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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into on the 10th day of March, 2000, by and among eVentures Group, Inc.,
a Delaware corporation (the "Company"), and the persons and entities listed on
Schedule 1 attached hereto (collectively, the "Stockholders") and the persons
and entities acquiring shares of Common Stock as consideration in the Merger (as
defined below), as holders of shares of common stock, par value $0.00002 per
share, of the Company ("Common Stock").
W I T N E S S E T H:
WHEREAS, the Company, IGS Acquisition Corporation, a Texas corporation
("Acquisition Sub"), and certain of the stockholders of Internet Global
Services, Inc., a Texas corporation ("IGS"), have entered into that certain
Share Exchange Agreement, dated as of February 22, 2000 (the "Share Exchange
Agreement"), pursuant to which the Stockholders acquired shares of the Company's
Common Stock;
WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of even
date herewith, between Acquisition Sub and IGS (the "Merger Agreement"), IGS
merged with and into Acquisition Sub (the "Merger") and each issued and
outstanding share of common stock of IGS was converted into the right to receive
shares of Common Stock;
WHEREAS, in connection with the Share Exchange Agreement and the
Merger, 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 Share Exchange Agreement, the sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Registrable Shares. For purposes of this Agreement
"Registrable Shares" shall mean, at any time, and with respect to any
Stockholder, any person receiving shares of Common Stock in connection with the
Merger that has executed and delivered to the Company a joinder agreement in the
form attached hereto as Exhibit A, or any Qualified Transferee (as defined in
Section 9(g) below) (each such person being a "Securityholder"), the shares of
Common Stock held by such Securityholder which constitute Restricted Securities
(as defined below), and "Holder" shall mean any Securityholder holding
Registrable Shares. As to any particular Registrable Shares, once issued, such
Registrable Shares shall cease to be Registrable Shares on the earliest of (1)
the date on which 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,
and such Registrable Shares have been disposed of pursuant to and in the manner
described in such effective Registration Statement, (2) the date on which such
Registrable Shares are sold or distributed pursuant to Rule 144, (3) the date on
which such Registrable Shares have ceased to be outstanding, or (4) the date on
which such Registrable Shares have been transferred
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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 Securityholder, the shares of Common Stock and any other
securities which by their terms are directly or indirectly exercisable or
exchangeable for or convertible into Common Stock (other than stock options
granted to employees or directors of the Company in their capacity as such, or
Common Stock issuable upon the exercise thereof), and any securities received on
or with respect to any of the foregoing securities, which are held by such
Securityholder and which theretofore have not been sold to the public pursuant
to a Registration Statement or pursuant to Rule 144 under the Act. For purposes
of this Agreement, the term "Registration Statement" shall 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
herein) 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 Securities and Exchange Commission (the "Commission") from time
to time.
Section 2. Registrations on Form S-3. (a) The Company shall use its
reasonable best efforts to qualify for registration on Form S-3 or any
comparable or successor form or forms. At any time and from time to time after
the Company has qualified for the use of Form S-3 and prior to September 22,
2003, the Holders of a majority of the aggregate number of Registrable Shares
issued pursuant to the Share Exchange Agreement and the Merger Agreement shall
have the right to request one resale registration filing on Form S-3 in respect
of up to 25 percent of the aggregate number of shares of Common Stock issued
pursuant to the Share Exchange Agreement and the Merger Agreement; provided that
the Company shall not be required to effect a registration on Form S-3 pursuant
to this Section 2(a) unless the reasonably anticipated aggregate offering price
(net of underwriting discounts and commissions) for the Registrable Shares
proposed to be registered shall equal at least $1.5 million. Such requests shall
be in writing and shall state the number of Registrable Shares proposed to be
disposed of and the intended method of distribution of such shares by such
Holder or Holders. The Company shall be required to effect one (1) registration
pursuant to this Section 2(a); provided, however, that a registration shall not
count as such registration unless (i) the Holders of Registrable Shares are able
to register and, if the registration is a firm commitment public offering, sell
the Registrable Shares requested to be included in such registration, or (ii)
the Registration Statement relating to a registration is withdrawn or abandoned
at the request of the Holders of a majority of the Registrable Shares covered by
such Registration Statement (other than as a result of a material adverse change
to the Company or following a postponement by the Company pursuant to Section
2(b) herein).
