by or on behalf of the
Purchaser specifically for use in any such document.
Notwithstanding the provisions of this paragraph, the Purchaser
shall not be required to indemnify any person or entity in excess
of the amount of the aggregate net proceeds received by the
Purchaser in respect of Registrable Securities in connection with
any such registration under the Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of
the commencement of any action, such Indemnified Party shall, if a
claim for indemnification in respect thereof is to be made against
a party hereto obligated to indemnify such Indemnified Party (an
"Indemnifying Party"), notify the Indemnifying Party in writing
thereof, but the omission so to notify the Indemnifying Party
shall not relieve it from any liability which it may have to such
Indemnified Party other than under this Section 5(c) and shall
only relieve it from any liability which it may have to such
Indemnified Party under this Section 5(c) if and to the extent the
Indemnifying Party is prejudiced by such omission. In case any
such action shall be brought against any Indemnified Party and it
shall notify the Indemnifying Party of the commencement thereof,
the Indemnifying Party shall be entitled to participate in and, to
the extent it shall wish, to assume and undertake 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 and undertake the defense thereof,
the Indemnifying Party shall not be liable to such Indemnified
Party under this Section 5(c) for any legal expenses subsequently
incurred by such Indemnified Party in connection with the defense
thereof; if the Indemnified Party retains its own counsel, then
the Indemnified Party shall pay all fees, costs and expenses of
such counsel, provided, however, that, if the defendants in any
such action include both the indemnified party and the
Indemnifying Party and the Indemnified Party shall have reasonably
concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the
Indemnifying Party or if the interests of the Indemnified Party
reasonably may be deemed to conflict with the interests of the
Indemnifying Party, the Indemnified Party shall have the right to
select one separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other
expenses related to such participation to be reimbursed by the
Indemnifying Party as incurred.
(d) In order to provide for just and equitable contribution in the
event of joint liability under the Securities Act in any case in
which either (i) the Purchaser, or any officer, director or
controlling person of the Purchaser, makes a claim for
indemnification pursuant to this Section 5 but it is judicially
determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or
the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that
this Section 5 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part
of the Purchaser or such officer, director or controlling person
of the Purchaser in circumstances for which indemnification is
provided under this Section 5; then, and in each such case, the
Company and the Purchaser will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that the Purchaser
is responsible only for the portion represented by the percentage
that the public offering price of its securities offered by the
Registration Statement bears to the public offering price of all
securities offered by such Registration Statement, provided,
however, that, in any such case, (A) the Purchaser will not be
required to contribute any amount in excess of the public offering
price of all such securities offered by it pursuant to such
Registration Statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 10(f)
of the Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Common Stock of the Company is registered pursuant to Section
12(b) or 12(g) of the Exchange Act and, except with respect to
certain matters which the Company has disclosed to the Purchaser
on Schedule 4.21 to the Securities Purchase Agreement, the Company
has timely filed all proxy statements, reports, schedules, forms,
statements and other documents required to be filed by it under
the Exchange Act. The Company has filed (i) its Annual Report on
Form 10-K for its fiscal year ended December 31, 2003 and (ii) its
Quarterly Report on Form 10-Q for the fiscal quarters ended March
31, 2004 and June 30, 2004 (collectively, the "SEC Reports").
Each SEC Report was, at the time of its filing, in substantial
compliance with the requirements of its respective form and none
of the SEC Reports, nor the financial statements (and the notes
thereto) included in the SEC Reports, as of their respective
filing dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports
comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the Commission or other applicable rules and regulations with
respect thereto. Such financial statements have been prepared in
accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis during the periods involved (except
(i) as may be otherwise indicated in such financial statements or
the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be
condensed) and fairly present in all material respects the
financial condition, the results of operations and the cash flows
of the Company and its subsidiaries, on a consolidated basis, as
of, and for, the periods presented in each such SEC Report.
(b) The Common Stock is trading on the NASD Over the Counter Bulletin
Board ("OTCBB") and satisfies all requirements for the
continuation of such trading. The Company has not received any
notice that its Common Stock will be ineligible to trade on the
OTCBB (except for prior notices which have been fully remedied) or
that its Common Stock does not meet all requirements for such
trading.
