EXHIBIT 4.5
AXXESS, INC.
REGISTRATION RIGHTS AGREEMENT
March 10, 1997
To the Purchasers of the Unit(s)
of Axxess
Reference is made to the Private Placement Memorandum (the "Memorandum")
of Axxess, (the "Company") dated March 10, 1997. Pursuant to the Memorandum, you
(the "Holder") have purchased one or more Units (the "Units") offered by the
Company, each Unit consisting of 100,000 shares of AXXS's common stock, $0.001
par value (the "Common Stock"). The Common Stock will have certain piggyback
registration rights as defined in this Registration Rights Agreement to be
entered into between AXXS and holders of the Units; indicated on the signature
page hereof on the terms and conditions described herein and in the Private
Placement Memorandum dated March 10, 1997 (together with all amendments thereof
and supplements and exhibits thereto, the "Private Placement Memorandum"), a
copy of which has been received by the undersigned. This sets forth the
agreement of the Company to register the shares of Common Stock, under the
Securities Act of 1933, as amended.
WITNESSETH:
WEMREAS, the Company will issue to Holder shares of the Company's Common
Stock (the "Shares") more specifically identified in the Memorandum.
WHEREAS, the Holder is willing to subscribe for the Shares subject to
the terms and conditions set forth herein,
NOW THEREFORE, in consideration of the agreements set forth herein the
parties agree as follows:
1. Piggyback Registration. If the Company at any time during the year
three year period cornmencing on the date the Company becomes subject to the
reporting requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), proposes to register any of its securities under the Securities Act of
1933, as amended (the "1933 Act"), other than pursuant to Forms ▇-▇, ▇-▇ or
other comparable form, the Company shall include the shares of Common Stock
issued to the Holder (the "Registrable Securities"), in such registration. The
Company shall at such time give prompt written notice to all Holders of its
intention to effect such registration and of such Holders' rights under such
proposed registration, and upon the request of any Holder delivered to the
Company within twenty (20) days after giving of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method of disposition thereof), the Company shall include such
Registrable Securities held by each such Holder requested to be included in such
registration; provided, however, that if, at any time after giving such written
notice of the Company's intention to register any of the Holder's Registrable
Securities and prior to the effective date
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of the registration statement filed in connection such registration, the Company
shall determine for any reason not to register or to delay the registration of
such Registrable Securities, the Company may give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities issued or issuable in connection with
such registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registrable Securities in a subsequent
registration); and in the case of a determination to delay a registration shall
thereupon be permitted to delay registering any Registrable Securities for the
same period as the delay in respect of securities being registered for the
Company's own account. The Holder shall not be required to give any notice in
connection with the Company's initial public offering, in which case, the
Registrable Securities shall be automatically included in Registration
Statement.
Except in connection with the Company's initial public offering, if, in the
good faith judgment of the managing underwriter of an underwritten offering, the
inclusion of all of the Registrable Securities originally covered by a request
for registration would reduce the number of shares to be offered by the Company
or interfere with the successful marketing of the shares of Common Stock to be
offered by the Company, the number of shares to be included in such offering may
be reduced in the following manner: (i) any shares of Common Stock to be offered
by the officers or directors of the Company shall be excluded from such offering
to the extent required by the managing underwriter, and (ii) if a further
reduction in the number of shares is required, such shares shall be selected pro
rata among all selling stockholders whose shares are included in such
registration statement (based upon the number of shares of each stockholder to
be included in such registration statement).
2. Option to Include Registrable Securities in Offering. Notwithstanding
anyting contained in Section 1 of this Agreement, the Company shall not be
required to include any of the Holders' Registrable Securities in an
underwritten offering of the Company's securities unless such Holders accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided such terms are usual and customary for
selling stockholders) and the Holders agree to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may reasonably request. Nothing contained herein however, shall
require any Holder to execute an agreement to refrain from selling the
Registrable Securities, except as set forth in the Subscription Agreement.
3. Cooperation with Company. Holders will cooperate with the Company in all
respects in connection with this Agreement, including, timely supplying all
information reasonably requested by the Company and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
4. Registration Procedures. If and whenever the Company is required by any
of the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Securities under the 1933 Act, the
Company shall (except as otherwise provided in this Agreement), as expeditiously
as possible:
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a. prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement and shall use its best efforts to
cause such registration statement to become effective and remain effective
until all the Registrable Securities are sold or become capable of being
publicly sold without registration under the 1933 Act; provided, however, the
Company may suspend or terminate the use of any such registration statement
for a period of up to 30 days to permit the orderly dissemination of
significant business developments.