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(b) Right to Defer Registration. The Company shall not be
obligated to effect any registration within ninety (90) days after the effective
date of a previous registration statement in which the Holders of Registrable
Shares participated or were given an opportunity to participate and declined to
do so. If, after a registration statement becomes effective, the Company advises
the Holders of Registered Shares that the Company considers it necessary in
accordance with the Company's obligations under applicable securities laws for
the registration statement to be amended, the Holders of such shares shall
suspend any further sales of their Registered Shares until the Company advises
them that the registration statement has been amended. The 90 day time period
referred to in Section 4 during which the registration statement must be kept
current after its effective date shall be extended for an additional number of
business days equal to the number of business days during which the rights to
sell shares were suspended pursuant to the preceding sentence.
Section 3. Piggyback Registrations. (a) Right to Piggyback. If the
Company (i) proposes to register any of its securities under the Act (other than
pursuant to (A) a registration solely in connection with an employee benefit or
stock ownership plan on Form S-8 or any comparable or successor form, (B) a
registration of securities solely in connection with an acquisition consummated
in a manner which would permit registration of such securities on Form S-4 or
any comparable or successor form, or (C) a "shelf" or similar registration for
use solely in connection with future acquisitions), or (ii) proposes to register
any of its securities under the Act pursuant to a demand registration made under
Section 2(a) of the Registration Rights Agreement of the Company entered into on
the 22nd day of September 1999 (a "Demand Registration"), and, in either case,
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), the Company
will include in such registration all shares of Registrable Shares which 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 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 Registrable Shares and the other
securities of the Company with piggyback registration rights that are pari passu
with the rights of the Holders requested to be included in such registration,
pro rata among the Holders of such Registrable Shares and the holders of such
other securities on the basis of the number of shares owned by each such Holder
or holder, and (iii) third, 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 Holders of the Company's securities and the managing underwriters
advise the Company in writing that in their opinion the
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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 Holders initially requesting such registration, the
Company will include in such registration (i) first, the securities requested to
be included therein by the Holders requesting such registration, (ii) second,
the Registrable Shares and the other securities of the Company with piggyback
registration rights that are pari passu with the rights of the Holders requested
to be included in such registration, pro rata among the Holders of such
Registrable Shares and the holders of such other securities on the basis of the
number of shares owned by each such Holder or holder, and (iii) third, other
securities requested to be included in such registration.
Section 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 best 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:
(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
best efforts to cause such Registration Statement to become effective;
provided that before filing a Registration Statement or prospectus or
any amendments or supplements thereto, the Company 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 90 days, 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;
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(iv) notify the selling Holders of Registrable Shares and the
managing underwriters, if any, promptly and (if requested by any such
Securityholder) 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 necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(v) use its best 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 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) 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;
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(ix) 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;
(x) in connection with an underwritten offering, use its best
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; and 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;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission;
(xii) permit any Holder of Registrable Shares which might be
deemed, in the sole and exclusive judgment of such Holder, to be an
underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and its
counsel should be included;
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(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 reasonable efforts promptly to obtain the withdrawal of such
order; and
(xiv) provide a CUSIP number for all Registrable Shares, not
later than the effective date of the applicable registration statement.
If any such registration or comparable statement refers to any Holder
by name or otherwise as the Holder of any securities of the Company and if, in
the sole and exclusive judgment of such Holder, such Holder is or might be
deemed to be a controlling person of the Company, such Holder shall have the
right to require (a) the inclusion in such registration statement of language,
in form and substance reasonably satisfactory to such Holder, to the effect that
the holding of such securities by such Holder is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, or (b)
in the event that such reference to such Holder by name or otherwise is not
required by the Act or any similar federal statute then in force, the deletion
of the reference to such Holder; provided that with respect to this clause (b)
such Holder shall furnish to the Company an opinion of counsel to such effect,
which opinion and counsel shall be reasonably satisfactory to the Company.
Section 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
(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 registrations on Form S-3 pursuant to Section 2(a), and any
and all Piggyback Registrations.
Section 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
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Holder (within the meaning of the Act) against all losses, claims, damages,
liabilities and expenses caused by 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. 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
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 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 6 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
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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, the provisions contained in the
underwriting agreement shall control.
