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EXHIBIT 10.1
eVENTURES GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into effective as of the 5th day of December, 2000, by and among
eVENTURES GROUP, INC., a Delaware corporation (the "Company"), and the persons
and entities signatories hereto (collectively, the "Stockholders"), as holders
of (i) shares of common stock, par value $0.00002 per share, of the Company
("Common Stock") and (ii) shares of Series D Convertible Preferred Stock, par
value $0.00002 per share, of the Company ("Preferred Stock").
WITNESSETH:
WHEREAS, the Company and the Stockholders have entered into that
certain Subscription Agreement dated as of December __, 2000 (the "Subscription
Agreement"), pursuant to which the Stockholders acquired shares of Common Stock
and Preferred Stock in the amounts set forth on Schedule I hereto (the shares of
Common Stock acquired by such Stockholders are referred to herein as the "Common
Shares" and the shares of Preferred Stock acquired by such Stockholders are
referred to herein as the "Preferred Shares"); and
WHEREAS, in connection with the Subscription Agreement, the parties
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and in the Subscription Agreement, the sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS.
"Act" shall mean the Securities Act of 1933, as amended or any
successor Federal statute.
"Effectiveness Target Date" means January 1, 2002.
"Filing Date" means October 31, 2001.
"Holder" shall mean any Stockholder or Qualified Transferee
holding Registrable Shares.
"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.
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"Registrable Shares" shall mean, at any time, and with respect to
any Stockholder or Qualified Transferee (as defined in Section 9(g) below), any
Restricted Securities held by such Stockholder or Qualified Transferee. As to
any particular Registrable Shares, once issued, such Registrable Shares shall
cease to be Registrable Shares (1) when such Registrable Shares have been
registered under the Act, the Registration Statement in connection therewith has
been declared effective by the SEC and they have been disposed of pursuant to
and in the manner described in such effective Registration Statement, (2) when
such Registrable Shares are sold or distributed pursuant to Rule 144, (3) when
such Registrable Shares have ceased to be outstanding, or (4) when such
Registrable Shares have been transferred to a person or entity other than a
Qualified Transferee.
"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 below) contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Restricted Securities" shall mean, at any time and with respect
to any Stockholder or Qualified Transferee, the Common Shares and any Common
Stock received on or with respect to any of the Preferred Shares, including
Common Stock received by way of stock split or stock dividend or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization, which are held by such Stockholder or Qualified Transferee and
which theretofor have not been sold to the public pursuant to a Registration
Statement or transferred pursuant to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the Act or any
successor or similar rule thereto, as may be enacted by the SEC from time to
time.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency thereto.
2. SHELF REGISTRATION.
(a) Form S-3 Eligibility. The Company hereby covenants and agrees
that it shall use commercially reasonable efforts to prepare and file all such
filings in a timely manner and otherwise as required by the Act, the Exchange
Act and the rules and regulations promulgated under the Act and the Exchange
Act, from the date hereof and throughout the term of this Agreement and
otherwise use its commercially reasonable efforts to qualify for registration on
Form S-3 under the Act or any comparable successor form.
(b) Obligation to File. The Company agrees to file with the SEC,
as soon as practicable, but in no event later than the Filing Date, a
Registration Statement for a resale offering to be made on a continuous basis
pursuant to Rule 415 promulgated under the Act covering all of the Registrable
Shares (the "Shelf Registration"). The Shelf Registration shall be on Form S-3
under the Act or another appropriate form permitting registration of such
Registrable Shares for resale by the Holders of Registrable Shares in the manner
or manners
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designated by them. The Company shall use its commercially reasonable efforts to
cause the Shelf Registration to be declared effective pursuant to the Act as
promptly as practicable following the filing thereof, but in no event later than
the Effectiveness Target Date, and to keep the Shelf Registration continuously
effective under the Act during the term of this Registration Rights Agreement,
or such shorter period ending upon the earlier of (1) when all Registrable
Shares covered by the Shelf Registration have been sold in the manner set forth
and as contemplated in the Shelf Registration or pursuant to Rule 144
promulgated under the Act, (2) when there ceases to be outstanding any
Registrable Shares or (3) on the second anniversary of the Effectiveness Target
Date (the "Effectiveness Period").
(c) Maintenance of Effectiveness. The Company shall use its
commercially reasonable efforts to keep the Shelf Registration continuously
effective for the Effectiveness Period, by supplementing and amending the Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration, if required by the Act
or if reasonably requested by Holders of Registrable Shares covered by such
Registration Statement.
