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EXHIBIT 4.3
eVENTURES GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into on the 24th day of November, 1999, by and among eVENTURES GROUP,
INC., a Delaware corporation (the "Company"), and the persons and entities
signatories hereto (collectively, the "Stockholders"), as holders of shares of
Series B Convertible Preferred Stock, par value $0.00002 per share, of the
Company ("Series B Stock").
W I T N E S S E T H:
WHEREAS, the Company and the Stockholders have entered into that
certain Preferred Stock Subscription Agreement dated as of November 24, 1999
(the "Subscription Agreement"), pursuant to which certain of the Stockholders
acquired shares of the Company's Series B Stock; 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. REGISTRABLE SHARES. For purposes of this Agreement
"Registrable Shares" shall mean, at any time, and with respect to any
Stockholder or Qualified Transferee (as defined in Section 8(g) below), any
Restricted Securities (as defined below) held by such Stockholder or Qualified
Transferee, and "Holder" shall mean any Stockholder or Qualified Transferee
holding Registrable Shares. 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 Securities Act of 1933,
as amended or any successor Federal statute (the "Act"), the Registration
Statement in connection therewith has been declared effective 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. For purposes of this
Agreement, the term "Restricted Securities" shall mean, at any time and with
respect to any Stockholder or Qualified Transferee, the shares of Series B Stock
and any other securities which by their terms are directly or indirectly
exercisable or exchangeable for or convertible into Common Stock (other than
stock options granted to employees or directors of the Company in their capacity
as such, or Common Stock issuable upon the exercise thereof), and any securities
received on or with respect to any of the foregoing securities, which are held
by such Stockholder or Qualified Transferee and which theretofor have not been
sold to the public pursuant to a Registration Statement or pursuant to Rule 144
under the Act. For purposes of this Agreement, the term "Registration Statement"
shall mean any registration statement of the Company which covers any of the
Registrable Shares, and all amendments and supplements to any such
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Registration Statement, including post-effective amendments, in each case
including the Prospectus (defined herein) contained therein, all exhibits
thereto and all material incorporated by reference therein. For purposes of this
Agreement, the term "Prospectus" shall mean the prospectus included in a
Registration Statement, including any prospectus subject to completion, and any
such Prospectus as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable Shares
and, in each case, by all other amendments and supplements to such prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein. For purposes of this Agreement, the term
"Rule 144" shall mean Rule 144 promulgated under the Act or any successor or
similar rule thereto, as may be enacted by the Securities and Exchange
Commission (the "Commission") from time to time.
2. 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" or
similar 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 2(b) below, the Company will
include in such registration all shares of Registrable Shares which
Holders of Registrable Shares request the Company to include in such
registration by written notice given to the Company within twenty (20)
days after the date of sending of the Piggyback Notice.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities by the Company and the managing underwriters for such
offering advise the Company in writing that in their opinion the number
of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a
price range acceptable to the Company, the Company will include in such
registration (i) first, the securities proposed to be sold by the
Company, (ii) second, the securities proposed to be sold by any other
persons with registration rights prior to those of the Holder, (iii)
third, the Registrable Shares requested to be included in such
registration, pro rata among the Holders of such Registrable Shares on
the basis of the number of shares owned by each such Holder, and (iv)
fourth, other securities requested to be included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities held solely by Holders of the Company's securities and the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to the Holders
initially requesting such registration, the Company will include
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in such registration (i) first, the securities requested to be
included therein by the Holders requesting such registration, (ii)
second, the securities proposed to be sold by any other persons with
registration rights prior to those of the Holder, (iii) third, the
Registrable Shares requested to be included in such registration, pro
rata among the Holders of such Registrable Shares on the basis of the
number of shares owned by each such Holder, and (iv) fourth, other
securities requested to be included in such registration.
