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EXHIBIT 4.4.1
REGISTRATION RIGHTS AGREEMENT
This Agreement (the "Agreement") is made as of July 31, 1992 by and
among E-Z Serve Corporation, a Delaware corporation (the "Company"), and
Tenacqco Bridge Partnership, a partnership formed under the laws of New York
(the "Investor").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company and the Investor have entered into an Amended and
Restated Stock Purchase Agreement dated as of the date hereof (the "Amended
Purchase Agreement") in connection with the issuance and sale of certain shares
of (i) Common Stock, $ .01 par value (the "Common Stock") and (ii) Series E
Convertible Preferred Stock and Series D Convertible Preferred Stock (together,
the "Preferred Stock"), of the Company (collectively, the "Shares") and the
issuance of certain Warrants, as defined below, in consideration of the
contribution of funds by the Investor to the Company and the sale by the
Investor to the Company of all of the Investor's interest in the TOC Securities
(as defined in the Amended Purchase Agreement);
WHEREAS, each share of Preferred Stock issued in accordance with the
Amended Purchase Agreement is convertible into the number of shares of Common
Stock of the Company set forth in the Certificate of Designation of the
Preferred Stock; and
WHEREAS, it is a condition to the purchase of the Shares pursuant to
the Amended Purchase Agreement that the Company and the Investor enter into
this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements herein contained, the parties hereto agree as
follows:
1. Registration Rights.
1.1 Definitions.
(a) The terms "register," "registered," and "registration"
refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the
Securities Act of 1933, as amended (the "1933 Act"), and the automatic
effectiveness or the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (1) the shares of
Common Stock issued pursuant to the Amended Purchase Agreement, (2)
the Common Stock issued in exchange for the accrued but unpaid
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dividends on TOC Retail, Inc.'s Series B Preferred Stock pursuant to
the warrants to purchase the Company's Series D Convertible Preferred
Stock ("Warrants") which are issued pursuant to the Amended Purchase
Agreement (3) the Common Stock issued or issuable upon the conversion
of the shares of Preferred Stock and (4) any Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any
warrant, right, or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for or in
replacement of, such securities described in (1),(2), and (3) of this
paragraph; provided, however, that any shares of Common Stock
previously sold to the public pursuant to a registered public offering
or pursuant to an exemption from the registration requirements of the
1933 Act shall cease to be Registrable Securities;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by adding the number of shares of
Common Stock outstanding which are, and the number of shares of Common
Stock issuable pursuant to then exercisable or convertible securities
which upon issuance would be, Registrable Securities;
(d) The term "Holder" means any person owning or having
the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.11 hereof;
(e) The terms "Form S-3", "Form S-4" and "Form S-8" mean
such respective forms under the 1933 Act as in effect on the date
hereof or any successor registration forms to Form S-3, Form S-4 and
Form S-8, respectively, under the 1933 Act subsequently adopted by the
Securities and Exchange Commission ("SEC").
1.2 Request for Registration.
(a) If the Company shall receive at any time a written
request from the Holders of at least 50% of the Registrable Securities
then outstanding and entitled to registration rights under this
Section 1 (the "Initiating Holders") that the Company effect the
registration under the 1933 Act of not less than the lesser of (i) 20%
of the Registrable Securities then outstanding or (ii) the number of
Registrable Securities whose aggregate offering price is expected to
be at least $3,000,000, then the Company shall, within five days of
the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of this Section 1.2, use
its best efforts to effect such a registration as soon as practicable
and in any event to file within 120 days of the receipt of such
request a registration statement under the 1933 Act covering all the
Registrable Securities which the Holders shall in writing request
(such request to be made within 20 days of receipt
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of the notice given by the Company pursuant to this Section 1.2(a)) to
be included in such registration and to use its best efforts to have
such registration statement become effective.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their
request made pursuant to this Section 1.2 and the Company shall
include such information in the written notice referred to in
subsection 1.2(a). In such event, the right of any Holder to include
its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in
subsection 1.4(d)) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders after
consultation with the Company, provided, however, that the consent of
the Company is not required. Notwithstanding any other provision of
this Section 1.2, if, in the case of a registration requested pursuant
to Section 1.2(a), the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Initiating Holders shall so advise
all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of Registrable Securities
that may be included in the underwriting shall be allocated pro rata
among all Holders thereof desiring to participate in such underwriting
(according to the number of Registrable Securities then held by each
Holder). No Registrable Securities requested by a Holder to be
included in a registration pursuant to Section 1.2(a) shall be
excluded from the underwriting unless all securities other than
Registrable Securities are first excluded.
