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Exhibit 10.4
PRO NET LINK CORP.
REGISTRATION RIGHTS AGREEMENT
August 8, 2000
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TABLE OF CONTENTS
<TABLE>
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Page
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1.1 Definitions.....................................................................................2
1.2 Interpretation..................................................................................3
1.3 Defined Terms...................................................................................4
1.4 Requested Registration..........................................................................4
1.5 Piggy-back Registration.........................................................................6
1.6 Form S-3 of Registration........................................................................7
1.7 Obligations of the Company......................................................................8
1.8 Furnish Information.............................................................................9
1.9 Expenses of Registration........................................................................9
1.10 Delay of Registration...........................................................................9
1.11 Indemnification.................................................................................9
1.12 Reports Under Securities Exchange Act of 1934..................................................11
1.13 Assignment of Registration Rights..............................................................11
1.14 Market Stand-off Agreement.....................................................................12
1.15 Termination of Registration Rights.............................................................12
1.16 Holders of Notes...............................................................................12
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2. General Provisions ................................................ 12
2.1 Further Assurances ........................................... 12
2.2 Rights Cumulative ............................................ 12
2.3 Notices ...................................................... 13
2.4 Severability ................................................. 13
2.5 Entire Agreement ............................................. 13
2.6 Governing Laws; Jurisdiction ................................. 13
2.7 Providing on Heirs; Successors and Assigns ................... 13
2.8 Amendment; Waiver ............................................ 14
2.9 Counterparts ................................................. 14
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PRO NET LINK CORP.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "REGISTRATION RIGHTS
AGREEMENT") is entered into as of August 8, 2000 by, between and among PRO NET
LINK CORP., a Nevada corporation (the "COMPANY"), GLOBALNET VENTURE PARTNERS,
INC., a Delaware corporation (the "OFFICERS' CO."), JEAN PIERRE COLLARDEAU
("JPC"), COMMERCE CONSULTING, LLC, a Delaware limited liability company of which
JPC is the sole member ("CCL") and GLENN ZAGOREN ("GZ"; and together with JPC,
CCL, GZ and the Officers' Co. the "EXISTING SHAREHOLDERS").
RECITALS
WHEREAS, JPC, GZ and FV currently are directors of the Company;
WHEREAS, the Existing Shareholders currently hold Common Stock (as
defined below) and/or options to purchase Common Stock;
WHEREAS, John A. Bohn and Karen Morgan are principal shareholders of
the Officers' Co.;
WHEREAS, the Company, John A. Bohn, Karen Morgan and the
Officers' Co. are parties to an Agreement, dated of even date herewith (the
"AGREEMENT"), whereunder John A. Bohn has agreed to serve as President, Chief
Executive Officer and Chairman of the Board of Directors of the Company and
Karen Morgan has agreed to serve as Chief Operating Officer and Senior
Executive Vice President of the Company; and
WHEREAS, the Company has granted to the Officers' Co. options (the
"OPTIONS") to purchase Common Stock (as hereinafter defined) under a Stock
Option Agreement (the "OPTION AGREEMENT") between the Company and the Officers'
Co., dated of even date herewith.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. Registration Rights. The Company hereby covenants and agrees as follows:
1.1 Definitions. As used herein, the following terms shall have the
following respective meanings:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "COMMON STOCK" means the Company's Common Stock, $0.001
par value.
(d) "FORM S-3" means such form under the 1933 Act as in effect
on the date hereof or any registration form under the 1933 Act subsequently
adopted by the SEC which
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permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
(e) "HOLDER" means any person owning of record Registrable
Securities or any permitted assignee thereof in accordance with Section 1.12.
(f) "INITIATING HOLDERS" means any Holder or Holders who are
entitled to request, and who have requested, registration of its or their
Registrable Securities under Sections 1.4 and 1.6.
(g) "NOTES" means convertible promissory notes issued to
lenders of bridge financing to the Company as of the date hereof, or as of any
date up to one (1) calendar month from the date hereof.
(h) "PERSON" means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, a
limited liability company, an unincorporated organization or a governmental
entity (or any department, agency, or political subdivision thereof).
