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EXHIBIT 4.8
eVENTURES GROUP, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into on the 26th day of May, 2000, by and among eVENTURES GROUP, INC., a
Delaware corporation (the "Company"), Andrew S. Pakula, an individual residing
in the State of New York ("Pakula"), and Laura Berland, an individual residing
in the State of New York ("Berland") (Pakula and Berland, collectively, the
"Stockholders"), as holders of shares of the Common Stock, par value $0.00002
per share, of the Company ("Common Stock").
WITNESSETH:
WHEREAS, the Company and the Stockholders entered into that certain
Stock Purchase Agreement dated May 26, 2000 (the "Stock Purchase Agreement"),
pursuant to which the Stockholders acquired shares of the Company's Common
Stock; and
WHEREAS, in connection with the Stock Purchase Agreement, the parties
have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and in the Stock Purchase Agreement, the sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. REGISTRABLE SHARES. For purposes of this Agreement "Registrable
Shares" shall mean, at any time, and with respect to any Stockholder or
Qualified Transferee (as defined in Section 7(f) below), any Restricted
Securities (as defined below) held by such Stockholder or Qualified Transferee,
and "Holder" shall mean any Stockholder or Qualified Transferee holding
Registrable Shares. As to any particular Registrable Shares, once issued, such
Registrable Shares shall cease to be Registrable Shares (1) when such
Registrable Shares have been registered under the Securities Act of 1933, as
amended, or any successor Federal statute (the "Act"), the Registration
Statement in connection therewith has been declared effective and they have been
disposed of pursuant to and in the manner described in such effective
Registration Statement, (2) when such Registrable Shares are sold or distributed
pursuant to Rule 144, (3) when such Registrable Shares have ceased to be
outstanding, or (4) when such Registrable Shares have been transferred to a
person or entity other than a Qualified Transferee. For purposes of this
Agreement, the term "Restricted Securities" shall mean, at any time and with
respect to any Stockholder or Qualified Transferee, the shares of Common Stock
which are held by such Stockholder or Qualified Transferee and which theretofor
have not been sold to the public pursuant to a Registration Statement or
pursuant to Rule 144 under the Act. For purposes of this Agreement, the term
"Registration Statement" shall mean any registration statement of the Company
which covers any of the Registrable Shares, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the
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Prospectus (defined herein) contained therein, all exhibits thereto and all
material incorporated by reference therein. For purposes of this Agreement, the
term "Prospectus" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
Prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein. For purposes of this Agreement, the term "Rule 144" shall
mean Rule 144 promulgated under the Act or any successor or similar rule
thereto, as may be enacted by the Securities and Exchange Commission (the
"Commission") from time to time.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. If the Company proposes to register
any of its securities under the Act (other than pursuant to (i) a
registration solely in connection with an employee benefit or stock
ownership plan on Form S-8 or any comparable or successor form, (ii)
a registration solely in connection with an acquisition consummated
in a manner which would permit registration of such securities to
the public on Form S-4 or any comparable or successor form or (iii)
a "shelf" or similar registration for use solely in connection with
future acquisitions), and the registration form to be used may be
used for the registration of Registrable Shares (a "Piggyback
Registration"), the Company will give prompt written notice to all
Holders of Registrable Shares of its intention to effect such a
registration (each a "Piggyback Notice"). Subject to Sections 2(b)
and 2(c) below, the Company will include in such registration all
shares of Registrable Shares which Holders of Registrable Shares
request the Company to include in such registration by written
notice given to the Company within twenty (20) days after the date
of receipt of the Piggyback Notice.
(b) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities by the Company and the managing underwriters for such
offering advise the Company in writing that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company
will include in such registration (i) first, the securities proposed
to be sold by the Company, (ii) second, the securities proposed to
be sold by any other persons with registration rights prior to those
of the Holders, (iii) third, the Registrable Shares requested to be
included in such registration, pro rata among the Holders of such
Registrable Shares on the basis of the number of shares owned by
each such Holder, and (iv) fourth, other securities requested to be
included in such registration.
(c) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback
Registration relates to an underwritten public offering of equity
securities held solely by holders of the Company's securities and
the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the
holders initially requesting such registration, the Company
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will include in such registration (i) first, the securities
requested to be included therein by the holders requesting such
registration, (ii) second, the securities proposed to be sold by any
other persons with registration rights prior to those of the
Holders, (iii) third, the Registrable Shares requested to be
included in such registration, pro rata among the Holders of such
Registrable Shares on the basis of the number of shares owned by
each such Holder, and (iv) fourth, other securities requested to be
included in such registration.
3. REGISTRATION PROCEDURES. Whenever the Holders of Registrable Shares
have requested that any Registrable Shares be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Shares in accordance with the intended method of
distribution thereof and will as expeditiously as possible:
(i) prepare and file with the Commission and in any event
within 60 days from the date of the request, a Registration
Statement with respect to such Registrable Shares on any appropriate
form under the Act, which form shall be selected by the Company and
shall be available for the sale of Registrable Shares in accordance
with the intended method or methods of distribution thereof and use
its best efforts to cause such Registration Statement to become
effective, provided that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the Company
will furnish to the counsel selected by the Holders of a majority of
the Registrable Shares included in such Registration Statement
copies of all such documents proposed to be filed, which documents
will be subject to the review of such counsel;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement and
supplements to the Prospectus used in connection therewith (and file
the Prospectus, as so supplemented, under Rule 424 under the Act, if
required) as may be necessary to keep such Registration Statement
effective for the applicable period in accordance with the intended
method of distribution not to exceed one year, and comply with the
provisions of the Act with respect to the disposition of all
securities included in such Registration Statement during such
period in accordance with the intended methods of distribution by
the selling Holders thereof set forth in such Registration Statement
or supplement to such Prospectus;
(iii) furnish to each selling Holder of Registrable Shares,
without charge, such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case
including all exhibits), the Prospectus included in such
Registration Statement (including each preliminary Prospectus) and
such other documents as such selling Holder may reasonably request
in order to facilitate the disposition of the Registrable Shares
owned by such selling Holder;
(iv) notify the selling Holders of Registrable Shares and the
managing underwriters, if any, promptly and (if requested by any
such Holders) confirm
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such advice in writing, (A) when a Prospectus, including any
Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by
the Commission for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (D) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of any of the Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and if
at any time the representations and warranties of the Company
contemplated by paragraph (x) below cease to be true and correct,
(E) of the existence of any fact which results in a Registration
Statement, a Prospectus or any document incorporated therein by
reference containing an untrue statement of a material fact or
omitting to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of
such jurisdictions as any selling Holder reasonably requests and do
any and all other acts and things which may be reasonably necessary
or advisable to enable such selling Holder to consummate the
disposition in such jurisdictions of the Registrable Shares owned by
such selling Holder, provided that the Company will not be required
(A) to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this
subparagraph, (B) to subject itself to taxation in any such
jurisdiction, or (C) to consent to general service of process in any
such jurisdiction;
(vi) notify each selling Holder of such Registrable Shares, at
any time when a Prospectus relating thereto is required to be
delivered under the Act, of the happening of any event referred to
in clause (iv)(E) of this Section 3, and, at the request of any such
selling Holder, prepare a supplement to such Prospectus or a
post-effective amendment to such Registration Statement so that, as
thereafter delivered to the purchasers of such Registrable Shares,
such Prospectus will not contain an untrue statement of a material
fact or omit to state any fact necessary to make the statements
therein not misleading;
(vii) cause all such Registrable Shares to be listed on each
securities exchange on which similar securities issued by the
Company are then listed and to be qualified for trading on each
system on which similar securities issued by the Company are from
time to time qualified;
(viii) provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such
Registration Statement and thereafter maintain such transfer agent
and registrar;
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(ix) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions as the Holders of a majority of the Registrable Shares being
sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Shares;
(x) in connection with an underwritten offering, use its best
efforts to (A) obtain opinions of counsel to the Company and updates
thereof, which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters,
addressed to the underwriters, covering the matters customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such underwriters;
and (B) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants, addressed to the
underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with underwritten offerings; make
available for inspection during customary business hours by any
underwriter participating in any disposition pursuant to a
registration statement, and any attorney or accountant retained by
such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all
information reasonably requested by such underwriter, attorney or
accountant in connection with such registration statement; provided,
that such underwriters execute prior thereto an agreement with the
Company that all such records, information or documents shall be
kept confidential by such persons unless (1) disclosure of such
records, information or documents is required by law or by a court
or administrative order or (2) such records, information or
documents are or become (but only when they become) generally
available to the public other than as a result of disclosure in
violation of this paragraph; and make available for inspection by
any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any
such underwriter, attorney, accountant or agent in connection with
such Registration Statement;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission;
(xii) permit any Holder of Registrable Shares which might be
deemed, in the sole and exclusive judgment of such Holder, to be an
underwriter or a controlling person (as defined in the Act) of the
Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel should be
included;
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(xiii) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Shares included in
such registration statement for sale in any jurisdiction, use its
reasonable efforts promptly to obtain the withdrawal of such order;
and
(xiv) provide a CUSIP number for all Registrable Shares, not
later than the effective date of the applicable registration
statement.
If any such registration or comparable statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company and if, in the sole and
exclusive judgment of such Holder, such Holder is or might be deemed to be a
controlling person of the Company, such Holder shall have the right to require
(A) the inclusion in such registration statement of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
of such securities by such Holder is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (B) in the event
that such reference to such Holder by name or otherwise is not required by the
Act or any similar Federal statute then in force, the deletion of the reference
to such Holder; provided, that with respect to this clause (B) such Holder shall
furnish to the Company an opinion of counsel to such effect, which opinion of
counsel shall be reasonably satisfactory to the Company.
4. REGISTRATION EXPENSES.
(a) DEFINITION. The term "Registration Expenses" means any expenses
incident to the Company's performance of or compliance with this
Agreement, including, without limitation, all registration and filing
fees, fees for the NASD, listing fees, fees and expenses of compliance
with securities or blue sky laws (including blue sky counsel for the
underwriters), printing expenses, messenger and delivery expenses,
internal expenses, the fees and expenses of counsel for the Company
(but not the fees and expenses of counsel to the Holders of the
Registrable Shares included in such registration) and all independent
certified public accountants, underwriting fees and expenses (excluding
discounts and commissions attributable to the Registrable Shares, which
shall be paid by the selling Holders out of the proceeds of the
offering) and the fees and expenses of any other Persons (defined
below) retained by the Company. For purposes of this Agreement, the
term "Person" shall be construed as broadly as possible and shall
include an individual or natural person, a partnership (including a
limited liability partnership), a company, an association, a joint
stock company, a limited liability company, a trust, a joint venture,
an unincorporated entity and a governmental authority.
(b) PAYMENT. The Company shall pay the Registration Expenses in
connection with any and all Piggyback Registrations.
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5. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify,
to the extent permitted by law, each Holder of Registrable Shares, such
Holder's general and limited partners, officers, directors, employees,
advisors and agents and each Person who controls (within the meaning of
the Act) such Holder against all losses, claims, damages, liabilities
and expenses caused by any untrue or alleged untrue statement of
material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus or any amendment thereof or supplement thereto
or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such Holder
expressly for use therein. In connection with an underwritten offering,
the Company will indemnify such underwriters, their officers and
directors and each Person who controls (within the meaning of the Act)
such underwriters to the same extent as provided above with respect to
the indemnification of the Holders of Registrable Shares.
(b) INDEMNIFICATION BY HOLDERS. In connection with any Registration
Statement in which a Holder of Registrable Shares is participating,
each such Holder will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use
in connection with any such Registration Statement or Prospectus and,
to the extent permitted by law, will indemnify the Company, its
directors, officers, employees, advisors, agents and each Person who
controls (within the meaning of the Act) the Company against any
losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the
Registration Statement, Prospectus or preliminary Prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any written
information or affidavit so furnished in writing by such Holder;
provided, that the obligation to indemnify will be individual to each
Holder and will be limited to the net amount of proceeds received by
such Holder from the sale of Registrable Shares pursuant to such
Registration Statement.
(c) NOTICE; DEFENSE OF CLAIMS. Any Person entitled to
indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability
for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld or delayed). An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses
of more than one special and one local counsel for all parties
indemnified by such indemnifying party with respect to such claim.
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(d) CONTRIBUTION. If the indemnification provided for in this
Section 5 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage or expense referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage,
or expense in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party on the other hand from the offering
of the Registrable Shares or (ii) if the allocation provided for by the
foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party
or parties on the one hand and the indemnified party on the other hand
in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof). The relative fault of the indemnifying
party and of the indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission. The obligation to contribute will be individual to each
Holder of Registrable Shares and will be limited to the amount by which
the net amount of proceeds received by such Holder from the sale of
Registrable Shares exceeds the amount of losses, liabilities, damages,
and expenses which such Holder has otherwise been required to pay by
reason of such statements or omissions.