(c) The Company is obligated to effect only one
registration pursuant to Section 1.2(a).
(d) Notwithstanding the foregoing, (i) the Company shall
not be obligated to effect the filing of a registration statement
pursuant to this Section 1.2 during the six months following the
effective date of a registration statement pertaining to the
underwritten public offering of securities for the account of the
Company, or (ii) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 1.2 a certificate
signed by the President of the Company stating that in the good
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faith judgment of the Board of Directors of the Company, it would not
be in the best interests of the Company or its stockholders generally
for such registration statement to be filed, the Company shall have
the right to defer such filing for a period of not more than 90 days
after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize the right set forth in this
subsection (d)(ii) more than once in any twelve-month period.
1.3 Company Registration. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than the Holders) any of its
capital stock or other securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a registration
on Form S-8, or a registration on Form S-4 or any successor form), the Company
shall, at such time, promptly give each Holder written notice of such
registration but in no event less than 15 days before the anticipated filing
date. Upon the written request of any Holder given within 20 days after
mailing of such notice by the Company the Company shall, subject to the
provisions of Section 1.7, use its best efforts to cause a registration
statement covering all of the Registrable Securities that each such Holder has
requested to be registered to become effective under the 1933 Act. The Company
shall be under no obligation to complete any offering of its securities it
proposes to make pursuant to this Section 1.3 and shall incur no liability to
any Holder for its failure to do so.
1.4 Obligations of the Company. Whenever required under this
Section 1 to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible, prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for up to 180 days or until the Holders have informed the Company in
writing that the distribution of their securities has been completed; and
shall:
(a) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement, and use its best efforts
to cause each such amendment to become effective, as may be necessary
to comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by such registration statement.
(b) Furnish to the Holders and each underwriter such
reasonable number of copies of a prospectus, including a preliminary
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prospectus, in conformity with the requirements of the 1933 Act, and
such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(c) Use its best efforts to (i) register or qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders and (ii) cause such Registrable
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to
enable the selling Holders to consummate the registration of their
Registrable Securities; provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such state or jurisdiction.
(d) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter
of such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such an
agreement, including furnishing any opinion of counsel or entering
into a lock-up agreement reasonably requested by the managing
underwriter.
(e) Notify each Holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the 1933 Act, of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing and promptly file such
amendments and supplements which may be required pursuant to
subparagraph (b) of this Section 1.4 on account of such event and use
its best efforts to cause each such amendment and supplement to become
effective.
(f) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Section 1, on
the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to
this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through
underwriters on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated
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such date, of the counsel representing the Company for the purposes of
such registration, in form and substance as is customarily given by
company counsel to the underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities, if any, and (ii) a
letter dated such date, from the independent certified public
accountant of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if
any, and to the Holders requesting registration of Registrable
Securities.
(g) Apply for listing and use its best efforts to list
the Registrable Securities, if any, being registered on any national
securities exchange on which a class of the Company's equity
securities is listed or, if the Company does not have a class of
equity securities listed on a national securities exchange, apply for
qualification and use its best efforts to qualify the Registrable
Securities, if any, being registered for inclusion on the automated
quotation system of the National Association of Securities Dealers,
Inc.
(h) After the filing of the registration statement,
promptly notify the Holders of any stop order issued or threatened by
the SEC and take all reasonable steps required to prevent the entry of
such stop order and to remove it if entered.
(i) Enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions
as are reasonably required in order to expedite or facilitate the
registration of such Registrable Securities.
1.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 in
respect of the Registrable Securities of any selling Holder that such selling
Holders, if any, shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities.
1.6 Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions relating to Registrable Securities
incurred in connection with each registration, filings or qualifications
pursuant to Section 1.2(a) and each registration, filing or qualification
pursuant to Section 1.10, including (without limitation) all registration,
filing and qualification fees, printing and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders shall be borne by the
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Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration proceeding begun pursuant to Section 1.2(a) if
the registration request is subsequently withdrawn at any time at the request
of the Holders of a majority of the Registrable Securities to be registered (in
which case all participating Holders shall bear such expenses), unless the
Holders of a majority of the Registrable Securities agree to forfeit their
right to one demand registration pursuant to Section 1.2(a); provided further,
however, that if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known to the Holders of a majority of the Registrable Securities then
outstanding at the time of their request that makes the proposed offering
unreasonable in the good faith judgment of a majority in interest of the
Holders of the Registrable Securities then the Holders shall not be required to
pay any of such expenses and the right to one demand registration pursuant to
Section 1.2(a) shall not be forfeited. Underwriting discounts and commissions
relating to Registrable Securities will be borne and paid ratably by the
Holders of such Registrable Securities.
1.7 Underwriting Requirements. In connection with any offering
involving an underwriting of securities being issued by the Company, the
Company shall not be required under Section 1.3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it, and then only in such quantity, if any, as will not, in the opinion of
the underwriters, jeopardize the success of the offering by the Company. If
the managing underwriter for the offering shall advise the Company in writing
that the total amount of securities, including Registrable Securities,
requested by shareholders to be included in such offering exceeds the amount of
securities to be sold other than by the Company that can be successfully
offered, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
managing underwriter believes will not jeopardize the success of the offering,
provided, however, that the number of Registrable Securities to be included in
the offering shall not be reduced unless the securities to be included in such
offering for the account of any person other than the Company are also reduced
on a pro rata basis provided, however, that in no event shall the amount of
securities of (i) the selling Holders and (ii) those parties pursuant to
Section 1.7 of the Registration Rights Agreement dated March 25, 1992, between
the Company and the Investors named therein, included in the offering be
reduced below 50% (fifty percent) of the total amount of securities included in
such offering. For purposes of apportionment pursuant to this Section 1.7, for
any selling Holder which is a partnership or a corporation, the partners,
retired partners and shareholders of such Holder, or the estates and family
members of such partners and retired partners and any trusts for the benefit of
any of the foregoing persons, shall collectively with such Holder be deemed to
be one
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'selling Holder', and any pro rata reduction with respect to such 'selling
Holder' shall be based upon the aggregate amount of shares carrying
registration rights owned by entities and individuals included in such 'selling
Holder', as defined in this sentence.
1.8 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers, directors,
partners, agents and employees of each Holder, any underwriter (as
defined in the 1933 Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 Act"),
against any losses, claims, damages, or liabilities (joint or several)
to which they may become subject under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations (a
"Violation"): (i) any untrue statement or alleged untrue statement of
a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or (iii) any
violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities
law. The Company will reimburse each such Holder, officer, director,
partner, agent, employee, underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action. The indemnity agreement contained in this subsection 1.8(a)
shall not apply to amounts paid in settlement of any loss, claim,
damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable to a Holder in any such
case for any such loss, claim, damage, liability, or action (i) to the
extent that it arises out of or is based upon a Violation which occurs
in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by or on behalf
of such Holder, underwriter or controlling person or (ii) in the case
of a sale directly by a Holder of Registrable Securities (including a
sale of such Registrable Securities through any underwriter retained
by such Holder to engage in a distribution solely on behalf of such
Holder),
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such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and
corrected in a final or amended prospectus, and such Holder failed to
deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability in any case where
such delivery is required by the Securities Act.
(b) To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the
1933 Act, each agent and any underwriter for the Company, and any
other Holder selling securities in such registration statement or any
of its directors, officers, partners, agents or employees or any
person who controls such Holder or underwriter, against any losses,
claims, damages, or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, agent, or
underwriter or controlling person, or other such Holder or director,
officer or controlling person may become subject, under the 1933 Act,
the 1934 Act or other federal or state law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent
(and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by or on behalf
of such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer,
controlling person, agent or underwriter or controlling person, other
Holder, officer, director, partner, agent, employee, or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the
liability of any Holder hereunder shall be limited to the amount of
proceeds received by such Holder in the offering giving rise to the
Violation; and provided further that the indemnity agreement contained
in this subsection 1.8(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Holder, which
consent shall not be unreasonably withheld nor, in the case of a sale
directly by the Company of its securities (including a sale of such
securities through any underwriter retained by the Company to engage
in a distribution solely on behalf of the Company), shall the Holder
be liable to the Company in any case in which such untrue statement or
alleged untrue statement or omission or alleged omission was contained
in a preliminary prospectus and corrected in a final or amended
prospectus, and the Company failed to deliver a copy of the final or
amended prospectus at or prior to the confirmation of the sale of
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the securities to the person asserting any such loss, claim, damage or
liability in any case where such delivery is required by the 1933 Act.
