REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 3, 1996 by and between eXodus Technologies, Inc., a
Washington corporation (hereinafter referred to as "EXODUS" or the "COMPANY")
whose controlling shareholder is American United Global, Inc., a Delaware
corporation ("AUGI"), and the undersigned (each of the undersigned other than
eXodus is sometimes hereinafter referred to as a "HOLDER"; the undersigned other
than eXodus are sometimes hereinafter collectively referred to as the
"HOLDERS").
Reference is made to those certain Subscription Agreements of even date
herewith by and among AUGI and the Company, on the one hand, and each of the
Holders, on the other hand (each such Subscription Agreement is sometimes
hereinafter referred to as a "SUBSCRIPTION AGREEMENT"; and all such Subscription
Agreements are sometimes hereinafter referred to collectively as the
"SUBSCRIPTION AGREEMENTS"). Pursuant to SECTION 3(O)(B) of each Subscription
Agreement, the Holder party thereto shall have the right to acquire from the
Company a certain number of common stock purchase warrants (such warrants, as
more fully described in said SECTION 3(O)(B) of the Subscription Agreement, are
sometimes hereinafter referred to as the "EXODUS WARRANTS") upon the occurrence
of an "EXODUS IPO", as such term is hereinafter defined. Each eXodus Warrant,
if so issued, will entitle the holder thereof to acquire one share (each such
share, an "EXODUS WARRANT SHARE") of the common stock of eXodus (the "EXODUS
COMMON STOCK") upon the terms and conditions of such eXodus Warrant. The term
"EXODUS IPO" shall be defined as the time at which eXodus shall consummate an
initial public offering of eXodus Common Stock, alone or in combination with
other eXodus securities, pursuant to a registration statement filed by eXodus
pursuant to the "SECURITIES ACT" (as such term is defined in SECTION 2 of this
Agreement) and declared effective by the "COMMISSION" (as such term is defined
in SECTION 2(D) of this Agreement). eXodus agreed, pursuant to the terms and
conditions of the Subscription Agreements, that, in the event that the eXodus
Warrants are exercised to acquire eXodus Warrant Shares (such eXodus Warrant
Shares being sometimes hereinafter referred to as "REGISTRABLE SECURITIES"), the
holders of such Registrable Securities would have certain registration rights
pursuant to an agreement among the parties hereto.
The parties hereto are entering into this Registration Rights Agreement
in order to define the registration rights and obligations of the parties hereto
in respect of the Registrable Securities and to induce the Holders to purchase
the Registrable Securities and the Company to sell the same to the Holders
pursuant to their respective Subscription Agreements. Notwith-
standing anything to the contrary contained in this Agreement, this Agreement
shall not create any obligation on the part of eXodus or AUGI to issue or sell
or cause eXodus to issue or sell the eXodus Warrants or the eXodus Warrant
Shares to any Holder or to any person or entity, and the Subscription Agreements
shall exclusively govern their obligations, and the Holders' rights, in that
regard. Furthermore, notwithstanding anything to the contrary contained herein,
no Holder shall have any rights to demand or cause the registration of any
Registrable Securities or otherwise exercise any rights under this Agreement
unless and until eXodus Warrants are issued to such Holder pursuant to the
Subscription Agreement entered into by that Holder and such Holder acquires
eXodus Warrant Shares by exercising such eXodus Warrants in accordance with the
terms and conditions thereof.
The parties hereby agree as follows:
1. DEFINITIONS.
"AFFILIATE" of any specified "Person" (as such term is hereinafter
defined) means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED, HOWEVER, that beneficial ownership of 10% or
more of the voting securities of a Person shall be deemed to be control.
"AGREEMENT" has the meaning assigned to that term in the preamble to
this Agreement.
"AUGI" has the meaning assigned to that term in the preamble to this
Agreement.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York, Borough of Manhattan are not
required to be open.
"COMMISSION" has the meaning assigned to that term in SECTION 2(D) of
this Agreement.
"COMPANY" has the meaning assigned to that term in the preamble to this
Agreement.
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"DEMAND REGISTRATION" has the meaning assigned to that term in SECTION
2(B)(I) of this Agreement.
"DEMAND REGISTRATION RIGHTS COMMENCEMENT DATE" has the meaning assigned
to that term in SECTION 2(B)(I) of this Agreement.
"EXCHANGE ACT" has the meaning assigned to that term in SECTION 2(F) of
this Agreement.
"EXCLUDED REGISTRATIONS" shall have the meaning assigned to that term in
SECTION 2(A) of this Agreement.
"EXODUS" has the meaning assigned to that term in the preamble to this
Agreement.
"EXODUS COMMON STOCK" has the meaning assigned to that term in the
preamble to this Agreement.
"EXODUS IPO" has the meaning assigned to that term in the preamble to
this Agreement.
"EXODUS WARRANT SHARE" has the meaning assigned to that term in the
preamble to this Agreement.
"EXODUS WARRANTS" has the meaning assigned to that term in the preamble
to this Agreement.
"HOLDER" or "HOLDERS" have the meanings assigned to those terms in the
preamble to this Agreement.
"INCIDENTAL REGISTRATION" has the meaning assigned to that term in
SECTION 2(A)(I) of this Agreement.
"INSPECTORS" has the meaning assigned to that term in SECTION 2(D) of
this Agreement.
"MAJORITY IN INTEREST" has the meaning assigned to that term in SECTION
2(B)(1) of this Agreement.
"PERSON" means any corporation, individual, joint-stock company, limited
liability company, joint venture, partnership, unincorporated association,
governmental regulatory entity, country, state or political subdivision thereof,
trust, municipality or other entity.
"PRIORITY SECURITIES" has the meaning assigned to that term in SECTION
2(A) of this Agreement.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of or compliance with this Agreement, including without limitation:
(i) all Commission, stock
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exchange, or National Association of Securities Dealers, Inc. registration and
filings fees, (ii) all fees and expenses incurred by the Company in connection
with compliance with state securities or blue sky laws (including reasonable
fees and disbursements of counsel for any underwriters in connection with blue
sky qualifications of any of the Registrable Securities), (iii) all expenses of
the Company pursuant to this Agreement in preparing or assisting in preparing,
word processing, printing and distributing the registration statement relating
to any of the Registrable Securities, any underwriting agreements and other
documents to effect the registration of the Registrable Securities pursuant to
this Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities exchange
or exchanges pursuant to SECTION 2(D)(VII) hereof, (v) all rating agency fees,
if any, (vi) the fees and disbursements of counsel for the Company and of the
Company's independent public accountants, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance, (vii) any fees and disbursements of any underwriters customarily
paid by issuers or sellers of securities and the reasonable fees and expenses of
any special experts retained by the underwriters in connection with the
registration statement relating to any of the Registrable Securities; BUT
"Registration Expenses does NOT include (i) any underwriting discounts and
commissions and transfer taxes, if any, or (ii) the fees and disbursements of
counsel to, and accountants or other professionals retained by, any Holder.
"REGISTRABLE SECURITIES" has the meaning assigned to that term in the
preamble to this Agreement.
"SECURITIES ACT" has the meaning assigned to that term in SECTION 2 of
this Agreement.
"SHARES" has the meaning assigned to that term in SECTION 2(A).
"SUBSCRIPTION AGREEMENT" has the meaning assigned to that term in the
preamble to this Agreement.
2. REGISTRATION RIGHTS.
Commencing upon date upon which the registration statement under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), covering any eXodus
IPO is declared effective by the Commission and provided that such eXodus IPO
shall be consummated, each Holder shall have the right to have such Holder's
Registrable Securities registered under the Securities Act and applicable United
States state securities laws in accordance with the following provisions.
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(a) INCIDENTAL REGISTRATION.
(i) If the Company at any time proposes to register on a
registration statement on Form ▇-▇, ▇▇▇▇ ▇-▇, or S-3 (or an equivalent
registration form then in effect) any shares of eXodus Common Stock ("SHARES")
or any options, warrants or other rights to acquire, or securities convertible
into or exchangeable for Shares (the "PRIORITY SECURITIES") under the Securities
Act (PROVIDED, that the provisions of this Section 2 shall NOT apply to any
registration (A) relating to securities issuable in connection with the eXodus
IPO, (B) relating to shares issuable upon exercise of employee share options or
in connection with any employee benefit or similar plan of the Company, or
(C) in connection with an acquisition by the Company of another company or other
business entity or its assets (collectively, "EXCLUDED REGISTRATIONS")) in a
manner which would permit registration of Registrable Securities for sale to the
public under the Securities Act, whether or not for sale for the Company's own
account, it shall each such time (other than with regard to any Excluded
Registration) give prompt written notice to each Holder of its intention to do
so and of the Holders' rights under this SECTION 2(A), at least 30 calendar days
prior to the anticipated filing date of the registration statement relating to
such registration. Such notice shall offer each Holder the opportunity to
include in such registration statement (other than an Excluded Registration)
such number of Registrable Securities as such Holder may request. Upon the
written request of any Holder made within 20 calendar days after the receipt of
Company's notice (which request shall specify the number of Registrable
Securities intended to be disposed of by such Holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by any Holder (any such registration
on behalf of any Holder, other than an Excluded Registration, is sometimes
hereinafter referred to as an "INCIDENTAL REGISTRATION"); PROVIDED, HOWEVER,
that (A) if such registration involves an underwritten offering, each Holder
requesting the inclusion of such Holder's Registrable Securities in such
registration statement must sell such Holder's Registrable Securities to the
underwriters selected by Company on the same terms and conditions as apply to
the Company, and (B) if, at any time after giving written notice pursuant to
this SECTION 2(A)(I) of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice to the Holder and shall
thereupon be relieved of its obligation to register any Registrable Securities
in connection with such registration. If a registration pursuant to this
SECTION 2(A)
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involves an underwritten public offering, the Holder may elect, in writing not
less than five (5) days prior to the effective date of the registration
statement filed in connection with such registration, not to register such
Registrable Securities in connection with such registration. The Company shall
pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this SECTION 2(A). However, the
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of its Registrable Securities
pursuant to a registration statement effected pursuant to this SECTION 2(A), and
the fees and disbursements of counsel to, and accountants or other
professionals, retained by, such Holder. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities upon the
earliest to occur of the following: (i) a registration statement with respect
to the sale of such securities shall have become effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement; (ii) when such securities may be sold under Rule 144 (or
any successor provision) under the Securities Act; (iii) such securities shall
have been otherwise transferred and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company;
(iv) such securities shall have ceased to be outstanding; or (v) the Holder in
question shall have had the opportunity to have all of such Holder's Registrable
Securities sold pursuant to three (3) or more such Incidental Registrations
(singly or in the aggregate), the effective dates of at least two of such
registration statements being not less than six (6) months apart.
Notwithstanding anything to the contrary contained in this SECTION 2(A)(I), the
Company's obligation to give notice to a Holder in respect of any proposed
registration shall cease as to such Holder when such Holder no longer owns
securities which are Registrable Securities within the meaning of this
Agreement.
(ii) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration
pursuant to this SECTION 2(A) involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its good faith view, the
number of equity securities (including all Registrable Securities) that the
Company, the Holders, and any other Persons intend to include in such
registration exceeds the largest number of such securities that can be sold
without having an adverse effect on such offering, including the price at which
such Registrable Securities can be sold, the Company will include in such
registration (A) first, all the Priority Securities to be sold for the Company's
own account; (B) second, all other securities sought to be sold for the
Company's own account; and (C) third, to the extent that the number of Priority
Securities and other securities referred to in (A) and (B) is
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less than the number of securities that the underwriter has advised the Company
can be sold in such offering without having the adverse effect referred to
above, as many Registrable Securities as are requested to be included in such
registration by the Holder pursuant to SECTION 2(A)(I) hereof on a pro rata
basis (calculated by reference to the proportionate amount of securities sought
to be included in the registration) with all other Persons contractually
entitled to have securities included in such registration.
(iii) If the Company at any time proposes to effect a public
offering in a jurisdiction other than the United States of any of its Shares or
any options, warrants or other rights to acquire, or securities convertible into
or exchangeable for Shares (other than a public offering, (A) relating to shares
issuable upon exercise of employee share options or in connection with any
employee benefit or similar plan of the Company or (B) in connection with an
acquisition by the Company of another company or other business entity or its
assets) the Company and the Holders will have the rights and be subject to the
obligations agreed in this SECTION 2(A) to the extent and where applicable.
(b) DEMAND REGISTRATION.
(i) Commencing on or after the date which shall be twelve (12)
months after the date on which the Commission declares the Company's
registration statement covering the shares offered in the eXodus IPO to be
effective (the "DEMAND REGISTRATION RIGHTS COMMENCEMENT DATE"), a majority in
interest of the Holders, as determined by reference to their respective
proportions of the aggregate number of Registrable Securities issued to such
Holders pursuant to the terms and conditions of the Subscription Agreements and
still held of record by such Holders at the time of any such determination
(hereinafter, a "MAJORITY IN INTEREST"), may request on one and ONLY one
occasion (except as hereinafter set forth) that the Company file a registration
statement under the Securities Act, on a registration statement form then
available to the Company and the Holders for such purpose, for the sale by the
Holders of not less than $500,000 in value (based upon the closing price (or, if
the closing price is so reported on the principal market for such securities,
the closing bid price) of a share of the eXodus Common Stock as reported on the
principal market for such securities on the date on which such demand is
received by the Company) of the Registrable Securities issued to such Holders
pursuant to such Subscription Agreements and still held of record by such
Holders as of such date. Each request for such a registration (hereinafter
referred to as a "DEMAND REGISTRATION") shall specify the approximate number of
shares of Registrable Securities requested to be registered and the anticipated
per share price
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range for such offering. Within ten (10) days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders, and the other Holders may request in writing received by the
Company within five (5) days thereafter that Registrable Securities issued to
such other Holders pursuant to the Subscription Agreements and still held of
record by such other Holders be included in the Demand Registration, such
request to specify the approximate number of shares of Registrable Securities
requested to be so registered. Subject to the approval of the holders of a
Majority in Interest of the Holders, which consent shall not be unreasonably
withheld, the Company may select the investment banker(s) and manager(s) to
administer the offering. In the event that the Company attempts to cause a
Demand Registration to become effective after a demand is made pursuant to this
SECTION 2(B), but such Demand Registration is not declared effective pursuant to
the rules and regulations of the Commission within six (6) months after the
demand therefor is received by the Company (other than due to the failure of any
Holder seeking to have such Holder's shares included in such registration to
perform such Holder's obligations), then unless and until said Demand
Registration so becomes effective, the Holders shall still be deemed to have the
right hereunder to request one (1) Demand Registration pursuant to this SECTION
2(B). Notwithstanding anything to the contrary in this Agreement, the Holders
may not require any Demand Registration within six (6) months of any opportunity
to participate in any Incidental Registration to the extent of Registrable
Securities having a value of at least $250,000 (PROVIDED that Registrable
Securities not included in any Incidental Registration due to an underwriter
determination in accordance with SECTION 2(A)(II) of this Agreement shall not be
counted as part of the total of $250,000 in Registrable Securities), measured
(in the same fashion as above in this SECTION 2(B)(I)) as of the date of request
by any Holder for inclusion in such Incidental Registration.
(ii) The Company may include shares of its securities for its own
account in any Registration Statement pursuant to this SECTION 2(B).
(c) HOLDBACK AGREEMENTS.
(i) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, each Holder participating
therein agrees not to effect any sale or distribution, including any private
placement or any sale pursuant to Rule 144A (or any successor provision) or
otherwise or any sale pursuant to Rule 144 (or any successor provision), under
the Securities Act, of any Registrable Securities, other than by pro-rata
distribution to its share-
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holders, partners or other beneficial holders, and not to effect any such sale
or distribution of any other equity security of Company or of any security
convertible into or exchangeable or exercisable for any equity security of
Company (in each case, other than as part of such underwritten public offering)
during the ten calendar days prior to, and during the 180 calendar day period
(or such lesser period as may be agreed upon between such holders of Registrable
Securities and the managing underwriter of such offering PROVIDED, that in no
event shall such period be longer than the period applicable to the executive
officers of eXodus or any holder of five percent (5%) or more of the outstanding
shares of eXodus Common Stock) that begins on the effective date of such
registration statement (except as part of such registration), without the
consent of the managing underwriter of such offering; PROVIDED, HOWEVER, that
such Holder has received written notice of such registration at least two
Business Days prior to the anticipated beginning of the ten calendar day period
referred to above.
(ii) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees (A) not to
effect any public sale or distribution of any of its equity securities or of any
security convertible into or exchangeable or exercisable for any equity security
of Company (other than any such sale or distribution of such securities in
connection with any merger or consolidation by Company or any Affiliate of
Company or the acquisition by Company or an Affiliate of Company of the shares
or substantially all the assets of any other Person or in connection with an
employee stock ownership or other benefit plan or an Excluded Registration)
during the ten days prior to, and during the 180-day period (or such lesser
period as may be agreed upon between such holders of Registrable Securities and
the managing underwriter of such offering (PROVIDED, that in no event shall such
period be longer than the period applicable to the executive officers of eXodus
or any holder of five percent (5%) or more of the outstanding shares of eXodus
Common Stock) which begins on, the effective date of such registration statement
(except as part of such registration), and (B) that any agreement entered into
after the date hereof pursuant to which Company issues or agrees to issue any
privately placed equity securities shall contain a provision under which the
holders of such securities agree not to effect any public sale or distribution
of any such securities during the period and in the manner referred to in the
foregoing clause (A), including a private placement pursuant to Rule 144A under
the Securities Act (or any successor provision) or otherwise and any sale
pursuant to Rule 144 under the Securities Act (except as part of such
registration, if permitted).
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(d) REGISTRATION PROCEDURES. In connection with any offering of
Registrable Securities registered pursuant to this SECTION 2, the Company shall
use its best efforts to do the following:
(i) Prepare and file with the Securities and Exchange Commission
(the "COMMISSION") within sixty (60) calendar days after receipt of a request
for registration, a registration statement on any form for which Company then
qualifies or which counsel for Company shall deem appropriate, and which form
shall be available for the sale of the Registrable Securities in accordance with
the intended methods of distribution thereof, and use its best efforts to cause
such registration statement to become and remain effective as provided herein,
PROVIDED that before filing with the Commission a registration statement or
prospectus or any amendments or supplements thereto, Company will (A) furnish to
one counsel selected by the Majority in Interest copies of all such documents
proposed to be filed for said counsel's review and comment, and (B) notify the
Holders whose Registrable Securities are included in such Demand Registration or
Incidental Registration of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered.
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than one hundred eighty (180) days or such shorter period
that will terminate when all Registrable Securities covered by such registration
statement have been sold (but not before the expiration of the time periods
referred to in Section 4(3) of the Securities Act and Rule 174, or any successor
thereto, if applicable), and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement.
(iii) Furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto), and the prospectus included in such
registration statement (including each preliminary prospectus), in conformity
with the requirements of the Securities Act, and such other documents as such
Holder may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by Holder.
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(iv) Use its best efforts to register or qualify such Registrable
Securities under such other state securities or "blue sky" laws of such
jurisdictions as each Holder including Registrable Securities in such
registration, and each underwriter, if any, of Registrable Securities covered by
such registration statement reasonably requests and do any and all other acts
and things that may be reasonably necessary or advisable to enable each such
Holder and each underwriter, if any, to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder; PROVIDED that
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
clause (iv), (B) subject itself to taxation or regulation of its business in any
such jurisdiction, or (C) consent to general service of process in any such
jurisdiction.
(v) Use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of Company to enable each such Holder to consummate the
disposition of such Registrable Securities.
(vi) Immediately notify Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event that comes to Company's attention if as a result of such
event the prospectus included in such registration statement contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
the Company will promptly prepare and furnish to each such Holder a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain 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.
(vii) Use its best efforts to cause all such Registrable
Securities to be listed on a national securities exchange in the United States
or NASDAQ and on each securities exchange on which similar securities issued by
Company may then be listed, and enter into such customary agreements including a
listing application and indemnification agreement in customary form, and to
provide a transfer agent and registrar for such Registrable Securities covered
by such registration statement no later than the effective date of such
registration statement.
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(viii) Enter into such customary agreements (including an
underwriting agreement or qualified independent underwriting agreement, in each
case, in customary form) and take all such other actions as the Majority in
Interest whose Registrable Securities are included in such registration or the
underwriters retained by such Majority in Interest, if any, reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities, including customary representations, warranties, indemnities and
agreements.
(ix) Make available for inspection, by each such Holder, any
underwriter participating in any disposition pursuant to such registration
statement, and the attorney, accountant or other agent retained by the Majority
in Interest or any such underwriter (collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, if any, as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause Company's
officers, directors and employees, and those of Company's affiliates, if any, to
supply all information and respond to all inquiries reasonably requested by any
such Inspector in connection with such registration statement; PROVIDED, that
all such inspection, due diligence, and responses shall be undertaken during
normal business hours of the Company, without material disruption of the conduct
of the Company's business, and subject to customary confidentiality agreements.
(x) Use its best efforts to obtain a "cold comfort" letter from
the Company's appointed auditors in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the Majority in
Interest reasonably requests.
(xi) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to each Holder whose
Registrable Securities are included in the registration statement, as soon as
reasonably practicable, an earnings statement covering a period of at least
twelve months beginning after the effective date of the registration statement
(as the term "effective date" is defined in Rule 158(c) under the Securities
Act) which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder.
It shall be a condition precedent to the obligation of the Company to
take any action with respect to any Registrable Securities that each Holder
thereof shall furnish to the Company such information regarding such Holder, the
Registrable Securities and any other Shares in the Company held by such Holder
and the intended method of disposition of the Registrable Securities held by
such Holder as the Company
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shall reasonably request and as shall be required in connection with the action
taken by the Company; and, furthermore, that each such Holder shall utilize such
Holder's best efforts to facilitate the completion and effectiveness of any
registration statement pursuant hereto including, without limitation, furnishing
customary information (for inclusion in any such Registration Statement and for
due diligence purposes in connection therewith), undertakings, and agreements in
connection therewith and not materially inconsistent with the other provisions
of this Agreement.
Each Holder agrees that, upon receipt of any notice from Company of the
happening of any event of the kind described in SECTION 2(D)(VI) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by SECTION 2(D)(VI) hereof, and, if so directed by the Company such
Holder will deliver to the Company (at the Company's expense) all copies
(including, without limitation, any and all drafts), other than permanent file
copies, then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event that the Company shall give any such notice, the period mentioned in
SECTION 2(D)(II) hereof shall be extended by the greater of (A) three (3) months
or (B) the number of days during the period from and including the date of the
giving of such notice pursuant to SECTION 2(D)(VI) hereof to and including the
date when the Holder shall have received the copies of the supplemented or
amended prospectus contemplated by SECTION 2(D)(VI) hereof.
(e) INDEMNIFICATION.
(i) INDEMNIFICATION BY COMPANY. In the event of any
registration of any Shares of the Company under the Securities Act pursuant to
this Agreement, the Company will indemnify and hold harmless, to the full extent
permitted by law, each Holder whose Registrable Securities are included in such
registration, its directors and officers, general partners, limited partners and
managing directors, each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls,
is controlled by or is under common control with any such Holder or any such
underwriter within the meaning of the Securities Act (and directors, officers,
controlling Persons, partners and managing directors, counsel, and accountants
of any of the foregoing) against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including (a) reasonable fees and
expenses of attorneys incurred by them in connection with investigating or
defending such loss, claim, liability, action or proceeding and (b) any amounts
paid in any settlement effected with Company's con-
- Page 13 - Reg. Rights Agt.
sent, which consent will not be unreasonably withheld) to which any such Holder,
any such director or officer or general or limited partner or managing director
or any such underwriter or controlling Person, counsel or accountants may become
subject under the Securities Act, United States state securities "blue sky"
laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (A) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any registration
statement under which such securities were registered under the Securities Act,
any preliminary, final or summary prospectus contained therein, or any amendment
or supplement thereto, (B) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (C) any violation or alleged violation by the Company
of any United States federal, state or common law rule or regulation applicable
to Company and relating to action required of or inaction by Company in
connection with any such registration; PROVIDED, HOWEVER, that Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by any Holder in its capacity as a shareholder in the
Company or any such director, officer, general or limited partner, managing
director, underwriter or controlling Person or their respective counsel or
accountants specifically stating that it is for use in the preparation thereof;
and, PROVIDED, FURTHER, that the Company shall not be liable to any Holder, any
Person who participates as an underwriter in the offering or sale of Registrable
Securities, if any, or any other Person, if any, who controls such underwriter
within the meaning of the Securities Act, or their respective counsel or
accountants pursuant to this SECTION 2(E)(I) with respect to any preliminary
prospectus or the final prospectus or the final prospectus as amended or
supplemented as the case may be, to the extent that any such loss, claim, damage
or liability of such Holder, underwriter or controlling or other Person results
from the fact that such underwriter sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter and such final prospectus, as then
amended or supplemented, had corrected any such misstatement or omission.
- Page 14 - Reg. Rights Agt.
The indemnity provided for herein shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder or any such
director, officer, general partner, limited partner, managing director,
underwriter or controlling Person or their respective counsel or accountants and
shall survive the transfer of such securities by such Holder.
(ii) INDEMNIFICATION BY HOLDER AND UNDERWRITERS. The Company
will require, as a condition to including any Registrable Securities in any
registration statement filed in accordance with the provisions hereof, that the
Company shall have received an undertaking reasonably satisfactory to it from
each Holder or any underwriter of Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in PARAGRAPH
(I) above) the Company and its directors, officers, controlling Persons and all
other prospective sellers and their respective directors, officers, general and
limited partners, managing directors, and their respective controlling Persons
and the counsel and accountants of each of the foregoing with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives through an
instrument duly executed by or on behalf of any such Holder or any underwriter
specifically stating that it is for use in the preparation of such registration
statement, preliminary, final or summary prospectus or amendment or supplement,
or a document incorporated by reference into any of the foregoing. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company or any Holder, any underwriters or any of
their respective directors, officers, general or limited partners, managing
directors or controlling Persons or their respective counsel or accountants and
shall survive the transfer of such securities by any Holder, PROVIDED, HOWEVER,
that no Holder shall be liable in the aggregate for any amounts exceeding the
product of the sale price per Registrable Security and the number of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such Holder.
