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EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 2, 2001 (this
"AGREEMENT"), among the persons listed on Schedule A attached hereto (the
"INVESTORS"); and Technology Ventures Group, Inc., a Florida corporation (the
"COMPANY").
RECITALS
A. The Investors own certain shares of the Company's common stock, par
value $0.01 per share (the "Common Stock");
B. The Company has agreed to grant the Investors certain registration
rights; and
C. The Company and the Investors desire to define the registration
rights of the Investors on the terms and subject to the conditions herein set
forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1.
DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
AFFILIATE: shall mean any Person or entity, directly or indirectly
controlling, controlled by or under common control with such Person or entity;
COMMISSION: shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as
amended;
HOLDER: shall mean any holder of Registrable Securities;
OTHER STOCKHOLDERS: shall mean Persons who, by virtue of agreements
with the Company or otherwise, are entitled to include their securities in a
registration.
PERSON: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
REGISTER, REGISTERED and REGISTRATION: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
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REGISTRABLE SECURITIES: shall mean (A) 10,000 shares of Common Stock
owned by each of ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as of the date of this Agreement,
(B) 717,000 shares of Common Stock owned by Goldco Properties Limited
Partnership as of the date of this Agreement, (C) any capital stock of the
Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Common Stock referred to in clauses (A)
or (B);
REGISTRATION EXPENSES: shall mean all expenses incurred by the Company
in compliance with Section 2(a) hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company);
SECURITY, SECURITIES: shall have the meaning set forth in Section 2(1)
of the Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as amended; and
SELLING EXPENSES: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, as well as
expenses of counsel for any of the Holders.
SECTION 2.
REGISTRATION RIGHTS
(a) COMPANY REGISTRATION.
(i) INCLUSION IN REGISTRATION. If the Company shall determine to
register any of its equity securities either for its own account or for the
account of Other Stockholders, other than a registration relating solely to
employee benefit plans, or a registration relating solely to a Commission Rule
145 transaction, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities, the Company will:
(A) give to each of the Holders a written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, up to 300,000 shares of the Registrable Securities in the
first registration, up to 250,000 shares in the second registration, and up to
167,000 shares in the third registration which are specified in a written
request or requests, made by the Holders within twenty (20) days after receipt
of the written notice from the Company described in Section 2(a)(i) above,
except as set forth in Section 2(a)(ii) below.
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(ii) LIMITATION OF REGISTRATION RIGHTS.
(A) UNDERWRITING. If the registration for which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written notice
given pursuant to Section 2(a)(i)(A). In such event, the right of each of the
Holders to registration pursuant to this Section 2(a) shall be conditioned upon
such Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall
(together with the Company and the Other Stockholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
this Section 2(a), if the representative determines that marketing factors
require a limitation on the number of shares to be underwritten, the
representative may exclude from the second or third registration and
underwriting some or all of the Registrable Securities which would otherwise be
underwritten pursuant hereto. The parties have agreed that the initial 300,000
shares must be included in the first registration statement and therefore are
not subject to the limitation set forth in this paragraph. The Company shall
promptly advise all holders of securities of the Company requesting registration
of such limitation. If any of the Holders or any officer, director or Other
Stockholder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by promptly notifying in writing the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
(B) NUMBER OF REGISTRATIONS. In no event shall the Company be
required to include in any registration, any Registrable Securities of a Holder,
after the Company has effected three registrations pursuant to Section 2(a), and
such registrations have been declared or ordered effective and the sale of
Registrable Securities thereunder shall have closed. Notwithstanding the
foregoing, if a Holder is wholly cutback by the underwriter, such that a Holder
cannot include any of his or its Registrable Securities in an underwritten
Company registration, then the Registrable Securities which were cutback shall
all be included in any subsequent Company registration.
(b) EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their shares so registered; provided, that, expenses of counsel for
the Holders shall be borne as agreed to by the Holders.
(c) REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Section 2, the Company will keep the Holders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, the Company will:
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(i) prepare and file with the Commission a registration statement with
respect to such Registrable Securities, use commercially reasonable efforts to
cause such registration to become effective, and keep such registration
effective for a period of one hundred twenty (120) days or until the Holders, as
applicable, have completed the distribution described in the registration
statement relating thereto, whichever first occurs; PROVIDED, HOWEVER, that (A)
such 120-day period shall be extended for a period of time equal to the period
during which the Holders, as applicable, refrain from selling any securities
included in such registration in accordance with provisions in Section 2(g)
hereof; and (B) such 120-day period shall be extended for a period of time equal
to the period during which the Holders, as applicable, refrain from selling any
securities included in such registration for such time as is necessary to
correct a materially inaccurate prospectus under Section 2 (c)(iv) below;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Securities covered by such registration statement for, subject to the provisions
of Section 2 (c)(i) above, up to one hundred twenty (120) days;
(iii) when reasonably possible, furnish such number of prospectuses and
other documents incident thereto as each of the Holders, as applicable, from
time to time may reasonably request;
(iv) notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(v) use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdiction as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Act;
(vi) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement;
(vii) cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed; and
(viii) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
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(d) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, as applicable, each
of its officers, directors, partners, agents, affiliates and advisors, and each
person controlling each of the Holders, with respect to each registration which
has been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or any violation by the Company of the Securities Act or the Exchange Act or any
rule or regulation thereunder applicable to the Company and relating to action
or inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each of the Holders, each of its
officers, directors and partners, and each person controlling each of the
Holders, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon
written information furnished to the Company by the Holders or underwriter.
(ii) Each of the Holders will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors,
officers, agents, affiliates and advisors, and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter, each Other Stockholder and each of
their officers, directors, and partners, and each person controlling such Other
Stockholder against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement of a material
fact contained in any such registration statement, prospectus, offering circular
or other document made by such Holder in writing, or any omission to state
therein a material fact required to be stated therein or necessary to make the
statements by such Holder therein not misleading, and will reimburse the Company
and such Other Stockholders, directors, officers, partners, persons,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent that such untrue
statement or omission is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder.
(iii) Each party entitled to indemnification under this Section 2(d)
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
and provided further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
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under this Section 2 unless the Indemnifying Party is materially prejudiced
thereby. No Indemnifying Party, in the defense of any such claim or litigation
shall, except with the consent of each Indemnified Party, consent to entry of
any judgment or enter into any settlement which 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. No Indemnified Party, in its defense, may consent to any entry of
any judgment without the approval of the Indemnifying Party, which consent shall
not be unreasonably withheld. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering contemplated by
this Agreement are in conflict with the foregoing provisions, the provisions in
such underwriting agreement shall be controlling.
(v) The foregoing indemnity agreement of the Company and Holders is
subject to the condition that, insofar as they relate to any loss, claim,
liability or damage made in a preliminary prospectus but eliminated or remedied
in the amended prospectus on file with the Commission at the time the
registration statement in question becomes effective or the amended prospectus
filed with the Commission pursuant to Commission Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity or contribution agreement shall not inure to the
benefit of any underwriter or Holder if a copy of the Final Prospectus was
furnished to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
(e) INFORMATION BY THE HOLDERS. Each of the Holders holding securities
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Section 2.
(i) Each of the Holders shall cooperate as reasonably requested by the
Company with the Company in connection with the preparation of the registration
statement, and for so long as the Company is obligated to file and keep
effective the registration statement, shall provide to the Company, in writing,
for use in the registration statement, all such information regarding such
Holder and its plan of distribution of the Registrable Securities as may be
reasonably necessary to enable the Company to prepare the registration statement
and prospectus covering the Registrable Securities, to maintain the currency and
effectiveness thereof and otherwise to comply with all applicable requirements
of law in connection therewith.
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(ii) During such time as such Holder may be engaged in a distribution
of the Registrable Securities, such Holder shall comply with Regulation M
promulgated under the Exchange Act and pursuant thereto it shall, among other
things; (x) not engage in any stabilization activity in connection with the
securities of the Company in contravention of such regulation; (y) distribute
the Registrable Securities under the registration statement solely in the manner
described in the registration statement; (z) cease distribution of such
Registrable Securities pursuant to such registration statement upon receipt of
written notice from the Company that the prospectus covering the Registrable
Securities contains any untrue statement of a material fact or omits a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(f) RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act ("RULE 144"), at all
times from and after ninety (90) days following the effective date of the first
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(ii) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
at any time after it has become subject to such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities, furnish to
the Holder upon request, a written statement by the Company as to its compliance
with the reporting requirements of Rule 144 (at any time from and after ninety
(90) days following the effective date of the first registration statement filed
by the Company for an offering of its securities to the general public), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed as the
Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing the Holder to sell any such securities without
registration.