b. 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 and to
comply with the provisions of the 1933 Act with respect to the sale or other
disposition of all securities covered by such registration statement whenever
the Holder or Holders of such securities shall desire to sell or otherwise
dispose of the same (including prospectus supplements with respect to the
sales of securities from time to time in connection with a registration
statement pursuant to Rule 415 of the Commission);
c. furnish to each Holder such numbers of copies of a summary prospectus or
other prospectus, including a preliminary prospectus or any amendment or
supplement to any prospectus, in conformity with the requirements of the 1933
Act, and such other documents, as such Holder may reasonably request in order
to facilitate the public sale or other disposition of the securities owned by
such Holder;
d. use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or blue sky laws of
such jurisdictions as each Holder shall reasonably request, and do any and
all other acts and things which may be necessary or advisable to enable such
Holder to consummate the public sale or other disposition in such
jurisdiction of the securities owned by such Holder, except that the Company
shall not for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified or to
file therein any general consent to service of process;
e. use its best efforts to list such securities on any securities exchange on
which any securities of the Company is then listed, if the listing of such
securities is then permitted under the rules of such exchange;
f. enter into and perform its obligations under an underwriting agreement, if
the offering is an underwritten offering, in usual and customary form, with
the managing underwriter or underwriters of such underwritten offering;
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g. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the 1933 Act, of the happening of any event of which
it has knowledge as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary or make the statements
therein not misleading in the light of the circumstances then
existing; and
h. furnish, at the request of any Holder on the date such Registrable
Securities are delivered to the underwriters for sale pursuant to
such registration or, if such Registrable Securities are not being
sold through underwriters, on the date the registration statement
with respect to such Registrable Securities becomes effective, (i)
an opinion, dated such date, of the counsel representing the Company
for the purpose of such registration, addressed to the underwriters,
if any, and to the Holder making such request, covering such legal
matters with respect to the registration in respect of which such
opinion is being given as the Holder of such Registrable Securities
may reasonably request and are customarily included in such an
opinion and (ii) letters, dated, respectively, (1) the effective
date of the registration statement and (2) the date such Registrable
Securities are delivered to the underwriters, if any, for sale
pursuant to such registration from a firm of independent certified
public accountants of recognized standing selected by the Company,
addressed to the underwriters, if any, and to the Holder making such
request, covering such financial, statistical and accounting matters
with respect to the registration in respect of which such letters
are being given as the Holder of such Registrable Securities may
reasonably request and are customarily included in such letters; and
i. take such other actions as shall be reasonably requested by any
Holder to facilitate the registration and sale of the Registrable
Securities; provided, however, that the Company shall not be
obligated to take any actions not specifically required elsewhere
herein which in the aggregate would cost in excess of $5,000.
5. Expenses. All expenses incurred in any registration of the Holders'
Registrable Securities under this Agreement shall be paid by the Company,
including, without limitation, printing expenses, fees and disbursements of
counsel for the Company, expenses of any audits to which the Company shall agree
or which shall be necessary to comply with governmental requirements in
connection with any such registration, all registration and filing fees for the
Holders' Registrable Securities under federal and State securities laws, and
expenses of complying with the securities or blue sky laws of any jurisdictions;
provided, however, the Company shall not be liable for (a) any discounts or
commissions to any
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underwriter, (b) any stock transfer taxes incurred with respect to Registrable
Securities sold in the Offering or (c) the fees and expenses of counsel for any
Holder, provided that the Company will pay the costs and expenses of Company
counsel if the Company's counsel is representing any or all selling security
holders.
6. Indemnification. In the event any Registrable Securities are included
in a registration statement pursuant to this Agreement:
a. Company Indemnity. Without limitation of any other indemnity
provided to any Holder, either in connection with the Offering or
otherwise, to the extent permitted by law, the Company shall indemnify
and hold harmless each Holder, the affiliates, officers, directors and
partner of each holder, any underwriter (as defined in the ▇▇▇▇ ▇▇▇)
for such Holder, and each person, if any, who controls such Holder or
underwriter (within the meaning of the 1933) Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several)
to which they may become subject under the 1933 Act, the Exchange Act
or other federal or state law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of material fact contained in such registration
statement including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, (iii) any violation or alleges violation by the Company of
the 1933 Act, the Exchange Act, or (iv) any state securities law or
any rule or regulation promulgated under the 1933 Act, the Exchange
Act or any state securities law, and the Company shall reimburse each
such Holder, affiliate, officer or director or partner, underwriter or
controlling person for any reasonable legal or other expenses incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability, or action provided, however, that the
Company shall not be liable to any holder in any such case for any
such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished expressly
for the use in connection with such registration by any such Holder or
any other officer, director or controlling person thereof.