Section 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 and
such Holder's intended method of distribution, and (iii) if requested by the
managing underwriter or underwriters or any Person requesting a Demand
Registration (the "Demanding Persons"), agrees not to sell Registrable Shares or
other securities held by such Person in any transaction other than pursuant to
such underwriting for such period following the effective date of the
registration statement relating to such underwriting as determined by either the
Board of Directors or the Demanding Persons; provided that no Holder of
Registrable Shares shall be required to enter into such an agreement unless each
other Holder of Registrable Shares, each director and executive officer of the
Company and each other Holder of at least one percent of the Common Stock then
outstanding enters into a substantially identical agreement relating to such
underwriting.
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Section 8. Securityholder Lock-Up; Agreement Not To Sell. During the
one-year period following 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) other than in compliance with the Holders'
rights to request one resale registration filing pursuant to Section 2(a) herein
and the Holders' rights to request a Piggyback Registration pursuant to Section
3(a) herein.
Section 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 Securities Exchange Act of 1934, as
amended (the "Exchange Act"), nor exempt from reporting pursuant to Rule
12g3-2(b) under the Exchange Act, upon the written request of any
Securityholder, provide in writing to such Securityholder and to any prospective
transferee of the Registrable Shares of such Securityholder the information
concerning the Company described in Rule 144A(d)(4) or any successor rule under
the Act ("Rule 144 Information"). Upon the written request of any
Securityholder, the Company shall cooperate with and assist such Securityholder
or any member of the National Association of Securities Dealers, Inc. PORTAL
system in applying to designate and thereafter maintain the eligibility of the
Registrable Shares for trading through PORTAL. 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) When it is first legally required to do so, the Company
shall register its Common Stock under Section 12 of the Exchange Act
and shall keep effective such registration and 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
(whether or not it shall then be required to do so) 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 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.
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(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.
(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 the Registrable Shares is merely
incidental.
(d) Notices. All notices, objections and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered (return receipt requested) or mailed by certified mail
(return receipt requested) or by Federal Express or another nationally
recognized courier service or by facsimile transmission upon electronic
confirmation of receipt thereof during normal business hours at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to the Company, to:
eVentures Group, Inc.
One Evertrust Plaza, 8th Floor
Jersey City, New Jersey 07302
Attention: Vice President and Chief Financial Officer
Telephone: (201) 200-5515
Facsimile Number: (201) 200-5532
with a copy to:
eVentures Group, Inc.
c/o HW Partners, L.P.
1601 Elm Street, 40th Floor
Dallas, Texas 75201
Attention: General Counsel
Telephone: (214) 720-1608
Facsimile Number: (214) 720-1667
11
12
and to:
White & Case LLP
200 S. Biscayne Blvd. Suite 4900
Miami, FL 33131
Attention: Thomas E Lauria
Telephone: (305) 371-2700
Facsimile Number: (305) 358-5744
If to a Stockholder, to it at its address as set forth in the
Share Exchange Agreement, and if to any other Securityholder,
at its address in the records of IGS, with a copy to:
Gardere & Wynne, L.L.P.
1601 Elm Street, Suite 3000
Dallas, Texas 75201
Attention: C. Robert Butterfield
Telephone: (214) 999-4534
Facsimile Number: (214) 999-3534
(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 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 Registrable Shares; provided that no amendment
may be made to Sections 8 or 9(f) of this Agreement unless agreed upon by the
Company and the Holders of all the Registrable Shares.
(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 Holder to any transferee
(a "Qualified Transferee") that acquires from a Holder either (i) 100,000 or
more Registrable Shares or (ii) if less than 100,000 Registrable Shares are
owned by a Holder at the time of a transfer, all of the Registrable Shares owned
by such Holder, in either case in connection with the permitted transfer of
Registrable Shares; provided that prior to such assignment, such Holder delivers
a joinder agreement in the form attached hereto as Exhibit B executed by such
Qualified Transferee to the Company. Such assignment shall not affect the rights
of Holders hereunder which shall remain in full force in accordance with the
terms hereof.
12
13
(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) No Third Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended or shall be construed to create any third party
beneficiaries, other than the provisions for the benefit of the underwriters
contained in Sections 3(b) and (c), 4(iv), (ix) and (x), 6(a) and 7.
(l) 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.
(m) 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.
(n) 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)
13
14
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
eVENTURES GROUP, INC.
