Registration Rights Agreement - E-centives Inc.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
February 18, 2000 by and among e-centives, Inc. (the "Company") and each holder
of "Series C Preferred Stock" (as that term is defined below) listed on Schedule
1 attached hereto (each a "Series C Holder"; collectively, the "Series C
Holders"). The Series C Holders, together with their respective successors and
assigns, are sometimes hereinafter referred to collectively as the "Investors"
and individually as an "Investor." The Investors and any other persons or
entities (except the Company) becoming a party hereto or being bound by the
provisions hereof are hereinafter sometimes referred to collectively as
"Stockholders" or individually as a "Stockholder."
RECITALS
A. The Company and the Investors are parties to a Series C Convertible
Preferred Stock Purchase Agreement dated as of February 18, 2000 (the "Purchase
Agreement"). A condition precedent to the obligations of the Company and the
Investors under the Purchase Agreement is the execution and delivery by the
parties hereto of this Agreement;
B. On the date hereof, each Investor is purchasing that number of shares of
the Company's Series C Convertible Preferred Stock, par value $.01 per share
(the "Series C Preferred Stock"), as is set forth opposite such Investor's name
in Schedule 1 attached hereto; and
C. The Company and the Investors wish to enter into this Agreement in order
to provide the Investors with certain registration rights with respect to the
Company's "Capital Stock" (as that term is defined below).
NOW, THEREFORE, in consideration of these premises and mutual agreements,
covenants and provisions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
The following definitions shall be applicable to the terms set forth below
as used in this Agreement:
"Affiliate." The term "Affiliate" means, with respect to any Person,
any other Person which directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with such
Person.
"Board." The term "Board" shall mean the Board of Directors of the
Company.
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"Capital Stock." The term "Capital Stock" means the capital stock of
the Company, including, without limitation, the Common Stock, the Series A
Preferred Stock, the Series B Preferred Stock, and the Series C Preferred
Stock.
"Commission." The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
federal securities laws.
"Common Stock." The term "Common Stock" shall mean the common stock of
the Company, par value $.01 per share.
"Company's Notice." The term "Company's Notice" shall have the meaning
set forth in Section 2.3 hereof.
"Conversion Shares." The term "Conversion Shares" shall mean any
shares of Common Stock issued or issuable upon conversion of shares of a
particular series of Preferred Stock.
"Initiating Holders." The term "Initiating Holders" shall mean the
holders of Registrable Stock initially requesting registration of Registrable
Stock pursuant to Section 2.1(c) of this Agreement.
"Long-Form Registration Statement." The term "Long-Form Registration
Statement" shall mean a registration statement on Form S-1, Form S-2 or any
similar form of registration statement adopted by the Commission from and after
the date hereof.
"Permitted Transferee." The term "Permitted Transferee" shall mean,
with respect to any Investor, (i) any other Investor; (ii) any Affiliate of any
Investor; (iii) any spouse, child and grandchild of an Investor, or a trust for
the benefit of any one or more members of such person; or (iv) any shareholder
or partner of any non-natural Investor upon a pro rata distribution by a
partnership or limited liability company to its partners or members or otherwise
upon the dissolution or liquidation of the non-natural Investor.
"Person." The term "Person" shall mean any individual, firm,
corporation, partnership, limited liability company, trust, joint venture,
governmental authority or other entity, and shall include any successor (by
merger or otherwise) of such entity.
"Preferred Stock." The term "Preferred Stock" shall mean,
collectively, the Series A Preferred Stock, the Series B Preferred Stock, and
the Series C Preferred Stock.
"Qualified Initial Public Offering" or "QIPO." The term "Qualified
Initial Public Offering" or "QIPO" shall mean a public offering of the Common
Stock (other than a registration relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a transaction under Rule 145 of the Securities Act, or a registration on
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
Registrable Stock), resulting in aggregate net proceeds (after expenses and
underwriting discounts) to the Company of not less than twenty million dollars
($20,000,000).
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"Register." The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act.
"Registrable Stock." The term "Registrable Stock" shall mean, (i) any
Conversion Shares from the Series C Preferred; (ii) any shares of Common Stock
issued or issuable with respect to such Conversion Shares by reason of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; and (iii) any
other shares of Common Stock now held or hereafter acquired by an Investor that
are not attributable to the Series C Preferred. A Person shall be deemed to be a
holder of Registrable Stock when such Person has a right to acquire such
Registrable Stock (whether by conversion or otherwise) regardless of whether
such acquisition has actually been effected. Each share of Registrable Stock
shall continue to be Registrable Stock in the hands of each subsequent holder
thereof subject to the limitations set forth in Section 2.14 hereof; provided,
however, that each share of Registrable Stock shall cease to be Registrable
Stock when (x) transferred by an Investor to any Person who is not a Permitted
Transferee, or if the transfer does not comply with the terms of Section 2.12 of
this Agreement, (y) a registration statement covering all Registrable Stock has
been declared effective under the Securities Act by the SEC and such Registrable
Stock has been disposed of pursuant to such effective registration statement, or
(z) the entire amount of Registrable Stock proposed to be sold in a single sale
may be distributed to the public without any limitation as to volume for such
sale pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act.
"Requesting Holders." The term "Requesting Holders" shall have the
meaning set forth in Section 2.1(c) hereof.
"Securities Act." The term "Securities Act" shall mean the Securities
Act of 1933, as amended.
"Series A Preferred Stock." The term "Series A Preferred Stock" shall
mean the Company's Series A Convertible Preferred Stock, $.01 par value per
share.
"Series B Preferred Stock." The term "Series B Preferred Stock" shall
mean the Company's Series B Convertible Preferred Stock, $.01 par value per
share.
"Short-Form Registration Statement." The term "Short-Form Registration
Statement" shall mean a registration statement on Form S-3 or any similar form
of registration statement adopted by the Commission from and after the date
hereof.
"Transaction Documents." The term "Transaction Documents" means,
collectively, this Agreement and the Purchase Agreement.
Section 1.2 Additional Definitions.
In addition to the foregoing, capitalized terms used in this Agreement and
not otherwise defined in this Article I shall have the meanings so given to such
terms herein.
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ARTICLE II
REGISTRATION RIGHTS
Section 2.1 Required Registrations.
(a) If, at any time after the earlier of six months after the closing
of a QIPO or February __, 2002, the Investors propose to dispose of shares of
Common Stock with an estimated offering price of at least $10,000,000, then such
Investors may request in writing that the Company effect a registration
statement, stating the number of shares of Registrable Stock to be disposed of
and the intended method of disposition of such shares.
(b) If, at any time at which the Company is eligible to file a
registration statement on a Short-Form Registration Statement, holders of
Registrable Stock propose to dispose of shares of Registrable Stock with an
estimated offering price of at least $3,000,000, then such holders may request
in writing that the Company effect such registration on a Short-Form
Registration Statement, stating the number of shares of Registrable Stock to be
disposed of and the intended method of disposition of such shares.
(c) Upon receipt of the request of the Investors pursuant to Section
2.1(a) or 2.1(b) above (in the case of Section 2.1(a) or Section 2.1(b),
hereinafter referred to as the "Initiating Holders"), the Company shall give
prompt written notice thereof to all other holders of Registrable Stock. Subject
to the provisions of Section 2.2 below, the Company shall use its reasonable
best efforts promptly to file with the Commission the applicable registration
statement to register under the Securities Act all shares of Registrable Stock
specified in the requests of the Initiating Holders and the requests (stating
the number of shares of Registrable Stock to be disposed of and the intended
method of disposition of such shares) of other holders of shares of Registrable
Stock (the "Requesting Holders") given within 30 days after receipt of such
notice from the Company.
Section 2.2 Limitations on Required Registration.
(a) The Company shall not be required to prepare and file more than
(i) two (2) Long-Form Registration Statements and (ii) three (3) Short-Form
Registration Statements in any 12-month period, which actually become or are
declared effective, at the request of the Initiating Holders pursuant to Section
2.1(a) or (b) hereof.
(b) (i) Only Common Stock may be included in a registration, and,
whenever a registration requested by Initiating Holders of Registrable Stock is
for a firm commitment underwritten offering, if the managing underwriter of the
offering determines that the number of shares of Common Stock so included which
are to be sold by the holders of Registrable Stock should be limited due to
market conditions, the holders (including both the Initiating Holders and the
Requesting Holders) of Registrable Stock proposing to sell their shares of
Registrable Stock in such underwriting and registration shall share pro rata in
the available portion of the registration in question, such sharing to be based
upon the number of shares of Registrable Stock then held by the Initiating
Holders and Requesting Holders; provided, however, that the number
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of shares of Registrable Stock to be included in such underwriting shall not be
reduced unless all other securities are first excluded from the underwriting.
(ii) If any holder of Registrable Stock disapproves of the terms
of the underwriting, such holder may elect to withdraw therefrom by written
notice to the Company, the underwriter and the Initiating Holders. The
Registrable Stock so withdrawn shall also be withdrawn from registration;
provided, however, that, if by the withdrawal of such Registrable Stock, a
greater number of shares of Registrable Stock held by other holders of
Registrable Stock may be included in such registration (up to the maximum of any
limitation imposed by the managing underwriter), then the Company shall offer to
all holders of Registrable Stock who have included Registrable Stock in the
registration the right to include additional Registrable Stock in the same
proportion used in determining the limitation imposed by the provisions of this
Section 2.2(b).
(c) Notwithstanding the foregoing, if the Company shall furnish to the
Initiating Holders and Requesting Holders a certificate signed by the President
of the Company stating that, in the good faith judgment of the Board, it would
be seriously detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 120 days after receipt of the request
of the Initiating Holders; provided, however, that the Company may not utilize
this right more than once in any 12-month period.
(d) The Company shall not be obligated to effect, or take any action
to effect, a registration pursuant to Section 2.1 if the Company shall have
previously effected an underwritten registration with respect to Registrable
Stock pursuant to Section 2.1 until a period of 180 days shall have elapsed from
the effective date of the most recent such previous registration.
(e) The Company shall not be obligated to effect, or take any action
to effect, a registration pursuant to Section 2.1 if, upon receipt of a
registration request pursuant to Section 2.1 hereof, the Company is advised in
writing (with a copy to each Initiating Holder) by a recognized national
independent investment banking firm selected by the Company that, in such firm's
opinion, a registration at the time and on the terms requested would adversely
affect any public offering of securities of the Company by the Company (other
than in connection with benefit and similar plans) (a "Company Offering") with
respect to which the Company has commenced preparations for a registration prior
to the receipt of a registration request pursuant to Section 2.1 hereof, until
the earlier of (i) 90 days after the completion of such Company Offering, (ii)
promptly after any abandonment of such Company Offering or (iii) 60 days after
the date of receipt of a registration request pursuant to Section 2.1.
(f) The Company shall not be obligated to effect, or take any action
to effect, a registration pursuant to Section 2.1 in any particular jurisdiction
in which the Company would be required to execute a general consent to service
of process in effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction and except as may
be required by the Securities Act or applicable rules or regulations thereunder.
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Section 2.3 Incidental (Piggyback) Registration. If the Company at any time
proposes to register any of its securities for sale for its own account or for
the account of any other Person (other than a registration relating to (i) the
sale of securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan or a Rule 145 transaction, or a registration on 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
Registrable Stock; or (ii) a registration pursuant to Section 2.1(a) or Section
2.1(b) above), it shall each such time give written notice (the "Company's
Notice"), at its expense, to all holders of Registrable Stock of its intention
to do so at least 30 days prior to the filing of a registration statement with
respect to such registration with the Commission. If any holder of Registrable
Stock desires to dispose of all or part of its Registrable Stock, it may request
registration thereof in connection with the Company's registration by delivering
to the Company, within 30 days after receipt of the Company's Notice, written
notice of such request (the "Investors' Notice") stating the number of shares of
Registrable Stock to be disposed of and the intended method of disposition of
such shares by such holder or holders. The Company shall use its reasonable best
efforts to cause all shares of Registrable Stock specified in the Investors'
Notice to be registered under the Securities Act so as to permit the sale or
other disposition (in accordance with the intended methods thereof as aforesaid)
by such holder or holders of the shares so registered, subject, however, to the
limitations set forth in Section 2.4 hereof.
Section 2.4 Limitations on Incidental Registration.
(a) If the registration of which the Company gives notice pursuant to
Section 2.3 above is for the purpose of permitting a disposition of securities
by the Company pursuant to a firm commitment underwritten offering, the notice
shall so state, and the Company shall have the right to limit the aggregate size
of the offering or the number of shares to be included therein by the
Stockholders if requested to do so in good faith by the managing underwriter of
the offering and only securities which are to be included in the underwriting
may be included in the registration.
(b) Whenever the number of shares which may be registered pursuant to
Section 2.3 is limited by the provisions of Section 2.4(a) above, the holders of
Registrable Stock shall have priority as to sales over the other holders of the
Company's securities, and the Company shall cause such other holders to withdraw
their shares from such offering to the extent necessary to allow all requesting
holders of Registrable Stock to include all of the shares so requested to be
included within such registration. Whenever the number of shares which may be
registered pursuant to Section 2.3 is still limited by the provisions of Section
2.4(a) above, after the withdrawal of the other holders of the Company's
securities, the Company shall have priority as to sales over the holders of
Registrable Stock and each holder hereby agrees that it shall withdraw its
securities from such registration to the extent necessary to allow the Company
to include all the shares which the Company desires to sell for its own account
to be included within such registration; provided, however, that in no event
shall the Registrable Stock requested to be registered pursuant to this Section
2.4 be reduced to below one-third of the total amount securities included in
such registration. The holders of Registrable Stock given rights by Section 2.3
above and participating in an offering pursuant to Section 2.3 shall share pro
rata in
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the available portion of the registration in question, such sharing to be based
upon the number of shares of Registrable Stock then held by each of such
participating holders, respectively.
(c) If at any time after giving a Company Notice, and prior to the
effective date of the registration statement filed pursuant thereto, the Company
shall determine for any reason not to register such securities, the Company may,
at its election, give written notice of such determination to the holders of
Registrable Stock and thereupon the Company shall be relieved of its obligation
to register such holders' Registrable Stock in connection with the registration
of such securities (but not from its obligation to pay Registration Expenses (as
defined below) to the extent incurred in connection therewith as provided
herein), without prejudice to the rights, if any, of the holders of Registrable
Stock immediately to request that such registration be effected as a required
registration under Section 2.1 hereof.
(d) If the incidental registration relates to a firm commitment
underwritten public offering, the Company shall so advise the holders of
Registrable Stock in the Company Notice. In such case, the Company shall have
the right to select the underwriters for the underwriting, and the right of any
holder of Registrable Stock to participate in such registration shall be
conditioned upon such holder's participation in such underwriting in accordance
with the terms and conditions thereof. All holders of Registrable Stock
proposing to distribute their Registrable Stock through such underwriting shall
(together with the Company) enter into an underwriting agreement in customary
form with the representative of the underwriter or underwriters selected by the
Company.
Section 2.5 Designation of Underwriter. In the case of any registration
initiated by the Initiating Holders pursuant to the provisions of Section 2.1
hereof which is proposed to be effected pursuant to a firm commitment
underwriting and, subject to the approval of the Company, which approval shall
not be unreasonably withheld, the Initiating Holders shall have the right to
designate the managing underwriter, and all holders of Registrable Stock
participating in the registration shall sell their shares only pursuant to such
underwriting.
Section 2.6 Registration Procedures.