(c) Promptly after receipt by an indemnified party under
this Section 1.8 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party
under this Section 1.8, deliver to the indemnifying party a written
notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly
noticed, to assume and control the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or
potential differing interests, as reasonably determined by either
party, between such indemnified party and any other party represented
by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.8 to the
extent of such prejudice, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this
Section 1.8.
(d) The obligations of the Company and the Holders under
this Section 1.8 shall survive the conversion, if any, of the Shares
of Preferred Stock and the completion of any offering of Registrable
Securities in a registration statement whether under this Section 1 or
otherwise.
1.9 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 and 144A promulgated
under the 1933 Act and any other rule or regulation of the SEC that may at any
time permit a Holder to sell securities of the Company to the public without
registration, and with a view to making it possible for Holders to register the
Registrable Securities pursuant to a registration on Form S-3, the Company
agrees to:
(a) use its best efforts to make and keep public
information available, as those terms are understood and defined in
Rule 144, at all times after 90 days after the effective date of the
first
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registration statement filed by the Company for the offering of its
securities to the general public;
(b) take such action, including the voluntary
registration of its Common Stock under Section 12 of the 1934 Act, as
is necessary to enable the Holders to utilize Form S-3 for the sale of
their Registrable Securities;
(c) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the 1933 Act and the 1934 Act;
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement
by the Company as to its compliance with the reporting requirements of
Rule 144, the 1933 Act and the 1934 Act (at any time after it has
become subject to such reporting requirements), or as to its
qualification as a registrant whose securities may be resold pursuant
to Form S-3 (at any time it so qualifies), (ii) a copy of the most
recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any
such securities without registration or pursuant to such form; and
(e) at all times during which the Company is neither
subject to the reporting requirements of Section 13 or 15(d) of the
1934 Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under
the 1934 Act, provide in written form, upon the written request of any
Holder, or a prospective purchaser of securities of the Company from
such Holder, all information required by Rule 144A(d)(4)(i) of the
General Regulations promulgated by the SEC under the 1933 Act ("144A
Information"); the Company further agrees, upon written request, to
cooperate with and assist any Holder or any member of the National
Association of Securities Dealers, Inc. system for Private Offerings
Resales and Trading through Automated Linkages ("PORTAL") in applying
to designate and thereafter maintaining the eligibility of the
Company's securities for trading through PORTAL. With respect to each
Holder, the Company's obligations under this Section 1.09(e) shall at
all times be contingent upon such Holder's obtaining from a
prospective purchaser an agreement to take all reasonable precautions
to safeguard the 144A Information from disclosure to anyone other than
employees of the prospective purchaser who require access to the 144A
Information for the sole purpose of evaluating its purchase of the
Company's securities.
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1.10 Form S-3 Registration. In case the Company shall receive from
any Holder or Holders a written request or requests that the Company effect a
registration on Form S-3 (or on any successor form to Form S-3 regardless of
its designation) and any related qualification or compliance with respect to
all or a part of the Registrable Securities owned by such Holder or Holders,
the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders; and
(b) use its best efforts to effect, as soon as
practicable, such registration, qualification or compliance as may be
so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders'
Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder
or Holders joining in such request as are specified in a written
request given within 20 days after receipt of such written notice from
the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or
compliance, pursuant to this Section 1.10 if: (1) Form S-3 (or any
successor form to Form S-3 regardless of its designation), is not
available for such offering by the Holders; (2) the aggregate net
offering price (after deduction of underwriting discounts and
commissions) of the Registrable Securities specified in such request
is not at least $500,000; (3) the Company has already effected one
registration on Form S-3 within the previous six-month period
(exclusive of registrations effected pursuant to Section 1.2 or 1.3
hereof); or (4) the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would not be in
the best interests of the Company or its stockholders generally for
such Form S-3 registration to be effected at such time, in which event
the Company shall have the right to defer the filing of the Form S-3
registration for a period of not more than 90 days after receipt of
the request of the Holder or Holders under this Section 1.10,
provided, however, that the Company shall not utilize this right more
than once in any twelve-month period.
1.11 Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Section 1 may be
assigned by any Holder to (i) a transferee of at least 500 shares of
Registrable Securities or some lesser number of Registrable Securities if such
lesser number represents all of the Registrable Securities issued to such
Holder, or (ii) an affiliate, partner or stockholder of such Holder
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or such transferee or an account managed or advised by the manager or adviser
of such Holder or such transferee.