(i) "PUBLIC OFFERING" means any registered offering of the
Company's equity securities solely for cash, other than a registration (i) on
Form S-8 or any form which does not include substantially the same information
as would be required to be included in a registration statement covering the
sale of the Registrable Securities, (ii) with respect to an employee benefit
plan or (iii) in connection with a Rule 145 transaction under the 1933 Act.
(j) The terms "REGISTER," "REGISTERED" and "REGISTRATION"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the 1933 Act, and the
declaration or ordering of the effectiveness of such registration statement or
document by the SEC.
(k) The term "REGISTRABLE SECURITIES" means: (i) all Common
Stock (or Common Stock underlying options, warrants or other convertible
securities) held by the Existing Shareholders as the date of this Registration
Rights Agreement, (ii) any Common Stock (or Common Stock underlying options,
warrants or other convertible securities) issued or issuable to the Existing
Shareholders, and the Officers' Co. under the Agreement, the Option Agreement,
and any other agreement the Company may enter into in the future with the
Existing Shareholders, (iii) all Common Stock issuable under the Notes, and (iv)
any Common Stock issued (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued) by way of a stock split, stock
dividend, recapitalization, merger or other distribution with respect to, or in
exchange for, or in replacement of, the Common Stock described in the foregoing
clauses (i), (ii) and (iii) of this sentence, excluding in all cases, however,
any Registrable Securities (A) sold by a person in a transaction in which its
rights under
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this Section 1 are not assigned; (B) sold to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction; or (C)
sold in a transaction exempt from the registration and prospectus delivery
requirements of the 1933 Act under Section 4(l) thereof so that all transfer
restrictions and restrictive legends with respect thereto are removed upon the
consummation of such sale.
(l) "REGISTRATION EXPENSES" means all expenses incurred by the
Company in complying with Sections 1.4, 1.5 and 1.6, including, without
limitation, all registration, filing and qualification fees, underwriters'
expense allowance, printing expenses, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits and
attorney's costs and fees of the Company 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).
(m) "SEC" means the Securities and Exchange Commission.
(n) "SELLING EXPENSES" shall mean all underwriting discounts
and selling commissions applicable to the sale of the Registrable Securities in
the registration, and fees and disbursements of counsel for any or all of the
Holders who elect to include their Registrable Securities in any such
registration.
1.2 Interpretation. References to Sections, Exhibits, or other
subdivisions are to the appropriate subdivisions of this Registration Rights
Agreement unless otherwise stated. The words "herein," and "hereof" and
"hereunder" and other words of similar import refer to this Registration Rights
Agreement as a whole and not to any particular Section, Exhibit, or other
subdivision unless otherwise stated.
1.3 Defined Terms in the Agreement. Capitalized, defined and other
terms used herein that are not otherwise defined in this Registration Rights
Agreement have the same meaning ascribed to them in the Agreement.
1.4 Requested Registration.
(a) Request for Registration. In case the Company shall
receive from one or more Holders a written request that the Company file a
registration statement under the 1933 Act with respect to shares of Registrable
Securities whose expected aggregate offering price is not less than five million
dollars ($5,000,000), the Company will:
(i) promptly, and in no event later than 30 days from
receipt of such written request, give written notice of such request to all
other Holders; and
(ii) subject to the limitations of Section 1.4(b), as
soon as practicable, use its best efforts to effect such registration under the
1933 Act (including, without limitation,
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appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
1933 Act and any other governmental requirements or regulations as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request),
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within twenty (20) business days after receipt of such written
notice from the Company;
provided, that the Company shall not be obligated to take any action to effect
any such registration, qualification or compliance pursuant to this Section 1.4:
(A) prior to the date that is the later of
(i) the date of the consummation of a Viable Financing or (ii) the one year
anniversary of the date of this Registration Agreement (the period during which
a Holder may request registration hereunder, beginning on such date, is referred
to herein as the "REQUEST PERIOD");
(B) if the Company has previously effected
three (3) registrations under this Section 1.4; or
(C) if the Company shall furnish to the
Holders requesting a registration statement pursuant to this Section 1.4 a
certificate, signed by the Chairman of the Board (and each member of the Board
of Directors so voting), which shall include a statement evidencing a vote by
the Board that, in the good faith exercise of the business judgment of the
Board, it would be seriously detrimental to the Company and its shareholders (in
a manner other than the dilutive effect of such registration), for such
registration statement to be filed or effected at such time, in which event the
Company shall have the right to defer such filing for a period of not more than
one hundred and twenty (120) days after receipt of the registration request of
the Initiating Holders; provided, that such right to delay a request shall be
exercised by the Company not more than once in any twelve (12) month period.