(e) SURVIVAL. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director
or controlling Person of such indemnified party and will survive the
transfer of securities.
(f) UNDERWRITING AGREEMENT. To the extent that the provisions on
indemnification and contribution contained in the underwriting
agreement entered into in connection with an underwritten public
offering are in conflict with the provisions of this Section 5, the
provisions contained in the underwriting agreement shall control.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements, (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided, that no
Holder of Registrable Shares included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such Holder and
such Holder's intended method of distribution, and (iii) if requested by the
managing underwriter or underwriters or the Holders of a majority of the
Registrable Shares), agrees not to sell Registrable Shares or other securities
held by such Person in any transaction other than pursuant to such underwriting
for such period following the
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effective date of the Registration Statement relating to such underwriting as
determined by either the Board of Directors of the Company or the Holders of a
majority of the Registrable Shares; provided, that no Holder of Registrable
Shares shall be required to enter into such an agreement unless each other
Holder of Registrable Shares, each director and executive officer of the Company
and each other holder of at least one percent of the Common Stock then
outstanding enters into a substantially identical agreement relating to such
underwriting.
7. MISCELLANEOUS.
(a) INFORMATION AND REPORTING.
(i) The Company shall, at all times during which it is neither
subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
nor exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, upon the written request of any Stockholder, provide
in writing to such Stockholder and to any prospective transferee of
the Registrable Shares of such Stockholder the information
concerning the Company described in Rule 144A(d)(4) of the Act or
any successor rule under the Act ("Rule 144A Information"). Upon the
written request of any Stockholder, the Company shall cooperate with
and assist such Stockholder or any member of the National
Association of Securities Dealers, Inc. PORTAL system in applying to
designate and thereafter maintain the eligibility of the Registrable
Shares for trading through PORTAL. The Company's obligations under
this Section 7(a)(i) shall at all times be contingent upon receipt
from the prospective transferee of Registrable Shares of a written
agreement to take all reasonable precautions to safeguard the Rule
144A Information from disclosure to anyone other than Persons who
will assist such transferee in evaluating the purchase of any
Registrable Shares.
(ii) When it is first legally required to do so, the Company
shall register its Common Stock under Section 12 of the Exchange Act
and shall keep effective such registration and shall timely file
such information, documents and reports as the Commission may
require or prescribe under Section 13 of the Exchange Act. From and
after the effective date of the first Registration Statement filed
by the Company under the Act, the Company shall (whether or not it
shall then be required to do so) timely file such information,
documents and reports which a corporation, partnership or other
entity subject to Section 13 or 15(d) (whichever is applicable) of
the Exchange Act is required to file. The Company shall promptly
upon request furnish any Holder of Registrable Shares (A) a written
statement by the Company that it has complied with the reporting
requirements of Section 13 or 15(d) of the Exchange Act, (B) a copy
of the most recent annual or quarterly report of the Company, and
(C) such other reports and documents filed by the Company with the
Commission as such Holder may reasonably request in availing itself
of an exemption for the sale of Registrable Shares without
registration under the Act. The Company acknowledges and agrees that
the purposes of the requirements contained in this Section 7(a)(ii)
are
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to enable any such Holder to comply with the current public
information requirement contained in paragraph (c) of Rule 144 under
the Act, should such Holder ever wish to dispose of any of the
securities of the Company acquired by it without registration under
the Act in reliance upon Rule 144 (or any other similar exemptive
provision), and to qualify the Company for the use of registration
statements on Form S-3. In addition, the Company shall take such
other measures and file such other information, documents and
reports, as shall hereafter be required by the Commission as a
condition to the availability of Rule 144 under the Act (or any
similar exemptive provision hereafter in effect) and the use of Form
S-3. The Company also covenants to use its best efforts, to the
extent that it is reasonably within its power to do so, to qualify
for the use of Form S-3.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SHARES. The Company will not
take any action, or permit any change to occur, with respect to its
securities for the purpose of materially and adversely affecting the
ability of the Holders of Registrable Shares to include such Registrable
Shares in a registration undertaken pursuant to this Agreement or
materially and adversely affecting the marketability of such Registrable
Shares in any such registration (including, without limitation, effecting
a stock split or a combination of shares); provided, that this Section
7(b) shall not apply to actions or changes with respect to the Company's
business, balance sheet, earnings or revenue where the effect of such
actions or changes on the Registrable Shares is merely incidental.
