REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of this
___ day of October, 2000 by and among Ebiz Enterprises, Inc., a Nevada
corporation (the "Company"), and LinuxMall.com, Inc., a Delaware corporation
("LinuxMall"), on behalf of and for the benefit of the stockholders and
debentureholders of LinuxMall listed on Schedule A attached hereto (collectively
the "Shareholders").
RECITALS
A. Pursuant to an Agreement and Plan of Merger dated August 7, 2000 (the
"Merger Agreement"), the Company and LinuxMall have agreed to a merger of
LinuxMall with and into a subsidiary of the Company (the "Merger"). In
connection with the Merger, the Shareholders will receive common stock, par
value $0.001 per share, of the Company ("Common Stock").
B. The Shareholders have approved the Merger with the understanding that
they would be granted certain registration rights with respect to the Common
Stock.
SECTION 1
DEFINITIONS
Hereafter, the following terms shall have the following respective meanings:
"HOLDER" or "HOLDERS" shall mean any purchaser holding Registrable Securities
and any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 2.1 hereof.
"INITIAL REGISTRATION" shall mean the registration by the Company of shares of
its Common Stock for resale by holders of such stock or warrants exercisable for
such stock as per the obligations of the Company to register such stock as of
the date of the Merger Agreement, but only if a registration statement with
respect thereto is initially filed by the Company with the United States
Securities and Exchange Commission (the "SEC") within six (6) months after the
date of this Agreement.
"PURCHASER" or "PURCHASERS" shall mean the Shareholders or each of them.
"REGISTRABLE SECURITIES" means the Common Stock issued to the Shareholders and
all other securities issued with respect to such Common Stock upon any stock
split, stock dividend, recapitalization, or similar event; provided, however,
that shares of Common Stock or other securities shall only be treated as
Registrable Securities if and so long as they have not been (A) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, whether in a registered offering, Rule 144 transaction
or otherwise, or (B) distributed to the public pursuant to an offering
registered under the Securities Act (or similar rule then in force).
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
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"REGISTRATION EXPENSES" shall mean all expenses, except as otherwise stated
below, incurred by the Company or LinuxMall in complying with Section 2.1
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for the Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration and the reasonable fees and
disbursements of counsel for all Holders in any registration pursuant to Section
2.1 hereof, provided that such counsel is also counsel for the Company.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the SEC thereunder, all
as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling commissions
and stock transfer taxes applicable to the Registrable Securities.
SECTION 2
REGISTRATION RIGHTS
2.1 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time the Company
shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans, (ii) a registration
relating solely to Rule 145 under the Securities Act ("Rule 145"), or (iii)
the Initial Registration, the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made within 15 calendar
days after mailing of such written notice by the Company, by any
Holder.
(b) UNDERWRITING. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company
shall so advise Shareholders as a part of the written notice given pursuant
to Section 2.1(a)(i). In such event the right of any Holder to registration
pursuant to this Section 2.1 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section 2.1, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the
managing underwriter may limit the Registrable Securities to be included in
such registration. The Company shall so advise all Holders and other
holders distributing their securities through such underwriting and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders 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. To facilitate the allocation of shares in
accordance with the above provisions, the Company may round the number of
shares allocated to any Holder or holder to the nearest 100 shares. If any
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Holder or holder disapproves of the terms of any such underwriting, he may
elect to withdraw therefrom by written notice to the Company and the
managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to 180 calendar days after the
effective date of the registration statement relating thereto, or such
other shorter period of time as the underwriters may require.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section
2.1 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
(d) LIMITATION ON SALE OR TRANSFER. Nothing in this Agreement shall be
construed to permit any Holder to sell or transfer any Registrable
Securities in violation of any sales or transfer restriction on such
Registrable Securities imposed by contract or applicable law.
2.2 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the date of
this Agreement, the Company shall not enter into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless such new registration rights,
including standoff obligations, are on a pari passu basis with or subordinate to
the rights of the Holders hereunder. Any additional parties receiving rights on
a pari passu basis with the Holders hereunder may execute a counterpart of this
Agreement, and upon execution by such additional parties and by the Company,
shall be considered a Holder for all purposes of this Agreement (and their
securities shall be considered Registrable Securities for all purposes of this
Agreement).
2.3 EXPENSES OF REGISTRATION. All Registration Expenses incurred in connection
with up to one registration pursuant to Section 2.1 shall be borne by the
Company. Unless otherwise stated, all Selling Expenses relating to securities
registered on behalf of the Holders shall be borne by the Holders and all other
Registration Expenses shall be borne by the Holders and the Company on a pro
rata basis in accordance with the number of shares included in the registration
held or issued by each.
2.4 REGISTRATION PROCEDURES. In the case of each registration, qualification or
compliance effected by the Company pursuant to this Section 2, the Company shall
keep each Holder advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. At its expense
the Company will:
(a) Keep such registration effective for a period of 90 calendar days or
until the Holder or Holders have completed the distribution described in
the registration statement relating thereto, whichever first occurs;
provided, however, that such 120-day period shall be extended for a period
of time equal to the period the Holder refrains from selling any securities
included in such registration at the request of an underwriter of Common
Stock (or other securities) of the Company;
(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 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;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as a
Holder from time to time may reasonably request;
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(d) Notify each seller of Registrable Securities covered by such
registration statement 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 or incomplete in
the light of the circumstances then existing, and at the request of any
such seller, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
shares, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete in
the light of the circumstances then existing;
(e) 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;
(f) 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;
(g) Otherwise use its best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first
month after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(h) In connection with any underwritten offering pursuant to a registration
statement filed pursuant to Section 2 hereof, the Company will enter into
an underwriting agreement reasonably necessary to effect the offer and sale
of Common Stock, provided such underwriting agreement contains customary
underwriting provisions and provided further than if the underwriter so
requests the underwriting agreement will contain customary contribution
provisions.
2.5 INDEMNIFICATION
(a) The Company shall indemnify each Holder, each of its officers,
directors, partners, accountants, legal counsel and agents, and each person
controlling such Holder within the meaning of Section 15 of the Securities
Act, with respect to which registration, qualification or compliance has
been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter within the meaning of Section 15
of the Securities Act, against any and all expenses, claims, losses,
damages or liabilities (or Actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any
amendment or supplement thereto prepared by the Company, incident to any
such registration, qualification or compliance, or based on any omission
(or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any violation by
the Company of the Securities Act or any rule or regulation promulgated
under the Securities Act applicable to the Company in connection with any
such registration, qualification or compliance, and the Company will
reimburse each such Holder, each of its officers and directors, and each
person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating, preparing or
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defending any such claim, loss, damage, liability or action, provided 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 or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to
the Company by an instrument duly executed by such Holder, controlling
person or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors,
officers, accountants, legal counsel and agents, each underwriter, if any,
of the Company' securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers, directors, partners, accountants, legal counsel and agents, and
each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Company, such Holders, such
directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged 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 an instrument duly executed by such Holder and
stated to be specifically for use therein. Notwithstanding the foregoing,
the liability of each Holder under this subsection (b) shall be limited in
an amount equal to the initial public offering price of the shares sold by
such Holder, unless such liability arises out of or is based on willful
conduct by such Holder.
(c) Each party entitled to indemnification under this Section 2.7 (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 conducts the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withhold,) and the Indemnified Party may
participate in such defense at such party's expense, 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 under this
Section 2 unless the failure to give such notice is materially prejudicial
to an Indemnifying Party's ability to defend such action and provided
further, that the Indemnifying Party shall not assume the defense for
matters as to which there is a conflict of interest or separate and
different defenses. 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.
2.6 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant to this
Agreement, to the extent not earlier terminated by the terms hereof, shall
terminate as to any Holder, (i) two years after the closing of an underwritten
public offering pursuant to an effective registration statement under the
Securities Act covering the offer and sale of common stock for the account of
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the Company to the public, or (ii) at such time as all Registrable Securities
held by such Holder can be sold without compliance with the registration
requirements of the Securities Act pursuant to Rule 144 (including Rule 144(k))
promulgated thereunder.
2.7 INFORMATION BY HOLDER. The Holder or Holders of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Holder or Holders, the Registrable Securities held by them and
the distribution proposed by such Holder or Holders 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.
2.8 RULE 144 REPORTING. With a view to making available the benefits of certain
rules and regulations of the SEC which may at any time permit the sale of the
Restricted Securities to the public without registration, after such time as a
public market exists for the Common Stock of the Company, the Company agrees to
use its reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times
after the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934,
as amended;
(b) File with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (at any time after it has become subject
to such reporting requirements);
(c) So long as a purchaser owns any Restricted Securities to furnish to the
Purchaser forthwith upon request a written statement by the Company as to
its compliance with the reporting requirements of said Rule 144 (at any
time after 90 calendar days after 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
Securities Exchange Act of 1934 (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 of the Company
and other information in the possession of or reasonably obtainable by the
Company as a Purchaser may reasonably request in availing itself of any
rule or regulation of the SEC allowing a purchaser to sell any such
securities without registration.
(d) LIMITATION ON SALE OR TRANSFER. Nothing in this Agreement shall be
construed to permit any Holder to sell or transfer any Registrable
Securities in violation of any sales or transfer restrictions on such
Registrable Securities imposed by contract or applicable law.
2.9 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to register
securities granted purchasers under Section 2 may be assigned to a transferee or
assignee reasonably acceptable to the Company in connection with any transfer or
assignment of Registrable Securities by a Shareholder provided that the Company
is first given notice of the transfer or assignment and such transfer may
otherwise be effected in accordance with applicable securities laws.
Notwithstanding the foregoing, the rights to cause the Company to register
securities may be assigned to any constituent partner (or member in the case of
a Shareholder that is a limited liability company) of a Shareholder.
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SECTION 3
MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed and construed in all
respects in accordance with the laws of the State of Arizona as applied to
agreements made and performed in Arizona by residents of the State of Arizona.
3.2 AMENDMENT. Except as expressly provided herein, neither this Agreement not
any term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought; provided however, that
holders of a majority of the Registrable Securities may waive, modify or amend
on behalf of all holders, any provisions hereof.
3.3 NOTICES, ETC. Any notice or other communication required or permitted under
this Agreement will be given in writing and will be sent by facsimile or
commercially recognized express courier to the address specified below or to any
other address that may be designated by prior notice. Any notice or other
communication delivered by facsimile will be deemed to have been received the
day it is sent and must be confirmed by a copy sent by express courier. Any
notice or other communication sent by commercially recognized courier will be
deemed to have been received on the 3rd business day after delivery to the
courier.
If to Holder, at the address last provided in writing to the Company by the
Holder.
If to the Company:
Ebiz Enterprises, Inc.
Attn: Chief Executive Officer
15695 North 83rd Way
Scottsdale, Arizona 85260
facsimile: (480) 778-1001
3.4 SEVERABILITY. In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
3.5 TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are
used for convenience only and are not considered in construing or interpreting
this Agreement.
3.6 FACSIMILE SIGNATURES. Any signature page delivered by a fax machine shall be
binding to the same extent as an original signature page, with regard to any
agreement subject to the terms hereof or any amendment thereto. Any party who
delivers such a facsimile signature page agrees to later deliver an original
counterpart to any party which requests it.
3.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which may be executed by less than all of the Purchasers, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
EBIZ ENTERPRISES, INC.
By: /s/ Jeffrey I. Rassas
----------------------------------------
Name: Jeffrey I. Rassas
--------------------------------------
Title: Chief Executive Officer
-------------------------------------
LINUXMALL.COM, INC.
By: /s/ David Shaw
----------------------------------------
Name: David Shaw
--------------------------------------
Title: Chief Executive Officer
-------------------------------------
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SCHEDULE A
SECURITY HOLDER ADDRESS
--------------- -------
H&Q Workgroup Solutions Investors, LLC Hambrecht & Quist
Attn: Steve Hurley
One Bush Street
San Francisco, California 94104
The Santa Cruz Operation, Inc. The Santa Cruz Operation, Inc.
Attn: Legal Department
400 Encinal Street
Santa Cruz, California 95060
LM.com, LLC LM.com, LLC
David M. Ickovic
Registered Agent
40 Inverness Drive East, Suite 100
Englewood, CO 80112
BATB, LLC BATB, LLC
Steven E. Leatherman
Manager
1700 Lincoln Street, Suite 1800
Denver, Colorado 80203
SRTB, LLC SRTB, LLC
Steven E. Leatherman
Manager
1700 Lincoln Street, Suite 1800
Denver, Colorado 80203
Elihu and Thelma Lubkin 3527 N. Murray Avenue
Shorewood, Wisconsin 53211-2525
Tundra Resources, LLC Tundra Resources, LLC
Attn: Thomas and Tina Vessels
1610 Wynkoop Street, Suite 100
Denver, Colorado 80202
Sibylline Capital, LLC Sibylline Capital, LLC
Attn: Mr. Mark M. Soane
1700 Lincoln Street, Suite 1800
Denver, Colorado 80203
Mark Bolzern 3197 South Mobile Way
Aurora, Colorado 80013
Robert Ferguson 392 Highwood Drive Circle
Chaska, Minnesota 55318
Darren Finnamore 4925 Natchez Lane
Savage, Minnesota 55378
John Gruss 5175 Cottonwood Lane
Plymouth, Minnesota 55442
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Frank Kasper, Jr. 834 Goodrich Avenue
St. Paul, Minnesota 55105
Deborah Most 2730 West 66th Street, #10
Richfield, Minnesota 55423
Jennifer Sandt 3234 Xerxes Avenue North
Minneapolis, Minnesota 55412
David Shaw 5689 Ouray Street
Aurora, Colorado 80015
Pat Brandt c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Carol Harris c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Aldo Ramos c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Bonnie Green c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Joe Brockmeier c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Daniel Choong c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Virginia Lane c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
Ray Goshorn c/o LinuxMall.com, Inc.
13750 East Rice Place, Suite 100
Aurora, Colorado 80015
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