(iii) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this SECTION 2(E), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, promptly give
written notice to the indemnifying party of the
- Page 15 - Reg. Rights Agt.
commencement of such action, PROVIDED, HOWEVER, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
SECTION 2(E), except to the extent that the indemnifying party is actually
materially prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified party and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, to the extent that it
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof, and the indemnifying party will not be
subject to any liability for any settlement made without its consent (which
consent shall not be unreasonably withheld). No indemnifying party will consent
to entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. 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 counsel in any single jurisdiction for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels as may be reasonably
necessary. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
(iv) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subsections of this SECTION 2(E) (with appropriate
modifications) shall be given by the Company and each Holder whose Registrable
Securities are included pursuant to this Agreement in any registration statement
under the Securities Act, to the full extent permitted by applicable law, with
respect to any required registra-
- Page 16 - Reg. Rights Agt.
tion or other qualification of securities under any United States federal or
state law or regulation or governmental authority other than the Securities Act.
(v) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this SECTION 2(E) is for any reason held to be unenforceable although applicable
in accordance with its terms, the Company, and each Holder and the underwriters
of Registrable Securities included in the applicable registration shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company,
each such Holder and the underwriters, in such proportions that the underwriters
are responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the prospectus bears to the
initial public offering price appearing thereon and the Company and each such
Holder are responsible for the balance; PROVIDED, HOWEVER, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. As between the Company and each
Holder, such parties shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect (A) the relative
benefits received by the Company, on the one hand, and each such Holder on the
other hand, from the offering of the Registrable Securities and any other
securities included in such offering, and (B) the relative fault of the Company,
on the one hand, and each such Holder on the other, with respect to the
statements or omissions that resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or any such Holder, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contribution pursuant to this SECTION 2(E) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein.
Notwithstanding anything to the contrary contained herein, the Company and the
Holders agree that any contribution required to be made by any Holder pursuant
to this SECTION 2(E) shall not exceed the net proceeds from the offering of
Registrable Securities (before deducting expenses) received by the appli-
- Page 17 - Reg. Rights Agt.
cable Holder with respect to such offering. For purposes of this SECTION 2(E),
each Person, if any, who controls any Holder or an underwriter within the
meaning of Section 15 of the Securities Act shall have the same rights to
contribution as such Holder or such underwriter, and each director of the
Company, each officer of the Company who signed the registration statement, and
each Person, if any, who controls Company within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as the Company.
(f) RULE 144. At all times after a public offering of any of the
Company's Shares, the Company agrees that it will file in a timely manner all
reports required to be filed by it pursuant to the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and, if at any time Company is not
required to file such reports, it will make available to the public, to the
extent required to permit the sale of Shares by each Holder pursuant to Rule
144, current information about itself and its activities as contemplated by Rule
144 under the Securities Act, as such Rule may be amended from time to time.
Notwithstanding the foregoing, the Company may deregister any class of its
equity securities under Section 12 of the Exchange Act or suspend its duty to
file reports with respect to any class of its securities pursuant to Section
15(d) of the Exchange Act if it is then permitted to do so pursuant to the
Exchange Act and the rules and regulations thereunder.
3. MISCELLANEOUS.
(a) REMEDIES. Each party to this Agreement, in addition to being
entitled to exercise all rights provided herein, in the applicable Subscription
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to seek specific performance of its rights under this
Agreement.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is materially inconsistent with the rights granted to any Holder in this
Agreement or otherwise materially conflicts with the provisions hereof. The
rights granted to each Holder hereunder do not materially conflict with and are
not materially inconsistent with the rights granted to the holders of Company's
securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the party against which the same
is sought to be enforced has obtained the written consent of each of the other
parties hereto.
- Page 18 - Reg. Rights Agt.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to any Holder, at the address set forth beneath such Holder's
name on the signature pages hereof;
(ii) if to Company, c/o:
eXodus Technologies, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and CFO
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, ▇▇▇▇▇ & Quentel
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the U.S. Mail, First Class postage prepaid, if
mailed; when answered back, if telexed; when receipt properly acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities; PROVIDED, HOWEVER, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a holder unless and to the extent such successor or assign acquired
Registrable Securities from a Holder.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in
- Page 19 - Reg. Rights Agt.
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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement together with the Subscription
Agreements (and the exhibits thereto) is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
eXodus Technologies, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Chairman, CEO.
------------------------
- Page 20 - Reg. Rights Agt.
THE HOLDERS:
GOODLAND INTERNATIONAL INVESTMENT LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: VP
--------------------------
Tax I.D. # NONE
---------------------
Address: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
No. of Preferred Shares:
140,000
------------------------
No. of AUGI Warrants:
122,500
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$3,501,225.00
------------------------
- Page 21 -AUGI Reg. Rts Agt.
WEYBURN OVERSEAS LTD.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: VP
--------------------------
Tax I.D. #: NONE
-------------------
Address: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
No. of Preferred Shares:
60,000
------------------------
No. of AUGI Warrants:
52,500
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$1,500,525.00
------------------------
- Page 22 -AUGI Reg. Rts Agt.