Subject to the foregoing clauses, (A) through (C) inclusive, the
Company shall file a registration statement covering the Registrable Securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Initiating Holders and in any event within one
hundred and twenty (120) days after receipt of such request.
(b) Underwriting. In the event that a registration pursuant to
this Section 1.4 is for a registered Public Offering by means of an
underwriting, the Company shall so advise the Holders as part of the notice
given pursuant to Section 1.4(a)(i). In such event, the right of any Holder to
registration pursuant to this Section 1.4 shall be conditioned upon such
Holder's participation in the underwriting arrangements required by this Section
1.4(b), and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent requested shall be limited to the extent provided
herein.
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The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with a managing underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders (which
underwriter or underwriters shall be reasonably acceptable to the Company).
Notwithstanding any other provision of this Section 1.4, if the managing
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement; provided, however,
that the number of shares of Registrable Securities to be included in such
underwriting and registration shall not be reduced unless all other securities
of the Company are first entirely excluded from the underwriting and
registration. No Registrable Securities excluded from the underwriting by reason
of the underwriter's marketing limitation shall be included in such
registration. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriters may round the number of shares
allocated to any Holder to the nearest one hundred (100) shares. If the number
of shares of Registrable Securities of any individual Holder shall be reduced by
more than 20% of the amount requested by any such Holder, such registration
shall not be treated as effected for purposes of Section 1.4(a)(ii)(B).
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities held by such Holder affected
shall be withdrawn from registration. If the registration does not become
effective due to the withdrawal of Registrable Securities, then either: (a) the
Holders withdrawing from such registration shall reimburse the Company for
expenses incurred in complying with the request; or (b) the withdrawing Holders
(but not the other Holders) shall be deemed to have effected a registration for
purposes of Section 1.4(a)(ii)(B); provided, however, that if at the time of
such withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request and have withdrawn the request with reasonable
promptness following disclosure by the Company of such material adverse change,
then the Holders shall not be required to pay any of such expenses, and the
aborted registration shall not be treated as effected for purposes of Section
1.4(a)(ii)(B).
1.5 Piggy-back Registration.
(a) Piggy-Back Rights. If, (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
securities in connection with a Public Offering, the Company shall promptly give
each Holder written notice of such registration, together with a list of the
jurisdictions in which the Company intends to attempt to qualify such securities
under
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applicable state securities laws. Upon the written request of each Holder given
within 20 business days after delivery of such written notice by the Company in
accordance with Section 2.3, the Company shall, subject to the provisions of
Section 1.4(a), use its best efforts to cause to be registered under the 1933
Act all of the Registrable Securities that each such Holder has requested to be
registered. If a Holder decides not to include all of its Registrable Securities
in any registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any of its Registrable
Securities in any subsequent registration statement or statements as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(b) Underwriting Requirements in Piggy-back Registration. If
the registration statement under which the Company gives notice pursuant to this
Section 1.5 is for an underwritten offering, the Company shall so advise the
Holders of Registrable Securities. The right of any Holder to registration
pursuant to Section 1.5(a) shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting (each, a "PARTICIPATING
HOLDER") shall (together with the Company and any other holders of Company
securities distributing their securities through such underwriting) enter into
an underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
this Section 1.5, if the underwriter determines that marketing factors require a
limitation of the number of shares of any class of securities to be
underwritten, the underwriter may (subject to the allocation priority set forth
below) exclude some or all Registrable Securities from such registration and
underwriting. Further, notwithstanding anything to the contrary herein, there
shall be no reduction below 75% of the total shares registered by the Company to
be offered by the Company for its own account under this Section 1.5. The
Company shall so advise all persons requesting registration, and the number of
shares of any class of securities that may be included in the registration and
underwriting shall be allocated in the following manner. The number of shares
that may be included in the registration and underwriting shall be allocated (i)
first to the Company; (ii) second to the Participating Holders, in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities
held by such Holders; and (iii) third, to any other shareholders of the Company
(other than Participating Holders) on a pro rata basis. In no event will shares
of any other participating shareholder be included in such registration if the
effect of including such shares would be to reduce the number of shares that may
be included by Participating Holders without the written consent of
Participating Holders of not less than a majority of the Registrable Securities
proposed to be sold in the offering. If any Holder disapproves of the terms of
any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
1.6 Form S-3 Registration. In case the Company shall receive from any
Initiating Holders a written request or requests that the Company effect a
registration on Form S-3 and any
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related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Initiating Holders, the Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Initiating Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within twenty (20) business days after receipt of such written notice from
the Company;
provided, that the Company shall not be obligated to effect any such
registration, qualification or compliance, pursuant to this Section 1.6: (i)
prior to the beginning of the Request Period; (ii) if the Company is not
qualified as a registrant entitled to use Form S-3; (iii) if the Initiating
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at an aggregate price to the
public of less than seven hundred and fifty thousand dollars ($750,000); (iv) if
the Company shall furnish to the Holders a certificate signed by the Chairman of
the Board of the Company (and each member of the Board so voting), which shall
include a statement evidencing a vote of the Board that, in the good faith
exercise of business judgment of the Board, it would be seriously detrimental to
the Company and its shareholders (in a manner other than the dilutive effect of
such registration) for such Form S-3 registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than one hundred and twenty
(120) days after receipt of the request of the Holder or Holders under this
Section 1.5; provided, that the Company shall not utilize this right more than
once in any twelve (12) month period; or (v) if the Company has already effected
one (1) registration on Form S-3 for the Holders pursuant to this Section 1.6 in
the prior twelve (12) month period.
1.7 Obligations of the Company. Whenever required under this Section 1
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to one hundred and twenty (120)
days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as
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may be necessary to comply with the provisions of the 1933 Act with respect to
the disposition of all securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under the securities laws of
such jurisdictions as shall be reasonably appropriate for the distribution of
the securities covered by the registration statement; 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 jurisdiction; and provided, further, that (anything herein to the contrary
notwithstanding with respect to the bearing of expenses) if any jurisdiction in
which the securities shall be qualified shall require that expenses incurred in
connection with the qualification of the securities in that jurisdiction be
borne by selling shareholders, then such expenses shall be payable by the
selling Holders pro rata, to the extent required by such jurisdiction if such
Holders do not elect to withdraw from the registration after notice of such
requirement.
(e) In the event of any underwritten Public Offering, enter
into and perform its obligations under an underwriting agreement in customary
form with terms generally satisfactory to the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the 1933 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.
1.8 Furnish Information. In connection with any action pursuant to this
Section 1, the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to effect the
registration of their Registrable Securities. In that connection, each selling
Holder shall be required to represent to the Company that all such information
is both complete and accurate.
1.9 Expenses of Registration. All Registration Expenses shall be borne
by the Company. All Selling Expenses shall be borne by the Holders of the
securities so registered, pro rata, on the basis of the number of shares so
registered.
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1.10 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any registration pursuant
to this Section 1 as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.11 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the officers, directors, partners, and members
(if Holder is an LLC) of each Holder, any underwriter (as defined in the 1933
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the 1933 Act or the 1934 Act, against any
losses, claims, damages, or liabilities, joint or several, to which they may
become subject under the 1933 Act, the 1934 Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) 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 a 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; or (iii) any violation
or alleged violation by the Company of the 1933 Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the 1933 Act, the
1934 Act or any state securities law. The Company's indemnity contained in this
Section 1.11(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable 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 in writing and expressly stated for use in connection with
such registration by any such Holder. The indemnity provided for in this Section
1.11(a) shall remain in full force and effect regardless of any investigation
made by or on behalf of such seller, underwriter, participating person or
controlling person and shall survive transfer of such securities by such seller.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter (within
the meaning of the 1933 Act) for the Company, any person who controls such
underwriter, and any other Holder selling securities in such registration
statement or any of its partners, members, directors or officers or any person
who controls such Holder, against any losses, claims, damages or liabilities,
joint or several, to which any of the foregoing persons may become subject,
under the 1933 Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such
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Violation occurs in reliance upon and in conformity with written information
furnished by such indemnifying Holder and expressly stated in a writing for use
in connection with such registration. The indemnity agreement contained in this
Section 1.11(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the indemnifying Holder, which consent shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party under this
Section 1.11 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.11, notify the
indemnifying party in writing of the commencement thereof and the indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, 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 the indemnified party reasonably determines
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, further, that the indemnifying parties
shall not be obligated to pay the fees and expenses of more than one counsel for
all such indemnified parties. The failure to notify an indemnifying party within
a reasonable time of the commencement of any such action, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.11, but the omission to so notify the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than under
this Section 1.11.
(d) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control; provided, however, that the failure of the underwriting
agreement to address an issue shall not be deemed to be a conflict between the
underwriting agreement and this Registration Rights Agreement.
(e) The obligations of the Company and the Holders under this
Section 1.11 shall survive the completion of any offering of the Registrable
Securities in a registration statement under this Section 1.
1.12 Reports Under Securities Exchange Act of 1934. With a view of
making available to the Holders the benefits of Rule 144 promulgated under the
1933 Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration,
the Company agrees to:
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(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at all
times;
(b) take such action as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Registrable Securities;
(c) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under the 1933
Act and the 1934 Act; and
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, upon reasonable request; a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the 1933 Act and the 1934 Act, or that it qualifies as a registrant whose
securities may be resold pursuant to Form S-3.
1.13 Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 1 may be assigned by
a Holder to (i) any permitted transferee under the Shareholder Agreement, and
(ii) a Holder's family member or trust (or family limited liability company or
family partnership) for the benefit of an individual Holder or any family
member; provided that (x) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned, and (y) such assignment shall be
effective only if immediately following such transfer the transferee agrees in
writing to be bound by the terms and conditions of this Registration Rights
Agreement and the Other Operative Agreements and such transfer of any
Registrable Securities is lawful under all applicable securities laws.
1.14 Market Stand-off Agreement. Each Holder agrees, in connection with
any underwritten Public Offering of the Company's securities, upon request of
the Company or the underwriters managing such offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option for the
purchase of, or otherwise dispose of any securities of the Company (other than
those included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time (not
to exceed one hundred and eighty (180) days) from the effective date of such
registration as may be requested by the Company or the underwriters, as the case
may be.
1.15 Termination of Registration Rights. The registration rights
granted herein shall terminate (i) as to all Holders, on the date which is the
tenth anniversary of the date hereof, and (ii) as to any Holder, at such time as
such Holder (A) is able to sell all of its Registrable Securities pursuant to
Rule 144(k) promulgated under the Securities Act, or (B) has sold all
Registrable Securities held by it.
1.16 Holders of Notes. Notwithstanding any other provisions of Section
1 of this Registration Rights Agreement, the limitations on the timing of the
rights granted to the Holders
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<PAGE> 15
under Section 1.4(a)(A) or 1.6(i) shall not apply to the Holders of Registrable
Securities underlying the Notes.
2. General Provisions.
2.1 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably requested by
any other party to better evidence and reflect the transactions described herein
and contemplated hereby, and to carry into effect the intents and purposes
hereof.
2.2 Rights Cumulative. Each and all of the various rights, powers and
remedies of the parties hereto shall be considered to be cumulative with and in
addition to any other rights, powers and remedies which such parties may have at
law or in equity in the event of the breach of any of the terms hereof. The
exercise or partial exercise of any right, power or remedy shall neither
constitute the exclusive election thereof nor the waiver of any other right,
power or remedy available to such party.