(c) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf, has directly or indirectly made any
offers or sales of any security or solicited any offers to buy any
security under circumstances that would cause the offering of the
Securities pursuant to the Securities Purchase Agreement to be
integrated with prior offerings by the Company for purposes of the
Securities Act which would prevent the Company from selling the
Common Stock pursuant to Rule 506 under the Securities Act, or any
applicable exchange-related stockholder approval provisions, nor
will the Company or any of its affiliates or subsidiaries take any
action or steps that would cause the offering of the Securities to
be integrated with other offerings.
(d) The Warrants, the Note and the shares of Common Stock which the
Purchaser may acquire pursuant to the Warrants and the Note are
all restricted securities under the Securities Act as of the date
of this Agreement. The Company will not issue any stop transfer
order or other order impeding the sale and delivery of any of the
Registrable Securities at such time as such Registrable Securities
are registered for public sale or an exemption from registration
is available, except as required by federal or state securities
laws.
(e) The Company understands the nature of the Registrable Securities
issuable upon the conversion of the Note and the exercise of the
Warrant and recognizes that the issuance of such Registrable
Securities may have a potential dilutive effect. The Company
specifically acknowledges that its obligation to issue the
Registrable Securities is binding upon the Company and enforceable
regardless of the dilution such issuance may have on the ownership
interests of other stockholders of the Company.
(f) Except for agreements made in the ordinary course of business,
there is no agreement that has not been filed with the Commission
as an exhibit to a registration statement or to a form required to
be filed by the Company under the Exchange Act, the breach of
which could reasonably be expected to have a material and adverse
effect on the Company and its subsidiaries, or would prohibit or
otherwise interfere with the ability of the Company to enter into
and perform any of its obligations under this Agreement in any
material respect.
(g) The Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock for the full
conversion of the Note and exercise of the Warrants.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Purchaser, of any of their respective obligations under this
Agreement, each Purchaser or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law
and under this Agreement, including recovery of damages, will be
entitled to specific performance of its rights under this
Agreement.
(b) No Piggyback on Registrations. Except as and to the extent
specified in Schedule 7(b) hereto, neither the Company nor any of
its security holders (other than the Purchasers in such capacity
pursuant hereto) may include securities of the Company in any
Registration Statement other than the Registrable Securities, and
the Company shall not after the date hereof enter into any
agreement providing any such right for inclusion of shares in the
Registration Statement to any of its security holders. Except as
and to the extent specified in Schedule 7(b) hereto, the Company
has not previously entered into any agreement granting any
registration rights with respect to any of its securities to any
Person that have not been fully satisfied.
(c) Compliance. Each Purchaser covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Purchaser agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation
Event (as defined below), such Purchaser will forthwith
discontinue disposition of such Registrable Securities under the
applicable Registration Statement until such Purchaser's receipt
of the copies of the supplemented Prospectus and/or amended
Registration Statement or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus
may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. For purposes of this
Section 7(d), a "Discontinuation Event" shall mean (i) when the
Commission notifies the Company whether there will be a "review"
of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement (the Company
shall provide true and complete copies thereof and all written
responses thereto to each of the Purchasers); (ii) any request by
the Commission or any other federal or state governmental
authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the
issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement covering any or all
of the Registrable Securities or the initiation of any Proceedings
for that purpose; (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or
threatening of any Proceeding for such purpose; and/or (v) the
occurrence of any event or passage of time that makes the
financial statements included in such Registration Statement
ineligible for inclusion therein or any statement made in such
Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such
Registration Statement, Prospectus or other documents so that, in
the case of such Registration Statement or Prospectus, as the case
may be, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(e) Piggy-Back Registrations. If at any time during the Effectiveness
Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine
to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of
others under the Securities Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the
Securities Act) or their then equivalents relating to equity
securities to be issued solely in connection with any acquisition
of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then
the Company shall send to each Purchaser written notice of such
determination and, if within fifteen days after receipt of such
notice, any such Purchaser shall so request in writing, the
Company shall include in such registration statement all or any
part of such Registrable Securities such Purchaser requests to be
registered to the extent the Company may do so without violating
registration rights of others which exist as of the date of this
Agreement, subject to customary underwriter cutbacks applicable to
all holders of registration rights and subject to obtaining any
required the consent of any selling stockholder(s) to such
inclusion under such registration statement.