3. REGISTRATION PROCEDURES. Whenever the Holders of Registrable
Shares have requested that any Registrable Shares be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Shares in accordance with the intended method of
distribution thereof and will as expeditiously as possible:
(i) prepare and file with the Commission a
Registration Statement with respect to such Registrable Shares
on any appropriate form under the Act, which form shall be
selected by the Company and shall be available for the sale of
Registrable Shares in accordance with the intended method or
methods of distribution thereof and use its best efforts to
cause such Registration Statement to become effective,
provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the
Company will furnish to the counsel selected by the Holders of
a majority of the Registrable Shares included in such
Registration Statement copies of all such documents proposed
to be filed, which documents will be subject to the review of
such counsel;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to such Registration
Statement and supplements to the Prospectus used in connection
therewith (and to file the Prospectus, as so supplemented,
under Rule 424 under the Act, if required) as may be necessary
to keep such Registration Statement effective for a period of
up to one (1) year, 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;
(iv) notify the selling Holders of Registrable
Shares and the managing 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
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information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (D) of
the receipt by the Company of any notification with respect to
the suspension of the qualification of any of the Registrable
Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and (E) of the
existence of any fact which results in a Registration
Statement, a Prospectus or any document incorporated therein
by reference containing an untrue statement of a material fact
or omitting to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(v) use its best efforts to register or qualify
such Registrable Shares under such other securities or blue
sky laws of such jurisdictions as any selling Holder
reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such
selling Holder to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such selling
Holder, provided that the Company will not be required (A) to
qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
subparagraph, (B) to subject itself to taxation in any such
jurisdiction, or (C) to consent to general service of process
in any such jurisdiction;
(vi) notify each selling Holder of such
Registrable Shares, at any time when a Prospectus relating
thereto is required to be delivered under the Act, of the
happening of any event referred to in clause (iv)(E) of this
Section 3, and, at the request of any such seller, prepare a
supplement to such Prospectus or a post-effective amendment to
such Registration Statement so that, as thereafter delivered
to the purchasers of such Registrable Shares, such Prospectus
will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements
therein not misleading;
(vii) cause all such Registrable Shares to be
listed on each securities exchange on which similar securities
issued by the Company are then listed and to be qualified for
trading on each system on which similar securities issued by
the Company are from time to time qualified;
(viii) provide a transfer agent and registrar for
all such Registrable Shares not later than the effective date
of such Registration Statement and thereafter maintain such
transfer agent and registrar;
(ix) enter into such customary agreements
(including underwriting agreements in customary form) and take
all such other actions as the Holders of a majority of the
Registrable Shares being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the
disposition of such Registrable Shares;
(x) in connection with an underwritten offering,
use its best efforts to (A) obtain opinions of counsel to the
Company and updates thereof, which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to
the
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managing underwriters, addressed to the underwriters, covering
the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters; and (B) obtain
"cold comfort" letters and updates thereof from the Company's
independent certified public accountants, addressed to the
underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with
underwritten offerings; make available for inspection during
normal business hours by any underwriter participating in any
disposition pursuant to a registration statement, and any
attorney or accountant retained by such underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably
requested by such underwriter, attorney or accountant in
connection with such registration statement; provided that
such underwriters execute prior thereto an agreement with the
Company that all such records, information or documents shall
be kept confidential by such persons unless (1) disclosure of
such records, information or documents is required by law or
by a court or administrative order or (2) such records,
information or documents are or become (but only when they
become) generally available to the public other than as a
result of disclosure in violation of this paragraph; and make
available for inspection by any underwriter participating in
any disposition pursuant to such registration statement and
any attorney, accountant or other agent retained by any such
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by
any such underwriter, attorney, accountant or agent in
connection with such registration statement;
(xi) otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission;
(xii) permit any Holder of Registrable Shares
which might be deemed, in the sole and exclusive judgment of
such Holder, to be an underwriter or a controlling person of
the Company, to participate in the preparation of such
registration or comparable statement and to require the
insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and
its counsel should be included;
(xiii) in the event of the issuance of any stop
order suspending the effectiveness of a registration
statement, or of any order suspending or preventing the use of
any related prospectus or suspending the qualification of any
Registrable Shares included in such registration statement for
sale in any jurisdiction, the Company will use its reasonable
efforts promptly to obtain the withdrawal of such order; and
(xiv) provide a CUSIP number for all Registrable
Shares, not later than the effective date of the applicable
registration statement.
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If any such registration or comparable statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company and if, in the sole and
exclusive judgment of such Holder, such Holder is or might be deemed to be a
controlling person of the Company, such Holder shall have the right to require
(a) the inclusion in such registration statement of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
of such securities by such Holder is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (b) in the event
that such reference to such Holder by name or otherwise is not required by the
Act or any similar federal statute then in force, the deletion of the reference
to such Holder; provided, that with respect to this clause (b) such Holder shall
furnish to the Company an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Company.
4. REGISTRATION EXPENSES.
(a) DEFINITION. The term "Registration Expenses" means
any expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration
and filing fees, listing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery
expenses, internal expenses, the fees and expenses of counsel for the
Company (but not the fees and expenses of counsel to the Holders of the
Registrable Shares included in such registration) and all independent
certified public accountants, underwriting fees and expenses (excluding
discounts and commissions attributable to the Registrable Shares, which
shall be paid by the selling Holders out of the proceeds of the
offering) and the fees and expenses of any other Persons (defined
below) retained by the Company. For purposes of this Agreement, the
term "Person" shall be construed as broadly as possible and shall
include an individual or natural person, a partnership (including a
limited liability partnership), a company, an association, a joint
stock company, a limited liability company, a trust, a joint venture,
an unincorporated entity and a governmental authority.