By /s/ STUART J. CHASANOFF
--------------------------------
Name: Stuart J. Chasanoff
Title: Vice President of Business
Development, Secretary and
General Counsel
[SIGNATURE PAGE FOR EACH STOCKHOLDER FOLLOWS]
14
15
(PLEASE PRINT, EXCEPT FOR REQUIRED SIGNATURES):
STOCKHOLDER:
(for Entities)
- -------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
(for Individuals)
- ------------------------------------- ------------------------------
Printed Name Signature of Stockholder
If a married individual, the spouse of the
Stockholder must sign:
- ------------------------------------- ------------------------------
(Printed name of spouse) Signature of spouse
ADDRESS: PHONE (include area code):
(1) ( )
------------------------------ ----- ------------------------
------------------------------
(2) ( )
------------------------------ ----- ------------------------
------------------------------
TAXPAYER I.D. NUMBER OR SOCIAL SECURITY NUMBER OF EACH STOCKHOLDER:
Entity:
------------------------------
Taxpayer Identification Number
Individual:
Social Security Number (1)
--------------------------------
Social Security Number (2)
--------------------------------
15
16
SCHEDULE 1
to Registration Rights Agreement
Shares of Common Stock of eVentures Group, Inc.
Total Shares Issued by
Name of Shareholder eVentures Group, Inc.
- ------------------------------------------------ ----------------------
Aberdeen Investment Management, Inc. 12416
Everett Airington 83798
Airington, Custodian for Amy Caitlin 7224
Christopher Airington 6501
Mark Airington 13725
Albertson Properties 46222
Ambrosio - JWTROS Jeffrey M. & Frances M. 9030
Argus Capital Corporation 722
Joseph B. & Bonnie J. Ballem 3612
Bruce Begia 7884
Grady B. Booker 5056
Jon Box 5159
Bill R. Brandon 1666
George J. Brooks 4515
Jack J. Brooks 3612
Glenn Brovont 7224
Bill Butler 2889
Sharon Butler 1444
Carrington Shaw Investment Co. 30960
Andrea Dee Shaw GS Trust 10320
Jeffrey Glenn Shaw GS Trust 10319
Victoria Carrington Shaw GS Trust 10320
Dr. Jerry Cochran 3612
John H. Cole 2058
Joseph B. Cole 2058
Sidney M. Cole 16522
Mark Collins 14448
Don Cottinggame 14448
Timothy Chapin 1444
Peter C. Cook Trust 14448
Peter B. Dauterman Children's Education Trust 69590
Peter B. Dauterman Family Trust 213361
Dauterman Family Irrevocable Trust 12280
Jim and Jan Dauterman Living Trust 2408
Peter B. Dauterman 3648
Page 1
17
SCHEDULE 1
to Registration Rights Agreement
Shares of Common Stock of eVentures Group, Inc.
Total Shares Issued by
Name of Shareholder eVentures Group, Inc.
- ------------------------------------------------ ----------------------
Pamela Davison 36120
William Davison 198660
Derek Del Carpio 722
pledged as collateral to IGS 23607
Michele G. Elliot 722
Rob Ellis 3612
Joshua English, pledged as collateral to IGS 5725
Aaron Forsyth, pledged as collateral to IGS 3649
Robert Gordon 10836
The Wilmington Institute 7224
Michael Gorton 225032
Traci Gorton 186419
Robert S. Grant 722
Susan L. Grant Living Trust 1444
William B. Grant 722
William F. Grant Living Trust 3612
David Greer 1083
Sean Halleck 10836
pledged as collateral to IGS 13727
Don Henley 246060
JSM Investments, Inc. 722
John F. Hoekstra Rev. Trust 3612
Gary Houle 2889
Fredrick Johnson 2528
pledged as collateral to IGS 20813
David Kaseman 20335
William Kitchen 7224
Steven L. Korby 8376
Rick Lancaster 7224
Link Family Ltd. Partnership 110166
Shannan Lynes 7224
pledged as collateral to IGS 20462
Patrick Mackey 17157
David Manley 47197
Todd Manning 16178
Page 2
18
SCHEDULE 1
to Registration Rights Agreement
Shares of Common Stock of eVentures Group, Inc.
Total Shares Issued by
Name of Shareholder eVentures Group, Inc.