(d) Certain Limitations on Sales. Notwithstanding anything to the
contrary in (b) or (c) above, the Company may, by delivering written notice to
the Holders of Registrable Shares, prohibit offers and sales of Registrable
Shares pursuant to the Shelf Registration until a date not later than 90 days
after the date of such notice if (i) the Company is engaged in confidential
negotiations or other confidential business activities, disclosure of which
would be required in such Registration Statement (but which public disclosure
would not be required if offers and sales were not made pursuant to such
Registration Statement), and the Company determines in good faith that such
disclosure would be materially adverse to the Company and its stockholders
(provided, however, that upon the public disclosure by the Company of the
negotiations or business activities described above, the suspension of the use
of the Shelf Registration pursuant to this Section 2(d) shall cease and the
Company shall promptly notify Holders of Registrable Shares that dispositions of
Registrable Shares may be resumed) or (ii) the Company is required to file a
post effective amendment to such Shelf Registration. In no event may the Company
prohibit offers and sales of Registrable Shares pursuant to the Shelf
Registration (i) for a period of more than 90 days following the delivery by the
Company of the notice provided for in the first sentence of this Section 2(d) or
(ii) more than twice in any 12-month period.
3. PIGGYBACK REGISTRATIONS.
(a) Right to Piggyback. If the Company proposes to register any
of its securities under the Act (other than pursuant to (i) a registration
solely in connection with an employee benefit or stock ownership plan on Form
S-8 or any comparable or successor form, (ii) a registration solely in
connection with an acquisition consummated in a manner which would permit
registration of such securities to the public on Form S-4 or any comparable or
successor form or (iii) a Shelf Registration for use solely in connection with
future acquisitions), and the registration form to be used may be used for the
registration of Registrable Shares (a "Piggyback Registration"), the Company
will give prompt written notice to all Holders of Registrable Shares of its
intention to effect such a registration (each a "Piggyback Notice"). Subject to
Section 3(b)
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below, the Company will include in such registration all Registrable Shares that
Holders of Registrable Shares request the Company to include in such
registration by written notice given to the Company within twenty (20) days
after the date of sending of the Piggyback Notice.
(b) Priority on Primary Registrations. If a Piggyback
Registration relates to an underwritten public offering of equity securities by
the Company and the managing underwriter or underwriters for such offering
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number which can be
sold in an orderly manner in such offering within a price range acceptable to
the Company, the Company will include in such registration (i) first, the
securities proposed to be sold by the Company, (ii) second, the 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 other shareholders of the Company's securities and the managing
underwriter or underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in an orderly manner in such offering within a
price range acceptable to the persons (as defined below) initially requesting
such registration, the Company will include in such registration (i) first, the
securities requested to be included therein by the persons requesting such
registration, (ii) second (subject to Section 2(a)(iv) of that certain
Registration Rights Agreement dated September 22, 1999 between the Company and
the persons listed on Schedule I thereto, provided that such Section has not
been waived with respect to any other persons or entities who desire to
participate in such registration), the Registrable Shares and other securities
of the Company with piggyback registration rights that are pari passu with 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 (subject to Section 2(a)(iv) of that certain Registration Rights Agreement
dated September 22, 1999 between the Company and the persons listed on Schedule
I thereto, provided that such Section has not been waived with respect to any
other persons or entities who desire to participate in such registration), other
securities requested to be included in such registration.