▇▇▇▇▇▇ PARTNERS LP
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: General Managing Partner
--------------------------
Tax I.D. #: ▇▇-▇▇▇▇▇▇▇
-------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn: Mr. ▇▇▇▇ ▇▇▇▇▇▇
No. of Preferred Shares:
26,000
------------------------
No. of AUGI Warrants:
22,750
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$650,210.00
------------------------
- Page 23 -AUGI Reg. Rts Agt.
EDJ LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: President
--------------------------
Tax I.D. #: NONE
-------------------
Address: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇ House
▇▇▇▇▇▇ ▇▇▇
Box N-3229
Nassau, Bahamas
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
No. of Preferred Shares:
6,000
------------------------
No. of AUGI Warrants:
5,250
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$150,052.50
------------------------
- Page 24 -AUGI Reg. Rts Agt.
KODIAK CAPITAL, L.P.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Chairman/G.P.
--------------------------
Tax I.D. #: ▇▇-▇▇▇▇▇▇▇
-------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇▇ Management
No. of Preferred Shares:
15,360
------------------------
No. of AUGI Warrants:
13,440
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$384,134.40
------------------------
- Page 25 -AUGI Reg. Rts Agt.
KODIAK INTERNATIONAL LTD.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Investment Advisor
--------------------------
Tax I.D. #: NONE
-------------------
Address: ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
P.O. Box 6432
1211 ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇
Address for Notice:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇▇ Management
No. of Preferred Shares:
26,880
------------------------
No. of AUGI Warrants:
23,250
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$672,235.20
------------------------
- Page 26 -AUGI Reg. Rts Agt.
KODIAK OPPORTUNITY LP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Chairman/G.P.
--------------------------
Tax I.D. #: ▇▇-▇▇▇▇▇▇▇
-------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇▇ Management
No. of Preferred Shares:
3,840
------------------------
No. of AUGI Warrants:
3,360
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$96,033.60
------------------------
- Page 27 -AUGI Reg. Rts Agt.
KODIAK OPPORTUNITY OFFSHORE LIMITED
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: Chairman
--------------------------
Tax I.D. #: NONE
-------------------
Address: ▇/▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇.▇.▇. ▇▇▇▇▇, SMB
Grand Cayman, Cayman Islands BWI
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
No. of Preferred Shares:
1,920
------------------------
No. of AUGI Warrants:
1,680
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$48,016.80
------------------------
- Page 28 -AUGI Reg. Rts Agt.
THE GALILEO FUND, L.P.
By: /s/
-----------------------------
Title: Member
--------------------------
Tax I.D. #: ▇▇-▇▇▇▇▇▇▇
-------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Delivery of Certificates:
▇▇▇▇▇▇▇ Sachs & Co.
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇, 44th Fl.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Securities to Be Registered in Following
Name: ▇▇▇▇▇▇▇ Sachs & Company
FFC DDJ Galileo Fund, L.P.
No. of Preferred Shares:
112,800
------------------------
No. of AUGI Warrants:
98,700
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$2,820,987.00
------------------------
- Page 29 -AUGI Reg. Rts Agt.
▇▇▇▇▇▇ OVERSEAS CORP.
By: /s/
-----------------------------
Title: Member
--------------------------
Tax I.D. #: N/A
-------------------
Address: ▇▇▇▇▇▇ Overseas Corp.
c/o Goldman ▇▇▇▇▇ (Cayman)
Harbor Center, 2nd Fl.
▇▇▇▇▇▇ Town
Post Offfice Box 896
Grand Cayman Islands
Address for Delivery of Certificates:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇, 44th Fl.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Securities to Be Registered in Following
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company
FFC ▇▇▇▇▇▇ Overseas Corp.
No. of Preferred Shares:
3,600
------------------------
No. of AUGI Warrants:
3,150
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$90,031.50
------------------------
- Page 30 -AUGI Reg. Rts Agt.
CROCODILE I, LLC
By: /s/
-----------------------------
Title: Member
--------------------------
Tax I.D. #: N/A
-------------------
Address: Crocodile I, LLC
c/o DDJ Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Delivery of Certificates:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Attn.: ▇▇▇▇▇ ▇▇▇▇▇▇, 44th Fl.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Securities to Be Registered in Following
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company
FFC Crocodile I, LLC
No. of Preferred Shares:
3,600
------------------------
No. of AUGI Warrants:
3,150
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$90,031.50
------------------------
- Page 31 -AUGI Reg. Rts Agt.