1.12 Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company relating to registration rights unless such
agreement includes: (a) to the extent the agreement would allow such holder or
prospective holder to include such securities in any registration filed under
Section 1.2 or 1.3 hereof, a provision that such holder or prospective holder
may include such securities in any such registration only to the extent that
the inclusion of its securities will not reduce the amount of the Registrable
Securities of the Holders which would otherwise be included; (b) to the extent
the agreement would allow such holder or prospective holder to include such
securities in any registration effected pursuant to Section 1.2 or 1.3 hereof,
a provision that the rights of such holder to participate in such registration
shall permit participation on no greater level than that of the Holders; and
(c) no provision which would allow such holder or prospective holder to make a
demand registration which could result in such registration statement being
declared effective prior to the earlier of the dates set forth in subsection
1.2(a) or within six months after the effective date of any registration
effected pursuant to Section 1.
2. Miscellaneous.
2.1 Legend. Each certificate representing Registrable Securities
shall state therein:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT DATED AS OF JULY 31,
1992, BY AND BETWEEN THE CORPORATION AND THE INVESTOR NAMED THEREIN, A
COPY OF WHICH IS ON FILE AT THE OFFICES OF THE CORPORATION.
2.2 Notices. All notices, requests, consents and demands shall be
in writing and shall be personally delivered, mailed, postage prepaid,
telecopied or telegraphed, to the Company at:
E-Z Serve Corporation
Suite 500
10700 North Freeway
Houston, Texas 77037
Telecopy: (713) 591-9884
Attn: Neil McLaurin
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with a copy to:
Bracewell & Patterson
2900 South Tower Pennzoil Place
Houston, Texas 77002
Telecopy: (713) 221-1212
Attn: John L. Keffer
to the Investor at:
DLJ Bridge Finance, L.P.
140 Broadway
New York, New York 10005
Telecopy: (212) 504-4991
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telecopy: (212) 450-4800
Attn: Joseph Rinaldi
or such other address as may be furnished in writing to the other parties
hereto. All such notices, requests, demands and other communication shall,
when mailed (registered or certified mail, return receipt requested, postage
prepaid), personally delivered, or telegraphed, be effective four days after
deposit in the mails, when personally delivered, or when delivered to the
telegraph company, respectively, addressed as aforesaid, unless otherwise
provided herein and, when telecopied, shall be effective upon actual receipt.
2.3 Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the matters contemplated herein. This
Agreement supersedes any and all prior understandings or agreements as to the
subject matter of this Agreement.
2.4 Amendments, Waivers and Consents. Any provision in this
Agreement to the contrary notwithstanding, changes in or additions to this
Agreement may be made, and compliance with any covenant or provision herein set
forth may be omitted or waived, if the Company (i) shall obtain consent thereto
in writing from persons holding or having the right to acquire an aggregate of
at least sixty-six and two-thirds percent (66 2/3%) of the aggregate of the
Registrable Securities then outstanding and (ii) shall, in each such case,
deliver copies of such consent in writing to any Holders who did not execute
the same.
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2.5 Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the personal representatives, successors and
assigns of the respective parties hereto. The Company shall not have the right
to assign its obligations hereunder or any interest herein without obtaining
the prior written consent of the Holders in accordance with Section 2.4.
2.6 General. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. In this Agreement the singular includes the
plural, the plural includes the singular, the masculine gender includes the
neuter, masculine and feminine genders. This Agreement shall be governed by
and construed under the laws of the State of Texas.
2.7 Severability. If any provisions of this Agreement shall be
found by any court of competent jurisdiction to be invalid or unenforceable,
the parties hereby waive such provision to the extent that it is found to be
invalid or unenforceable. Such provision shall, to the maximum extent
allowable by law, be modified by such court so that it becomes enforceable,
and, as modified, shall be enforced as any other provision hereof, all the
other provisions hereof continuing in full force and effect.
2.8 Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one and the same instrument.
2.9 Specific Performance. The Company recognizes that the rights
of the Holders under this Agreement are unique, and, accordingly, the Holders
shall, in addition to such other remedies as may be available to them at law or
in equity, have the right to enforce their rights hereunder by actions for
injunctive relief and specific performance to the extent permitted by law.
This Agreement is not intended to limit or abridge any rights of the Holders
which may exist apart from this Agreement.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
E-Z SERVE CORPORATION
By: /s/ John T. Miller
-------------------------------
Title: Senior Vice President
TENACQCO BRIDGE PARTNERSHIP
By: DLJ CAPITAL CORP.
as General Partner
By: /s/ Paul Thompson III
-------------------------------
Title: Vice President
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