- ------------------------------------------------ ----------------------
Sara McKibben 2167
Thomas McGuffey, pledged as collat. 7036
Daniel M. Mehney 1444
David M. Mehney 1444
David P. Mehney 7224
David Mehney Land Company 3612
David P. & Linda M. Mehney Foundation 3612
G. Thomas Mehney 1444
James N. Mehney 1444
William P. Mehney 1444
A.J. Melillo 55728
Jennifer Mercer 722
pledged as collateral to IGS 15656
Dennis Meyer 1806
John P. Morgan 3612
Nicholas Morgan 11558
pledged as collateral to IGS 17515
Robin Newberry 8678
Ohana Venture Fund, L.P. 50502
David B. and Elaine B. Osowski 2580
William F. Peterson 7224
Susan Phillips (aka Susan Odom) 9030
Terry Phillips 17698
pledged as collateral to IGS 19012
Jessica Prose 2167
pledged as collateral to IGS 16654
Johnathan Ragsdale, pledged as collateral to IGS 703
Daisy Reese 2333
Susan B. Reese 38079
Scott and Angela Schlemmer 7224
Donald C. Schutt 3612
Martin Slagter 5165
Carolyn Smith 7224
Cole Smith 169824
Craig B. Smith 7224
Page 3
19
SCHEDULE 1
to Registration Rights Agreement
Shares of Common Stock of eVentures Group, Inc.
Total Shares Issued by
Name of Shareholder eVentures Group, Inc.
- ------------------------------------------------ ----------------------
Dana Colle 1589
Mike Stieglitz 32471
Tatum CFO Partners, LLP 8127
Jeb Terry 3448
Steven H. Thomas 2063
Jason Wade, pledged as collateral to IGS 4515
Suzan Witherell 3038
Dorothy Whitehead 3612
pledged as collateral to IGS 6610
Emily Woodall 20335
Kevin Young 11558
pledged as collateral to IGS 13736
- ------------------------------------------------ -------
TOTAL 2551087
=======
Page 4
20
Exhibit A
to Registration Rights Agreement
JOINDER AGREEMENT
March [__], 2000
To the parties to the
Registration Rights Agreement
dated as of March [__], 2000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement dated as of
March [__], 2000 (the "Registration Rights Agreement") among eVentures Group,
Inc. and the persons and entities signatories thereto and each other person who
has or shall become a party to the Registration Rights Agreement as provided
therein. Capitalized terms used herein and not defined have the meanings
ascribed to them in the Registration Rights Agreement.
The undersigned has acquired [_______] shares of Common Stock as
consideration with respect to [___] shares of common stock of Internet Global
Services, Inc. The undersigned understands that upon execution of this joinder
agreement, the undersigned will be deemed a Securityholder with all of the
rights, privileges, duties and obligations of a Securityholder under the
Registration Rights Agreement. In consideration of the covenants and agreements
contained in the Registration Rights Agreement, the undersigned hereby confirms
and agrees that it shall be bound as a Securityholder under the Registration
Rights Agreement.
This letter shall be construed and enforced in accordance with the laws
of the State of Delaware.
Very truly yours,
[Merger Participant]
By
----------------------------------
Name:
Title:
Acknowledged and Agreed
this ___ day of March, 2000
eVENTURES GROUP, INC.
By
----------------------------------
Name: Stuart J. Chasanoff
Title: Vice President of Business
Development, Secretary and
General Counsel
21
Exhibit B
to Registration Rights Agreement
FORM OF JOINDER AGREEMENT
March [__], 2000
To the parties to the
Registration Rights Agreement
dated as of March [__], 2000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement dated as of
March [__], 2000 (the "Registration Rights Agreement") among eVentures Group,
Inc. and the persons and entities signatories thereto and each other person who
has or shall become a party to the Registration Rights Agreement as provided
therein. Capitalized terms used herein and not defined have the meanings
ascribed to them in the Registration Rights Agreement.
The undersigned intends to acquire [_______] shares of Common Stock
from [__________], a Holder of Registrable Securities. The undersigned
understands that it is a condition to the effectiveness of such transfer that
the undersigned agrees that it shall be bound, to the same extent and in the
same manner as such Holder, by all of the provisions of the Registration Rights
Agreement. In consideration of the covenants and agreements contained in the
Registration Rights Agreement, the undersigned hereby confirms and agrees that
it shall be bound, to the same extent and in the same manner as such Holder, by
all of the provisions of the Registration Rights Agreement.
This letter shall be construed and enforced in accordance with the laws
of the State of Delaware.
Very truly yours,
[Qualified Transferee]
By
-------------------------------
Name:
Title:
Acknowledged and Agreed
this ___ day of March, 2000
eVENTURES GROUP, INC.
By
-------------------------------
Name:
Title: