EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of the 16th day of December, 2003, by and between Capital Growth
Systems, Inc., a Florida corporation (the "Company"), and the holders of the
Company's Common Stock (referred to herein individually as a "Holder," and
collectively as "Holders"), who have purchased their shares pursuant to an
offering of Common Stock which commenced on December 10, 2003 (the "Offering").
WITNESSETH:
WHEREAS, Holders have agreed to purchase shares of common stock of the
Company, $0.0001 par value (the "Common Stock"), pursuant to a Subscription
Agreement between the Company and each Holder in connection with a private
placement of the Common Stock by the Company, the shares so purchased are
hereinafter referred to as the "Shares;"
WHEREAS, as additional consideration for the purchase of the Shares by
the Holders, the Company desires to grant to Holders registration rights with
respect to the Common Stock;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. (a) Registration. The Company shall, as promptly as practicable, and
in any event not later than sixty (60) days after receipt of audited financial
statements of Nexvu for calendar years 2002 and 2003, prepare and file with the
Commission a registration statement sufficient to permit the public offering and
sale of the Registrable Securities and will use its best efforts through its
officers, directors, auditors, and counsel to cause such registration statement
to become effective as promptly as practicable; provided, however, no such
registration statement shall be filed prior to completion of the Offering.
As used herein, "Registrable Securities" shall mean: (i) the
shares of Common Stock acquired or to be acquired by the Holders pursuant to the
Offering which have not been previously sold pursuant to a registration
statement or Rule 144 promulgated under the Securities Act of 1933, as amended
(the "Securities Act"); and (ii) any Common Stock issued (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued)
by way of a stock split, stock dividend, recapitalization, merger or other
distribution with respect to, or in exchange for, or in replacement of, the
Shares.
(b) Definition of Expenses.
(i) "Registration Expenses" shall mean all expenses
incurred by the Company in complying with Section 1 hereof, including,
without limitation, all registration, filing and qualification fees,
underwriters expense allowances, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses
(but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company).
(ii) "Selling Expenses" shall mean all underwriting
discounts and selling commissions applicable to the sale of the
Registrable Securities in the registration and all fees and
disbursements of any special counsel (other than the Company's regular
counsel) for any Holder (but excluding the compensation of regular
employees of the Company which shall be paid in any event by the
Company).
(c) Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to Section 1(a) shall be borne by the Company.
(d) In the event of a registration pursuant to the provisions
of this Section 1, the Company shall use its best efforts to cause the
Registrable Securities so registered to be registered or qualified for sale
under the securities or blue sky laws of such jurisdictions as the Holder may
reasonably request; provided, however, that
the Company shall not be required to qualify to do business in any state by
reason of this Section 1(d) in which it is not otherwise required to qualify to
do business.
(e) In the event of a registration pursuant to the provisions
of this Section 1, the Company shall prepare and file with the Commission a
registration statement with respect to the Registrable Securities requested to
be registered and use its best efforts to cause such registration statement to
become effective, and shall keep effective any registration or qualification
contemplated by this Section 1 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Holder to complete the offer and sale of the
Registrable Securities covered thereby. The Company shall in no event be
required to keep any such registration or qualification in effect for a period
in excess of twelve (12) months from the date on which the Holder is first free
to sell all such Registrable Securities; provided, however, that, if the Company
is required to keep any such registration or qualification in effect with
respect to securities other than the Registrable Securities beyond such period,
the Company shall keep such registration or qualification in effect as it
relates to the Registrable Securities for so long as such registration or
qualification remains or is required to remain in effect in respect of such
other securities.
(f) In the event of a registration pursuant to the provisions
of this Section 1, the Company shall promptly furnish to the Holder such number
of copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of copies
of each prospectus contained in such registration statement and each supplement
or amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Securities Act and the rules and regulations
thereunder, and such other documents, as the Holder may reasonably request to
facilitate the disposition of the Registrable Securities included in such
registration.
(g) In the event of a registration pursuant to the provisions
of this Section 1, the Company shall promptly furnish the Holder with an opinion
of its counsel to the effect that (i) the registration statement has become
effective under the Securities Act and no order suspending the effectiveness of
the registration statement, preventing or suspending the use of the registration
statement, any preliminary prospectus, any final prospectus, or any amendment or
supplement thereto has been issued, nor has the Commission or any securities or
blue sky authority of any jurisdiction instituted or threatened to institute any
proceedings with respect to such an order, (ii) the registration statement and
each prospectus forming a part thereof (including each preliminary prospectus),
and any amendment or supplement thereto, comply as to form with the Securities
Act and the rules and regulations thereunder, and (iii) such counsel has no
knowledge of any material misstatement or omission in such registration
statement or any prospectus, as amended or supplemented. The opinions described
in clauses (ii) and (iii) of the preceding sentence shall be delivered only if
the registration is made pursuant to an underwritten public offering and the
underwriter requires similar opinions to be delivered by Company counsel as a
closing condition. In such an underwritten offering, if required by the
underwriter, the opinion also shall state the jurisdictions in which the
Registrable Securities have been registered or qualified for sale pursuant to
the provisions of Section 1(f).
(h) The Company shall notify the Holder promptly when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed.
(i) The Company shall promptly notify the Holder at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, would include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing, and at the reasonable request
of the Holder prepare and furnish to it such number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities or securities, such
prospectus shall not include an untrue statement of a material fact or omit 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 under which
they were made.
2. Indemnification.
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(a) Subject to the conditions set forth below, the Company
agrees to indemnify and hold harmless the Holders, their officers, directors,
partners, employees, agents, and counsel, and each person, if any, who controls
any such person within the meaning of Section 15 of the Act or Section 20(a) of
the Securities Exchange Act, from and against any and all loss, liability,
charge, claim, damage, and expense whatsoever (which shall include, for all
purposes of this Section 2, but not be limited to, attorneys' fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with:
(i) any untrue statement or alleged untrue statement
of a material fact contained: (A) in any registration statement,
preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto,
relating to the sale of any of the Registrable Securities; or (B) in
any application or other document or communication (in this Section 2
collectively called an "application") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to register or qualify
any of the Registrable Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities exchange; or any
omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements made therein not
misleading, unless such statement or omission was made in reliance upon
and in conformity with written information furnished to the Company
with respect to the Holder by or on behalf of such person expressly for
inclusion in any registration statement, preliminary prospectus, or
final prospectus, or any amendment or supplement thereto, or in any
application, as the case may be; or
(ii) any breach of any representation, warranty,
covenant, or agreement of the Company contained in this Agreement. The
foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have, including liabilities arising under
this Agreement.
(b) If any action is brought against any Holder or any of its
officers, directors, partners, employees, agents, or counsel, or any controlling
persons of such person (an "indemnified party") in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify the Company in writing of the
institution of such action (the failure to notify the Company within a
reasonable time of the commencement of any such action, to the extent
prejudicial to the Company's ability to defend such action, shall relieve the
Company of liability to the indemnified party pursuant to this Section 2(a), but
the failure so to notify shall not relieve the Company from any liability other
than pursuant to this Section 2(a)) and the Company shall promptly assume the
defense of such action, including the employment of counsel (reasonably
satisfactory to such indemnified party or parties), provided that the
indemnified party shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense of
such action or the Company shall not have promptly employed counsel reasonably
satisfactory to such indemnified party or parties shall have reasonably
concluded that there may be one or more legal defenses available to it or them
or to other indemnified parties which are different from or additional to those
available to the Company, in any of which events such fees and expenses shall be
borne by the Company and the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties. Anything
in this Section 2 to the contrary notwithstanding, the Company shall not be
liable for any settlement of any such claim or action effected without its
written consent, which shall not be unreasonably withheld. The Company shall
not, without the prior written consent of each indemnified party that is not
released as described in this sentence, settle or compromise any action, or
permit a default or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, in respective of which indemnity may
be sought hereunder (whether or not any indemnified party is a party thereto),
unless such settlement, compromise, consent, or termination includes an
unconditional release of each indemnified party from all liability in respect of
such action. The Company agrees promptly to notify the Holder of the
commencement of any litigation or proceedings against the Company or any of it
officers or directors in connection with the sale of any Registrable Securities
or any preliminary prospectus, prospectus, registration statement, or amendment
or supplement thereto, or any application relating to any sale of any
Registrable Securities.
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(c) The Holder agrees to indemnify and hold harmless the
Company, each director of the Company, each officer of the Company who shall
have signed any registration statement covering Registrable Securities held by
the Holder, each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and its
or their respective counsel, to the same extent as the foregoing indemnify from
the Company to the Holder in Section 2(a), but only with respect to statements
or omissions, if any, made in any registration statement, preliminary
prospectus, or final prospectus (as from time to time amended and supplemented),
or any amendment or supplement thereto, or in any application, in reliance upon
and in conformity with written information furnished to the Company with respect
to the Holder by or on behalf of the Holder, expressly for inclusion in any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. If
any action shall be brought against the Company or any other person so
indemnified based on any such registration statement, preliminary prospectus, or
final prospectus or any amendment or supplement thereto, or in any application,
and in respect of which indemnity may be sought against the Holder pursuant to
this Section 2(b), the Holder shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall have the
rights and duties given to the indemnified parties, by the provisions of Section
2(a). Notwithstanding the foregoing, the liability of each Holder under this
Section 2 shall be limited to an amount equal to the proceeds to such Holder of
Registrable Securities sold as contemplated herein.
(d) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 2(a) or
Section 2(b) (subject to the limitations thereof) but it is found in a final
judicial determination, not subject to further appeal, that such indemnification
may not be enforced in such case, even though this Agreement expressly provides
for indemnification in such cases, or (ii) any indemnified or indemnifying party
seeks contribution under the Securities Act, the Exchange Act or otherwise, then
the Company (including for this purpose any contribution made by or on behalf of
any director of the Company, any officer of the Company who signed any such
registration statement, any controlling person of the Company, and its or their
respective counsel), as one entity, and each Holder as a second entity, shall
contribute to the losses, liabilities, claims, damages, and expenses whatsoever
to which any of them may be subject, (after contribution from others) on the
basis of relevant equitable considerations such as the relative fault of the
Company and such Holder in connection with the facts which resulted in such
losses, liabilities, claims, damages, and expenses. The relative fault, in the
case of an untrue statement, alleged untrue statement, omission, or alleged
omission shall be determined by, among other things, whether such statement,
alleged statement, omission, or alleged omission relates to information supplied
by the Company or by such Holder, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement,
alleged statement, omission, or alleged omission.
The Company and the Holders agree that it would be unjust and
inequitable if the respective obligations of the Company and the Holders for
contribution were determined by pro rata or per capita allocation of the
aggregate losses, liabilities, claims, damages, and expenses (even if the
Holders and the other indemnified parties were treated as one entity for such
purpose) or by any other method of allocation that does not reflect the
equitable considerations referred to in this Section 2(c). Notwithstanding
anything to the contrary contained herein, the liability of each Holder under
this Section 2(c) shall be limited to an amount equal to the proceeds to such
Holder of Registrable Securities as contemplated herein. No person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 2(c),
each person, if any, who controls any Holder within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act and each officer,
director, partner, employee, agent, and counsel of any Holder or control person
shall have the same rights to contribution as such Holder or control person and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, each officer of the
Company who shall have signed any such registration statement, each director of
the Company, and its or their respective counsel shall have the same rights to
contribution as the Company, subject in each case to the provisions of this
Section 2(c). Anything in this Section 2(c) to the contrary notwithstanding, no
party shall be liable for contribution with respect to the settlement of any
claim or action effected without its written consent. This Section 2(c) is
intended to supersede any right to contribution under the Securities Act, the
Exchange Act or otherwise.
3. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to Section 1 may be assigned by a
Holder to a transferee or assignee of such securities:
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(a) if such transferee or assignee was a Holder of Registrable
Securities hereunder prior to such transfer;
(b) if such transfer is made in connection with the transfer
of all Registrable Securities held by the transferor;
(c) if such transferee or assignee acquires at least 25,000
shares (as adjusted for stock splits and the like) of the then outstanding
Registrable Securities; or
(d) in connection with a distribution by such Holder, to any
partner, former partner, member, former member, stockholder or former
stockholder, or the estate of any such person, provided the Company is, within a
reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; provided, however, that such
assignment shall be effective only if such transfer of any Registrable
Securities is lawful under all applicable securities laws.
4. Market Stand-off Agreement. Each Holder agrees that as a condition
to the grant of the registration rights called for hereunder in connection with
the Company's registration of the Shares, not to sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of any Common
Stock of the Company (other than those Common Stock shares included in the
registration) without the prior written consent of the Company, for such period
of time (not to exceed three hundred sixty-five (365) days) from the effective
date of such registration as may be requested by the underwriters and as is
agreed to by each beneficial owner of 1% or more of the Company's Common Stock
and each officer of the Company.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares of securities of every other person subject to the
foregoing restriction) until the end of such period.
5. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.
(b) Agreements and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, unless such amendment, modification or supplement is in writing
and signed by the parties hereto.
(c) Notices. Except as otherwise specified herein, any notice,
demand or request required or permitted to be given pursuant to the terms of
this Agreement shall be in writing and shall be deemed given:
(i) when delivered personally or by verifiable
facsimile transmission (with a hard copy to follow) on or before 5:00
p.m., central time, on a business day or, if the day is not a business
day, on the next succeeding business day;
(ii) on the next business day after timely delivery
to an overnight courier; and
(iii) on the third business day after deposit in the
U.S. mail (certified or registered mail, return receipt requested,
postage prepaid), addressed as follows:
If to the Company, to: Capital Growth Systems, Inc.
980 North Michigan Avenue - Suite 1120
Chicago, IL 60611
Attention: Lee Wiskowski
Telephone: 312-640-2975
Facsimile: 312-640-2976
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with a copy to:
Nexvu Technologies
1100 East Woodfield Road - Suite 100
Schaumburg, IL 60173
Attention: Robert T. Geras
Telephone: 630-872-5810
Facsimile: 630-872-5872
If to a Holder: c/o Holder's address as set forth on the
Company's books and records
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of the Registrable Shares subject to the terms
hereof.
(e) Counterparts. This Agreement may be executed in any number
of counterparts, whether by original, photocopy or facsimile and by the parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement.
(f) Headings. The headings in this Agreement are for
convenience of references only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without reference
to its conflicts of law provisions. Any dispute hereunder shall be adjusted in
the state or federal courts situated in Cook County, Illinois.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application hereof in any circumstance is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions contained herein shall not be affected or
impaired thereby.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of this agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are not
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, concerning the registration rights granted by the Company
pursuant to this Agreement.
(j) [Intentionally Deleted]
(k) Third-Party Beneficiaries. The Holders, if not direct
signatories to the Agreement, shall be third party beneficiaries of this
Registration Rights Agreement and shall be able to rely upon all rights
conferred to them herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
COMPANY: HOLDER:
CAPITAL GROWTH SYSTEMS, INC.
[Signature]
By:
Its: [Print Name]
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