4. REGISTRATION PROCEDURES.
Whenever Registrable Shares have been registered pursuant to this
Agreement, the Company will use its commercially reasonable efforts to effect
the registration and the sale of such Registrable Shares in accordance with the
intended method of distribution thereof and will as expeditiously as possible:
(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
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Shares in accordance with the intended method or methods of
distribution thereof and use its commercially reasonable efforts to
cause such Registration Statement to become effective;
(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 (A) for a period of up to six (6) months (with respect to
Piggyback Registrations) or (B) during the Effectiveness Period (with
respect to the Shelf Registration), and comply with the provisions of
the Act with respect to the disposition of all securities included in
such Registration Statement during such period in accordance with the
intended methods of distribution by the selling Holders thereof set
forth in such Registration Statement or supplement to such Prospectus;
(iii) Furnish to each selling Holder of Registrable Shares
such number of copies of such Registration Statement, each amendment
and supplement thereto (in each case including all exhibits), the
Prospectus included in such Registration Statement (including each
preliminary Prospectus) and such other documents as such selling Holder
may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such selling Holder, the Company consents
to the use of the Prospectus and any amendment or supplement thereto by
a seller of Registrable Shares and the underwriters, if any, in
connection with the offering and sale of the Registrable Shares covered
by the Prospectus and any amendment or supplement thereto;
(iv) Notify the selling Holders of Registrable Shares and the
managing underwriter or underwriters, if any, promptly and (if
requested by any such Stockholder) confirm such advice in writing, (A)
when a Prospectus, including any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective, (B) of any request by the Commission for
amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (D) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the
Registrable Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (E) of the
existence of any fact which results in a Registration Statement, a
Prospectus or any document incorporated therein by reference containing
an untrue statement of a material fact or omitting to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(v) Use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or "blue
sky" laws of such jurisdictions as any selling Holder reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such selling Holder to
consummate
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the disposition in such jurisdictions of the Registrable Shares owned
by such selling Holder, provided that the Company will not be required
(A) to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this subparagraph,
(B) to subject itself to taxation in any such jurisdiction, or (C) to
consent to general service of process in any such jurisdiction;
(vi) Notify each selling Holder of such Registrable Shares, at
any time when a Prospectus relating thereto is required to be delivered
under the Act, of the happening of any event referred to in clause
(iv)(E) of this Section 4, and, at the request of any such seller,
prepare a supplement to such Prospectus or a post-effective amendment
to such Registration Statement and furnish to each seller of
Registrable Shares a reasonable number of copies of such supplement or
amendment so that, as thereafter delivered to the purchasers of such
Registrable Shares, such Prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(vii) Use its commercially reasonable efforts to cause all
such Registrable Shares to be listed on each securities exchange on
which similar securities issued by the Company are then listed and to
be qualified for trading on each system on which similar securities
issued by the Company are from time to time qualified;
(viii) Provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such
Registration Statement and thereafter maintain such transfer agent and
registrar;
(ix) Cooperate with each seller of Registrable Shares and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold
pursuant to the Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Shares
are listed, shall be penned, lithographed or engraved, or produced by
any combination of such methods, on steel engraved borders, and in such
denominations and registered in such names as each seller of
Registrable Shares or the managing underwriters, if any, may request at
least two Business Days prior to the sale of Registrable Shares
pursuant to the Registration Statement;
(x) Otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission and
make available to its security holders, as soon as reasonably
practicable but no later than fifteen (15) months after the effective
date of the Registration Statement, an earnings statement covering a
period of twelve (12) months beginning after the effective date of the
Registration Statement, in a manner which satisfies the provisions of
Section 11(a) of the Act and Rule 158 thereunder;
(xi) 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
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included in such registration statement for sale in any jurisdiction,
the Company will use its commercially reasonable efforts promptly to
obtain the withdrawal of such order; and
(xii) Take all other steps reasonably necessary to effect the
registration of the Registrable Shares contemplated hereby.
Notwithstanding anything set forth herein, the Company shall be entitled to
withdraw a Registration Statement in its sole and exclusive discretion at any
time prior to its becoming effective.
5. REGISTRATION EXPENSES.
(a) Definition. The term "Registration Expenses" means any
expenses incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and filing fees,
listing fees, fees and expenses of compliance with securities or "blue sky"
laws, printing expenses, messenger and delivery expenses, internal expenses, the
fees and expenses of counsel for the Company (including the reasonable fees and
expenses of one counsel to all of the Holders of the Registrable Shares included
in such registration) and all independent certified public accountants,
underwriting fees and expenses (excluding discounts and commissions attributable
to the Registrable Shares, which shall be paid by the selling Holders out of the
proceeds of the offering) and the fees and expenses of any other persons (as
defined below) retained by the Company. For purposes of this Agreement, the term
"person" shall be construed as broadly as possible and shall include an
individual or natural person, a partnership (including a limited liability
partnership), a company, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated entity and a
governmental authority.
(b) Payment. The Company shall pay the Registration Expenses in
connection with any and all Shelf and Piggyback Registrations.
6. INDEMNIFICATION.
(a) Indemnification by the Company. The Company agrees to
indemnify, to the extent permitted by law, each Holder of Registrable Shares,
such Holder's general and limited partners, officers and directors and each
person who controls such Holder (within the meaning of the Act) against all
losses, claims, damages, liabilities and expenses caused by 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.
(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
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permitted by law, will indemnify the Company, its directors and officers and
each person who controls the Company (within the meaning of the Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the Registration
Statement, Prospectus or preliminary Prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any written information or affidavit so furnished in writing by
such Holder; provided, that the obligation to indemnify will be individual to
each Holder and will be limited to the net amount of proceeds received by such
Holder from the sale of Registrable Shares pursuant to such registration
statement.
(c) Notice; Defense of Claims. Any person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification;
provided, that the failure to so notify the indemnifying party shall not relieve
the indemnifying party of any liability that it may have to the indemnified
party hereunder (except to the extent that the indemnifying party is materially
prejudiced by reason of such failure) and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld or delayed). An indemnifying party who is not entitled to,
or elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one special and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
(d) Contribution. If the indemnification provided for in this
Section 5 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Registrable Shares or
(ii) if the allocation provided for by the foregoing clause (i) is not permitted
by applicable law, not only such relative benefits but also the relative fault
of the indemnifying party or parties on the one hand and the indemnified party
on the other hand in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission. The obligation to contribute will be
individual to each Holder of Registrable Shares and will be limited to the
amount by which the net amount of proceeds received by such Holder from the sale
of Registrable Shares exceeds the amount of
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losses, liabilities, damages, and expenses which such Holder has otherwise been
required to pay by reason of such statements or omissions.
(e) Survival. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the transfer of
securities.
(f) Underwriting Agreement. To the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with an underwritten public offering are in conflict with the
provisions of this Section 6, and the Holder indemnifying or seeking
indemnification is a party thereto, the provisions contained in the underwriting
agreement shall control.
(g) Non-exclusivity. The obligations of the Company under this
Section 6 shall be in addition to any liability which the Company may otherwise
have to any indemnified person under this Section 6 and shall be in addition to
any liability which such indemnified person may otherwise have to the Company.
The remedies provided in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No person may participate in any registration hereunder which is
underwritten unless such person (i) agrees to sell such person's securities on
the basis provided in any underwriting arrangements approved by the person or
persons entitled hereunder to approve such arrangements, (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements; provided that no Holder of Registrable Shares included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such Holder, such Holder's title to its Registrable Shares
and such Holder's intended method of distribution, and (iii) if requested by the
managing underwriter or underwriters or the Demanding Persons (as defined in the
Registration Rights Agreement, dated as of September 22, 1999, among the Company
and the persons and entities set forth on Schedule 1 thereto), agrees not to
sell Registrable Shares or other securities held by such Holder in any
transaction other than pursuant to such underwriting for such period following
the effective date of the registration statement relating to such underwriting
for such period as is determined by either the Board of Directors or the
Demanding Persons.
8. STOCKHOLDER LOCK-UP; AGREEMENT NOT TO SELL.
Prior to the Effectiveness Target Date, no Holder of Registrable
Shares may (i) make any public sale of Registrable Shares (pursuant to a
Registration Statement, Rule 144 or otherwise), (ii) engage in short sales or
hedging transactions with respect to the Registrable Shares or (iii) pledge or
otherwise encumber any Registrable Shares; provided, however, that
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nothing herein shall prevent any Holder (a) that is a partnership or corporation
from making a distribution of Registrable Shares to the partners or shareholders
thereof that are otherwise in compliance with applicable securities laws, so
long as such permitted distributees agree to be bound by the terms and
conditions of this Section 8; (b) that desires to sell any Registrable Shares in
a private transaction in compliance with applicable securities laws from
consummating such a sale so long as the purchaser in any private sale agrees in
writing to be bound by the restrictions set forth in this Section 8; or (c) that
is an individual, from making a transfer of Registrable Shares by gift, will or
the laws of descent and distribution, subject to the restrictions set forth in
this Section 8; provided further that nothing herein shall prevent any Holder
from including Registrable Shares in a Piggyback Registration under the terms
and conditions set forth in Section 3 above.
9. MISCELLANEOUS.
(a) Information and Reporting.
(i) The Company shall, at all times during which it is neither
subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b)
under the Exchange Act, upon the written request of any Stockholder,
provide in writing to such Stockholder and to any prospective
transferee of the Registrable Shares of such Stockholder the
information concerning the Company described in Rule 144A(d)(4) or any
successor rule under the Act ("Rule 144A Information"). The Company's
obligations under this Section 9(a)(i) shall at all times be contingent
upon receipt from the prospective transferee of Registrable Shares of a
written agreement to take all reasonable precautions to safeguard the
Rule 144A Information from disclosure to anyone other than persons who
will assist such transferee in evaluating the purchase of any
Registrable Shares.
(ii) The Company shall use its commercially reasonable efforts
to timely file such information, documents and reports as the
Commission may require or prescribe under Section 13 of the Exchange
Act. The Company shall use its commercially reasonable efforts to
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
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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. The Company
also covenants to use its commercially reasonable efforts, to the
extent that it is reasonably within its power to do so, to qualify for
the use of Form S-3.
(b) No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the Holders of Registrable Shares in this
Agreement, provided, however, that other purchasers of Preferred Stock from the
Company may become Holders and parties to this Agreement by executing and
delivering to the Company a signature page to this Agreement.