(b) PAYMENT. The Company shall pay the Registration
Expenses in connection with any and all Piggyback Registrations.
5. 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. In connection with an underwritten offering,
the Company will indemnify such underwriters, their officers and
directors and each Person
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who controls such underwriters (within the meaning of the Act) to the
same extent as provided above with respect to the indemnification of
the Holders of Registrable Shares.
(b) INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which a Holder of Registrable Shares is
participating, each such Holder will furnish to the Company in writing
such information and affidavits as the Company reasonably requests for
use in connection with any such Registration Statement or Prospectus
and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within
the meaning of the Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is contained in any written information or
affidavit so furnished in writing by such Holder; provided, that the
obligation to indemnify will be individual to each Holder and will be
limited to the net amount of proceeds received by such Holder from the
sale of Registrable Shares pursuant to such registration statement.
(c) NOTICE; DEFENSE OF CLAIMS. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld or delayed). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses
of more than one special and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 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
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fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such
statement or omission. The obligation to contribute will be individual
to each Holder of Registrable Shares and will be limited to the amount
by which the net amount of proceeds received by such Holder from the
sale of Registrable Shares exceeds the amount of losses, liabilities,
damages, and expenses which such Holder has otherwise been required to
pay by reason of such statements or omissions.
(e) SURVIVAL. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and
will survive the transfer of securities.
(f) UNDERWRITING AGREEMENT. To the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with an underwritten
public offering are in conflict with the provisions of this Section 5,
the provisions contained in the underwriting agreement shall control.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
Holder of Registrable Shares included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such Holder and
such Holder's intended method of distribution, and (iii) if requested by the
managing underwriter or underwriters or 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 Person in any
transaction other than pursuant to such underwriting for such period following
the effective date of the registration statement relating to such underwriting
as determined by either the Board of Directors or the Demanding Persons;
provided that no Holder of Registrable Shares shall be required to enter into
such an agreement unless each other Holder of Registrable Shares, each director
and executive officer of the Company and each other Holder of at least one
percent of the Series B Stock then outstanding enters into a substantially
identical agreement relating to such underwriting.
7. STOCKHOLDER LOCK-UP; AGREEMENT NOT TO SELL. Prior to the first
anniversary of the date hereof, no Holder of Registrable Shares may make any
public sale of Registrable Shares (pursuant to a Registration Statement, Rule
144 or otherwise); provided, however, that 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 the Lock-up
Conditions; (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
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forth in this Section 7; 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 7.
8. MISCELLANEOUS.
(a) INFORMATION AND REPORTING.
(i) The Company shall, at all times during which
it is neither subject to the reporting requirements of Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), nor exempt from reporting pursuant to
Rule 12g3-2(b) under the Exchange Act, upon the written
request of any 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"). Upon
the written request of any Stockholder, the Company shall
cooperate with and assist such Stockholder or any member of
the National Association of Securities Dealers, Inc. PORTAL
system in applying to designate and thereafter maintain the
eligibility of the Registrable Shares for trading through
PORTAL. The Company's obligations under this Section 8(a)(i)
shall at all times be contingent upon receipt from the
prospective transferee of Registrable Shares of a written
agreement to take all reasonable precautions to safeguard the
Rule 144A Information from disclosure to anyone other than
Persons who will assist such transferee in evaluating the
purchase of any Registrable Shares.
(ii) When it is first legally required to do so,
the Company shall register its Common Stock under Section 12
of the Exchange Act and shall keep effective such registration
and shall timely file such information, documents and reports
as the Commission may require or prescribe under Section 13 of
the Exchange Act. From and after the effective date of the
first registration statement filed by the Company under the
Act, the Company shall (whether or not it shall then be
required to do so) timely file such information, documents and
reports which a corporation, partnership or other entity
subject to Section 13 or 15(d) (whichever is applicable) of
the Exchange Act is required to file. The Company shall
promptly upon request furnish any Holder of Registrable Shares
(a) a written statement by the Company that it has complied
with the reporting requirements of Section 13 or 15(d) of the
Exchange Act, (b) a copy of the most recent annual or
quarterly report of the Company, and (c) such other reports
and documents filed by the Company with the Commission as such
Holder may reasonably request in availing itself of an
exemption for the sale of Registrable Shares without
registration under the Act. The Company acknowledges and
agrees that the purposes of the requirements contained in this
Section 8(a)(ii) are to enable any such Holder to comply with
the current public information requirement contained in
paragraph (c) of Rule 144 under the Act, 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
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the Company for the use of registration statements on Form
S-3. In addition, the Company shall take such other measures
and file such other information, documents and reports, as
shall hereafter be required by the Commission as a condition
to the availability of Rule 144 under the Act (or any similar
exemptive provision hereafter in effect) and the use of Form
S-3. The Company also covenants to use its best 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 (i) 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 Series B
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 or
(ii) grant registration rights that are superior to the registration rights
granted hereunder to any other Person other than to Persons who purchase Series
B Stock from the Company (unless consented to by a majority vote of the
Stockholders).