(c) NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be
deemed effectively given when delivered personally or by facsimile
transmission or by overnight delivery service or 72 hours after being
mailed by first class certified or registered mail, return recent
requested, postage prepaid at the addresses of the Company and the
Stockholders, respectively, set forth in the Stock Purchase Agreement.
(d) SPECIFIC ENFORCEMENT. The Stockholders and the Company expressly
agree that the Stockholders will be irreparably damaged if this Agreement
is not specifically enforced. In addition to the rights granted in Section
7(m) of this Agreement, upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by the Company, the
Stockholders shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage,
and/or a decree for specific performance, in accordance with the
provisions hereof.
(e) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, no
amendment, modification, termination or cancellation of this Agreement
shall be effective unless made in writing signed by the Company and the
Holders of a majority of the Registrable Shares; provided, that no
amendment may be made to this Section 7(e) unless agreed upon by the
Company and the Holders of all the Registrable Shares.
(f) ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Shares pursuant to this Agreement may be
assigned (but only with all related obligations) by a Holder to any
transferee (a "Qualified Transferee") that acquires
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from a Holder either (i) 100,000 or more Registrable Shares or (ii) if
less than 100,000 Registrable Shares are owned by a Holder at the time of
a transfer, all of the Registrable Shares owned by such Holder, in either
case in connection with the permitted transfer of Registrable Shares. Such
assignment shall not affect the rights of Holders hereunder which shall
remain in full force in accordance with the terms hereof. Any transferring
Holder shall provide the Company with prior written notice of such
transfer(s)/assignment(s); provided, however, that the failure to provide
such notice shall not be deemed to preclude assignment hereunder.
(g) SEVERABILITY AND REFORMATION. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of the parties under this
Agreement would not be materially and adversely affected thereby, such
provision shall be fully separable, and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision had
never comprised a part thereof, the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance therefrom,
and in lieu of such illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Agreement a legal valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible, and the parties hereto request
the court or any arbitrator to whom disputes relating to this Agreement
are submitted to reform the otherwise illegal, invalid or unenforceable
provision in accordance with this Section 7(g).
(h) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, oral or written, formal or informal,
relating to such subject matter.
(i) HEADINGS. The headings of this Agreement are for convenience
only and do not constitute a part of this
Agreement.
(j) GOVERNING LAW. The construction, validity and interpretation of
this Agreement will be governed by the internal laws of the State of New
York without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
(k) FURTHER ASSURANCES. Each party to this Agreement hereby
covenants and agrees, without the necessity of any further consideration,
to execute and deliver any and all such further documents and take any and
all such other actions as may be necessary or appropriate to carry out the
intent and purposes of this Agreement and to consummate the transactions
contemplated hereby.
(l) COUNTERPARTS. This Agreement may be executed by facsimile and in
one or more counterparts, each of which shall be deemed to be an original,
but all of which shall be one and the same document.
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(m) ARBITRATION. IN ADDITION TO THE REMEDY PROVIDED IN SECTION 7(d)
OF THIS AGREEMENT, IN THE EVENT OF A DISPUTE HEREUNDER WHICH CANNOT BE
RESOLVED BY THE PARTIES AMONG THEMSELVES, SUCH DISPUTE SHALL BE SETTLED BY
ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE
AMERICAN ARBITRATION ASSOCIATION AND JUDGMENT ON THE AWARD RENDERED BY THE
ARBITRATION PANEL MAY BE ENTERED IN ANY COURT OR TRIBUNAL OF COMPETENT
JURISDICTION. THE COMPANY, THE FOUNDERS AND INVESTOR AGREE THAT ALL
ARBITRATIONS OCCURRING UNDER THIS SECTION 7(m) SHALL BE HELD IN NEW YORK,
NEW YORK. THE PARTIES AGREE THAT THE AAA OPTIONAL RULES FOR EMERGENCY
MEASURES OF PROTECTION SHALL APPLY TO THE PROCEEDINGS.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
THE STOCKHOLDERS: THE COMPANY:
eVENTURES GROUP, INC.,
a Delaware corporation
/s/ Andrew S. Pakula
--------------------------
Andrew S. Pakula
By: /s/ Olaf Guerrand-Hermes
---------------------------
Olaf Guerrand-Hermes
Senior Vice President
/s/ Laura Berland
--------------------------
Laura Berland
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