2.3 Notices. Except as otherwise set forth herein, any notice required
or permitted hereunder will be given in writing, and will be conclusively deemed
effectively given, upon compliance with the notice provisions of the Agreement
or the Shareholders Agreement, as the case may be.
2.4 Severability. The provisions of this Registration Rights Agreement
are severable. The invalidity, in whole or in part, of any provision hereof
shall not affect the validity or enforceability of any other provisions hereof.
If one or more provisions hereof shall be so declared invalid or unenforceable,
the remaining provisions shall remain in full force and effect and shall be
construed in the broadest possible manner to effectuate the purposes hereof. The
parties further agree to replace such void or unenforceable provisions hereof
with valid and enforceable provisions which will achieve, to the extent
possible, the economic, business and other purposes of the void or unenforceable
provisions.
2.5 Entire Agreement. This Registration Rights Agreement (together with
the Agreement, the Shareholders Agreement, the Operative Agreements and the
other documents referred to herein and therein) is intended by the parties
hereto to be the final expression of their agreement and constitutes and
embodies the entire agreement and understanding between the parties hereto with
regard to the subject matter hereof, is a complete and exclusive statement of
the terms and conditions thereof, and shall supersede any and all prior
correspondence, conversations, negotiations, agreements or understandings,
whether written or oral, relating to the same subject matter.
2.6 Governing Law; Jurisdiction. This Registration Rights Agreement
shall be governed by and construed under the laws of the State of New York as
applied to agreements
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<PAGE> 16
among New York residents entered into and to be performed entirely within New
York. The parties hereto agree that any disagreement or dispute arising
directly, indirectly, or otherwise in connection with, out of, related to, or
from this Registration Rights Agreement, any breach hereof, or any transaction
covered hereby, or any proceeding brought by a party to enforce any right,
assert any claim, or obtain any relief whatsoever in connection with this
Registration Rights Agreement, shall be brought by such party and resolved
exclusively within the State of New York. Accordingly, the parties hereto
consent and submit to the exclusive personal jurisdiction of the federal and
state courts located within the State of New York, U.S.A. The parties hereto
further agree that any such action or proceeding brought by a party to enforce
any right, assert any claim, or obtain any relief whatsoever in connection with
this Registration Rights Agreement shall be brought by such party exclusively in
the federal or state courts located within the State of New York.
2.7 Binding on Heirs, Successors and Assigns. This Registration Rights
Agreement and all of its terms, conditions and covenants are intended to be
fully effective and binding, to the extent permitted by law, on the heirs,
executors, administrators, successors and permitted assigns of the parties
hereto.
2.8 Amendment; Waiver. Any provision hereof may be amended and/or the
observance thereof may be waived upon the written consent of the Company and the
Holders of 85% of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this Section 2.8 shall be binding upon each
Holder of any Registrable Securities then outstanding (including securities into
which such securities are convertible), each future Holder of all such
Registrable Securities, and the Company. No waiver of any term, provision or
condition hereof, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be, or be construed as, a further or continuing waiver of any
such term, provision or condition or as a waiver of any other term, provision or
condition hereof.
2.9 Counterparts. This Registration Rights Agreement may be executed in
separate counterparts, each of which shall be deemed an original, and when
executed, separately or together, shall constitute a single original instrument,
effective in the same manner as if the parties hereto had executed one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the day and year first above written.
PRO NET LINK CORP.
By: /s/ Jean Pierre Collardeau
------------------------------------
Name: Jean Pierre Collardeau
Title: President and Chief
Executive Officer
GLOBAL NET VENTURE PARTNERS, INC.
By: /s/ Andrew Entwistle
------------------------------------
Name: Andrew J. Entwistle, Esq.
Title: Principal
---------------------------------------
JEAN PIERRE COLLARDEAU
---------------------------------------
GLENN ZAGOREN
---------------------------------------
FRANCIS VINCENT
COMMERCE CONSULTING, LLC
By: /s/ Jean Pierre Collardeau
------------------------------
Name: Jean Pierre Collardeau
Title: Sole Member
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