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the same shall
be in writing and signed by the Company and the Purchasers of the
then outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the
rights of certain Purchasers and that does not directly or
indirectly affect the rights of other Purchasers may be given by
Purchasers of at least a majority of the Registrable Securities to
which such waiver or consent relates; provided, however, that the
provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(g) Notices. Any notice or request hereunder may be given to the
Company or the Purchaser at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 7(g). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express
or other national overnight next day carrier (collectively,
"Courier") or telecopy (confirmed by mail). Notices and requests
shall be, in the case of those by hand delivery, deemed to have
been given when delivered to any party to whom it is addressed, in
the case of those by mail or overnight mail, deemed to have been
given three (3) business days after the date when deposited in the
mail or with the overnight mail carrier, in the case of a Courier,
the next business day following timely delivery of the package
with the Courier, and, in the case of a telecopy, when confirmed.
The address for such notices and communications shall be as
follows:
If to the Company: IT&E International Group, Inc.
000 Xxxxx Xxxxx Xx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx XX 00000
Attention: Chief Financial Officer
Facsimile: 000-000-0000
with a copy to:
Pillsbury Winthrop LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to a Purchaser: To the address set forth under such Purchaser
name on the signature pages hereto.
If to any other Person who is then the registered Purchaser:
To the address of such Purchaser as it appears in
the stock transfer books of the Company
or such other address as may be designated in writing hereafter in
accordance with this Section 7(g) by such Person.
(h) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each
Purchaser. The Company may not assign its rights or obligations
hereunder without the prior written consent of each Purchaser.
Each Purchaser may assign their respective rights hereunder in the
manner and to the Persons as permitted under the Notes and the
Securities Purchase Agreement with the prior written consent of
the Company, which consent shall not be unreasonably withheld.
(i) Execution and Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original and, all of which taken together shall
constitute one and the same Agreement. In the event that any
signature is delivered by facsimile transmission, such signature
shall create a valid binding obligation of the party executing (or
on whose behalf such signature is executed) the same with the same
force and effect as if such facsimile signature were the original
thereof.
(j) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall
be governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all
Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement shall
be commenced exclusively in the state and federal courts sitting
in the City of New York, Borough of Manhattan. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the
state and federal courts sitting in the City of New York, Borough
of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or
discussed herein, and hereby irrevocably waives, and agrees not to
assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such
Proceeding is improper. Each party hereto hereby irrevocably
waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby. If either party shall
commence a Proceeding to enforce any provisions of a Transaction
Document, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its reasonable attorneys fees
and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall
use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(m) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
IT&E INTERNATIONAL GROUP, INC. LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx X. Xxxxxxxx By:
------------------------------- --------------------------
Name: Xxxxx X. Xxxxxxxx Name:
Title: Chief Executive Officer Title:
Address for Notices:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Grin
Facsimile: 000-000-0000
EXHIBIT A
[Month __, 2004]
[Continental Stock Transfer
& Trust Company
Two Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx]
Re:[Company Name]. Registration Statement on Form [S-3]
Ladies and Gentlemen:
As counsel to [company name] , a Delaware corporation (the "Company"),
we have been requested to render our opinion to you in connection with the
resale by the individuals or entitles listed on Schedule A attached
hereto (the "Selling Stockholders"), of an aggregate of [amount]
shares (the "Shares") of the Company's Common Stock.
A Registration Statement on Form [S-3] under the Securities Act of 1933,
as amended (the "Act"), with respect to the resale of the Shares was declared
effective by the Securities and Exchange Commission on [date]. Enclosed is the
Prospectus dated [date]. We understand that the Shares are to be offered and
sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at any
time while the registration statement remains effective, it is our opinion that
the Shares have been registered for resale under the Act and new certificates
evidencing the Shares upon their transfer or re-registration by the Selling
Stockholders pursuant to the registration statement may be issued without
restrictive legend. We will advise you if the registration statement is not
available or effective at any point in the future.
Very truly yours,
[Company counsel]
SCHEDULE A
Selling Stockholder Shares
Being Offered