(c) Adjustments Affecting Registrable Shares. The Company will
not take any action, or permit any change to occur, with respect to its
securities for the purpose of materially and adversely affecting the ability of
the Holders of Registrable Shares to include such Registrable Shares in a
registration undertaken pursuant to this Agreement.
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
effectively given when delivered personally or by facsimile transmission or by
overnight delivery service or 72 hours after being mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
(i) If to the Company, c/o Stuart Chasanoff, 300 Crescent
Court, Suite 800, Dallas, Texas 75201, or at such other address or
addresses as may have been furnished in writing by the Company to the
Stockholders with a copy to (which shall not constitute notice): Weil,
Gotshal & Manges LLP, 100 Crescent Court, Suite 1300, Dallas, Texas
75201, Attention: Michael A. Saslaw, Esq. (Fax: 214-746-7777).
(ii) If to a Stockholder, to it at its address as set forth in
the Subscription Agreement, or at such other address or addresses as
may have been furnished in writing by such Stockholder.
(e) Remedies. Any person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for 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
two-thirds of the shares of Registrable Shares; provided that no amendment may
be made to Sections 8 that adversely affects the rights of the Holders or to
this Section 9(f) unless agreed upon by the Company and
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the Holders of all the Registrable Shares, and that provided that that no
amendment that materially and adversely affects the rights of any Holder shall
be made without the consent of such Holder.
(g) Assignment of Registration Rights. The rights to cause the
Company to register Registrable Shares pursuant to this Agreement may be
assigned (but only with all related obligations) by a Stockholder to any
transferee (a "Qualified Transferee") that is an Affiliate (as defined below)
or, if not an Affiliate, acquires from a Stockholder either (i) 100,000 or more
Registrable Shares or (ii) if less than 100,000 Registrable Shares are owned by
a Stockholder at the time of a transfer, all of the Registrable Shares owned by
such Stockholder, in either case in connection with the permitted transfer of
Registrable Shares. Such assignment shall not affect the rights of Holders
hereunder which shall remain in full force in accordance with the terms hereof.
Any transferring Stockholder shall provide the Company with prior written notice
of such transfer(s)/assignment(s); provided, however, that the failure to
provide such notice shall not be deemed to preclude assignment hereunder. For
purposes of this Section 9(h), an "Affiliate" shall mean (i) a person that,
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, a Stockholder or (ii) if a
Stockholder is a partnership, a partner, retired partner, or estate of a partner
or retired partner, of such partnership, so long as such any transfer or
recertification of Registrable Shares is in accordance with the transferee's
interest in such partnership and is without consideration.
(h) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(i) Entire Agreement. This Agreement embodies the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements relating to such subject matter.
(j) Headings. The headings of this Agreement are for convenience
only and do not constitute a part of this Agreement.
(k) Governing Law. The construction, validity and interpretation
of this Agreement will be governed by the internal laws of the State of Delaware
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
(l) Further Assurances. Each party to this Agreement hereby
covenants and agrees, without the necessity of any further consideration, to
execute and deliver any and all such further documents and take any and all such
other actions as may be necessary or appropriate to carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated
hereby.
(m) Counterparts. This Agreement may be executed by facsimile and
in one or more counterparts, each of which shall be deemed to be an original,
but all of which shall be one and the same document.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
COMPANY:
eVENTURES GROUP, INC.
By: /s/ Barrett Wissman
------------------------------------
Name: Barrett Wissman
----------------------------------
Title: President
---------------------------------
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[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
[SIGNATURE PAGE FOR EACH STOCKHOLDER FOLLOWS]
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Signature page to Registration Rights Agreement dated December 5, 2000 among
eVentures Group, Inc. the undersigned and certain of the other stockholders of
eVentures Group, Inc.
STOCKHOLDERS:
ROCK CREEK PARTNERS II, LTD.
By: Rock Creek Capital II, Ltd.
its General Partner
By: Rock Creek Capital, Inc.
its General Partner
By: /s/ M. Ashton Hudson
---------------------------------
Name: Ashton Hudson
Title: Vice President
CB PRIVATE EQUITY PARTNERS LP
By: CB Private Equity Partners LLC
its General Partner
By: CrossBow Ventures Inc.
its Manager
By: /s/ H. Hickman Powell
---------------------------------
Name: /s/ H. Hickman Powell
------------------------------
Title: Managing Director
-----------------------------
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
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SCHEDULE I
SHARES SUBSCRIBED FOR CONSIDERATION
SERIES D TELNEXT
COMMON STOCK PREFERRED STOCK CASH PREFERRED STOCK
------------ --------------- ----------- ---------------
Rock Creek 166,667 3,500 $ 3,500,000 333,334
CrossBow 283,334 3,500 $ 3,500,000 566,667