(iv) Notwithstanding anything contained in this Agreement, if any of
Holders Registrable Securities have not been included in an effective
Registration, then any of such Holder's Registrable Securities can be sold
pursuant to Rule 144. The registration rights set forth in this Section 2 shall
remain available to any Holder even if, in the opinion of counsel to the
Company, all of the Registrable Securities then owned by such Holder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)).
(g) "MARKET STAND-OFF" AGREEMENT. Each of the Holders agrees, if
requested by the Company and an underwriter of equity securities of the Company,
not to sell or otherwise transfer or dispose of any Registrable Securities held
by such Holder during the period of time reasonably requested by any
underwriter, not in excess of 180 days, following the effective date of a
registration statement of the Company filed under the Securities Act; PROVIDED,
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THAT, such agreement only applies to the Company's initial public offering. If
requested by the underwriters, the Holders shall execute a separate agreement to
the foregoing effect. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction until
the end of said 180-day period. The provisions of this Section 2(g) shall be
binding upon any transferee who acquires Registrable Securities.
SECTION 3.
MISCELLANEOUS
(a) DIRECTLY OR INDIRECTLY. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(b) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida (without giving effect to the
choice of law principles thereof) which are applicable to contracts made and to
be performed entirely within such State. Each of the parties hereby submits to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of Florida and of any Florida state court sitting in
Miami-Dade County for purposes of all legal proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby. Each of the
parties irrevocably waives, to the fullest extent permitted by law, any
objection which they may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
(c) SECTION HEADINGS. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
(d) NOTICES.
(i) All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or by
registered mail or certified mail, postage prepaid:
(A) if to an Investor, to the Investor's address or facsimile number
which is on file with the Company.
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(B) if to the Company, to Technology Ventures Group, Inc., ▇▇▇▇▇ ▇.▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President, with a copy
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. at Steel ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, fax: ▇▇▇.▇▇▇.▇▇▇▇.
(ii) Any notice so addressed shall be deemed to be given: if delivered
by hand or facsimile, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(e) SUCCESSORS AND ASSIGNS. This Agreement, and the rights and
obligations created hereunder, may only be assigned with the written consent of
the other parties hereto. Subject to the foregoing, this Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties.
(f) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement constitutes
the entire understanding of the parties hereto and supersedes all prior and
contemporaneous understandings and agreements among such parties with respect to
the subject matter hereof. This Agreement may be amended, and the observance of
any term of this Agreement may be waived, with (and only with) the written
consent of the Company and the Investors.
(g) SEVERABILITY. If any one or more of the provisions of this
Agreement should be ruled wholly or partly invalid or unenforceable by a court
or other government body of competent jurisdiction, then: (i) the validity and
enforceability of all provisions of this Agreement not ruled to be invalid or
unenforceable shall be unaffected; (ii) the effect of the ruling shall be
limited to the jurisdiction of the court or other government body making the
ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable
shall be deemed amended, and the court or other government body is authorized to
reform the provision(s), to the minimum extent necessary to render them valid
and enforceable in conformity with the parties intent as manifested herein; and
(iv) if the ruling and/or the controlling principle of law or equity leading to
the ruling is subsequently overruled, modified, or amended by legislative,
judicial, or administrative action, then the provision(s) in question as
originally set forth in this Agreement shall be deemed valid and enforceable to
the maximum extent permitted by the new controlling principle of law or equity.
(h) COUNTERPARTS; FAX SIGNATURES. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same agreement. Facsimile
signatures shall constitute original signatures for all purposes of this
Agreement.
SIGNATURES ON FOLLOWING PAGE
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
TECHNOLOGY VENTURES GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
INVESTORS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
GOLDCO PROPERTIES LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
(Signature Page to Registration Rights Agreement)
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SCHEDULE A
INVESTORS
NAME OF INVESTOR NO. OF SHARES
---------------- -------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,000
Goldco Properties Limited Partnership 717,000
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