(c) ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Company
will not take any action, or permit any change to occur, with respect to its
securities for the purpose of materially and adversely affecting the ability of
the Holders of Registrable Shares to include such Registrable Shares in a
registration undertaken pursuant to this Agreement or materially and adversely
affecting the marketability of such Registrable Shares in any such registration
(including, without limitation, effecting a stock split or a combination of
shares); provided that this Section 8(c) shall not apply to actions or changes
with respect to the Company's business, balance sheet, earnings or revenue where
the effect of such actions or changes on the Registrable Shares is merely
incidental.
(d) NOTICES. All notices, 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 recent requested, postage prepaid:
(i) If to the Company, c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such
other address or addresses as may have been furnished in
writing by the Company to the Stockholders.
(ii) If to a Stockholder, to it at its address as
set forth in the applicable Subscription Agreement, or at such
other address or addresses as may have been furnished in
writing by such Stockholder with a copy to (which shall not
constitute notice): White & Case LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
(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
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party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(f) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, no amendment, modification, termination or cancellation of this
Agreement shall be effective unless made in writing signed by the Company and
the Holders of a majority of the shares of Registrable Shares; provided that no
amendment may be made to Sections 7 or 8(f) of this Agreement unless agreed upon
by the Company and the Holders of all the Registrable Shares.
(g) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register Registrable Shares pursuant to this Agreement may
be assigned (but only with all related obligations) by a Holder to any
transferee (a "Qualified Transferee") that acquires from a Holder either (i)
100,000 or more Registrable Shares or (ii) if less than 100,000 Registrable
Shares are owned by a Holder at the time of a transfer, all of the Registrable
Shares owned by such Holder, in either case in connection with the permitted
transfer of Registrable Shares. Such assignment shall not affect the rights of
Holders hereunder which shall remain in full force in accordance with the terms
hereof. Any transferring Holder 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.
(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 Texas without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Texas or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Texas.
(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.
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(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.
(Signature Page Follows)
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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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Title: Chief Executive Officer
----------------------------
[SIGNATURE PAGE FOR EACH STOCKHOLDER FOLLOWS]
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Signature page to Registration Rights Agreement dated November 24, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
▇▇▇▇ ▇▇▇▇▇ STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its general
partner
By: GMSP, L.L.C., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Principal
--------------------------------
14
15
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ Income Trust
---------------------------
Title: Trustee
--------------------------
16
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title:
--------------------------
17
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title:
--------------------------
18
Signature page to Registration Rights Agreement dated December 2, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
PARTNERSHIP NO. 5, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: (Mrs.) ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Officer of the Managing
--------------------------
General Partner,
FSI No. 2 Corporation
19
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
GNA Investments I, L.P.
by: ▇▇▇▇ ▇▇▇▇▇ STRATEGIC PARTNERS, L.P.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Principal
--------------------------
20
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇
---------------------------
Title:
--------------------------
15
21
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title:
--------------------------
22
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /S/ ▇▇▇▇ ▇. DALLOCH
--------------------------------
Name: ▇▇▇▇ ▇. Dalloch
---------------------------
Title:
--------------------------
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23
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ BY J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attorney-in-Fact
------------------------------
24
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title:
--------------------------
25
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Attorney-in-fact
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26
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ by /s/ JRC
------------------------------------
Name:
------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attorney-in-fact
27
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ by /s/ JRC
------------------------------------
Name:
------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Attorney-in-fact
28
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ by /s/ JRC
---------------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
R. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-fact
29
Signature page to Registration Rights Agreement dated December 15, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. RUOECHIO
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Ruoechio
---------------------------
Title:
--------------------------
30
Signature page to Registration Rights Agreement dated December 15, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Title:
--------------------------
31
Signature page to Registration Rights Agreement dated December __, 1999 among
eVentures Group, Inc. the undersigned and certain of its other Stockholders.
STOCKHOLDER:
By: /s/ ▇▇▇▇▇▇▇ ▇. ZLOTLEY
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Zlotley
---------------------------
Title:
--------------------------
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