▇. ▇▇▇▇▇▇ Indemnity. Each Holder shall indemnify and hold harmless the
Company, its affiliates, its counsel, underwriter (as defined in the
▇▇▇▇ ▇▇▇) and each person, if any, who controls the Company or the
underwriter (within the meaning of the 1933 Act or liabilities (joint
or several) to which they may become subject under the 1933 Act, the
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Exchange Act or any state securities law, and the Holder shall
reimburse the Company, affiliate, officer or director or partner,
underwriter or controlling person for any legal or other expenses
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; insofar as such losses,
claims, damages or liabilities (or actions and respect thereof) arise
out of or are based upon any statements or information provided by
such Holder to the Company in connection with the offer or sale of
Registrable Securities.
c. Notice: Right to Defend. Promptly after receipt by an indemnified
party under this Section 6 of Notice of the Commencement of any
action (including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 6 deliver to the indemnifying
party a written notice of the commencement thereof and the
indemnifying party agrees in writing that it will be responsible for
any costs, expenses, judgments, damages and losses incurred by the
indemnified party with respect to such claim, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof
with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the
indemnifying party, if counsel to the indemnified party reasonably
believes that representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding;
provided, however, that the indemnifying party shall be responsible
for one counsel. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
such action shall relieve such indemnifying party of any liability
that it may have to any indemnified party otherwise than under this
Agreement.
d. Contribution. If the indemnification provided for in this Agreement 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 therein, then the indemnifying party, in lieu
of indemnifying such indemnified party thereunder, 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 the relative fault of, or benefit to, the
indemnifying party on the one hand and the indemnified party on the
other hand in connection with the statements or omissions which
resulted in such loss, liability, claim damage or expense as well as
any of the relevant equitable considerations. The relevant fault of
the indemnifying party and the indemnified part shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified Party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount any Holder shall
be obligated to contribute pursuant to the Agreement shall be limited
to an amount equal to the proceeds to such Holder of the Registrable
Securities sold pursuant to the registration statement which gives
rise to such obligation to contribute (less the aggregate amount of
any damages which the Holder has otherwise been required to pay in
respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action
arising from the sale of such registrable Securities).
Notwithstanding any indemnification provided for in this Section 6, in
the event it is finally bad faith, wilful misconduct or gross
negligence of an indemnified party, such indemnified party shall repay
to the indemnifying party all amounts previously paid on behalf of the
indemnified party in connection with the defense of such Violation.
e. Survival of Indemnity. The indemnification provided by this
Agreement shall be a continuing right to indemnification and shall
survive the registration and sale of any Registrable Securities by any
person entitled to indemnification hereunder and the expiration or
termination of this Agreement.
7. Limitation on Other Registration Rights. Except as otherwise set forth
in this Agreement, the Company shall not, without the prior written consent of
the Holders of Registrable Securities representing a majority thereof held by
all the Holders, file any registration statement filed on behalf of any person
(including the Company) other than a Holder to become effective during any
period when the Company is not in compliance with this Agreement
8. Remedies
a. Remedies Upon Default or Delay. The Company acknowledges the
breach of any part of this Agreement may cause irreparable harm to a
Holder and that monetary damages alone may be inadequate. The Company
therefore agrees that the Holder shall be entitled to injunctive
relief or such other applicable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be
construed to limit a Holder's right to any remedies at law, including
recovery of damages for breach of any part of this Agreement.
9. Notices. All communications under this Agreement shall be in writing and
shall be mailed by first class mail postage prepaid, or telegraphed or telexed
with confirmation of receipt or delivered by hand or by overnight delivery
service. Any notice, when mailed by
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registered, or certified mail shall be deemed to be given three days after so
mailed, when telegraphed or telexed shall be deemed to be given when
transmitted, or when delivered by hand or overnight shall be deemed to be given
when delivered.
10. Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall inure to the of and be binding upon the successors and
permitted assigns of the Company and each of the Holders.
11. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent ofthe Company and the Holders of securities representing a
majority of the Registrable Securities; provided, however, that no such
amendment or waiver shall take away any registration right of, any Holder of
Registrable Securities or reduce the amount of reimbursable costs to any Holder
of Registrable Securities in connection with any registration hereunder without
the consent of such Holder; further provided, however, that without the consent
of any other Holder of Registrable Securities any Holder may from time to time
enter into one or more agreements amending, modifying or waiving the provisions
of this Agreement if such action does not adversely affect the rights or
interest of any other Holder of Registrable Securities. No delay on the part of
any party in the exercise of any right, power or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise by any party of any
right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy.
12. Counterparts. One or more counterparts of this Agreement may be
signed by the parties, each of which shall be an original but all of which
together shall constitute one and same instrument.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Nevada. without giving effect to
conflicts of law principles.
14. Invalidity of Provisions. If any provisions of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.
15. Headings. The headings in this Agreement are for convenience of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
IN WITINTSS WHEREOF, the parties have executed this Agreement as of the
10th day of March, 1997.
AXXESS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Int'l Investments, Ltd.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President Name of Holder
[signature appears here]
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Signature of Holder
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