(a) If and when the Company is required by the provisions of this
Agreement to use its reasonable best efforts to effect the registration of
shares of Registrable Stock, the Company shall:
(i) prepare and file with the Commission a registration statement
(the form and substance of which shall be subject to the approval of the holders
of a majority of the Registrable Stock to be included in such registration) with
respect to such shares and use its reasonable best efforts to cause such
registration statement to become and remain effective for a period described in
Section 2.13 hereof;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectuses used in
connection therewith as may be necessary to keep such registration statement
effective and current and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all shares
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covered by such registration statement, including such amendments and
supplements as may be necessary to reflect the intended method of disposition
from time to time of the holder or holders of Registrable Stock who have
requested that any of their shares be sold or otherwise disposed of in
connection with the registration (collectively, the "Prospective Sellers");
(iii) furnish to each Prospective Seller such number of copies of
each prospectus, including preliminary prospectuses, in conformity with the
requirements of the Securities Act, and such other documents as the Prospective
Seller may reasonably request in order to facilitate the public sale or other
disposition of the shares owned by it;
(iv) use its reasonable best efforts to register or qualify the
shares covered by such registration statement under such other securities or
blue sky or other applicable laws of such jurisdictions as each Prospective
Seller shall reasonably request to enable such seller to consummate the public
sale or other disposition of the shares owned by such seller, provided that the
Company shall not be required in connection therewith or as an election thereto
to qualify to do business or to file a general consent to service of process in
any such jurisdiction;
(v) upon written request, furnish to each Prospective Seller a
signed counterpart, addressed to the Prospective Sellers and their underwriters,
if any, of: (A) an opinion of counsel for the Company, dated the effective date
of the registration statement; and (B) a "comfort" letter signed by the
independent public accountants of the Company who have certified the Company's
financial statements included in the registration statement, covering
substantially the same matters with respect to the registration statement (and
the prospectus included therein) and (in the case of the accountants' "comfort"
letter) with respect to the events subsequent to the date of the financial
statements, as are customarily covered (at the time of such registration) in the
opinions of issuers' counsel and in accountants' letters delivered to the
underwriters in connection with underwritten public offerings of securities;
(vi) cause all such Registrable Stock to be listed on each
securities exchange or other securities trading market on which similar
securities issued by the Company are then listed;
(vii) provide a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such registration
statement;
(viii) enter into such customary agreements (including an
underwriting agreement) and take all such other customary actions as the holders
of a majority of the Registrable Stock being sold reasonably request in order to
expedite or facilitate the disposition of such Registrable Stock; and
(ix) make available for inspection by any Prospective Seller, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all reasonable 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
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requested by any such seller, underwriter, attorney, accountant or agent in
connection with the preparation of such registration statement.
(b) Each Prospective Seller of Registrable Stock shall furnish to the
Company such information as the Company may reasonably require from the
Prospective Seller for inclusion in the registration statement (and the
prospectus included therein).
(c) The Prospective Sellers shall not (until further notice) effect
sales of the shares covered by the registration statement after receipt of
facsimile or other written notice from the Company to suspend sales to permit
the Company to correct or update a registration statement or prospectus.
Section 2.7 Registration Expenses.
The Company shall pay all registration expenses relating to the
Registration Statements under Sections 2.1(a), 2.1(b) and 2.3 including all
registration and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company and the fees and expenses of one (1)
counsel for the holders of Registrable Stock selected by a majority of the
holders of Registrable Stock, state Blue Sky fees and expenses, the expense of
any special audits incident to or required by any such registration, and
reasonable expenses relating to all marketing and promotional efforts requested
by the managing underwriter, but shall exclude Selling Expenses. As used herein,
the term "Selling Expenses" shall mean, collectively, underwriting discounts,
selling commissions, brokerage fees, and the fees and expenses of counsel for
each holder of Registrable Stock (other than the counsel selected to represent
all holders of Registrable Stock).
Section 2.8 Indemnification.
(a) In the event of any registration of any of its securities under
the Securities Act pursuant to this Agreement, the Company shall indemnify and
hold harmless each Prospective Seller, each underwriter (as defined in the
Securities Act) and each controlling person of any Prospective Seller or
underwriter, if any (within the meaning of the Securities Act), against any
losses, claims, damages or liabilities, joint or several (or actions in respect
thereof), to which such Prospective Seller, underwriter or controlling person
may be subject under the Securities Act, under any other statute or at common
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement (or
alleged untrue statement) of any material fact contained in any registration
statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or any summary
prospectus issued in connection with any securities being registered, or any
amendment or supplement thereto, or any other document, (ii) 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, or (iii) any
violation by the Company of the Securities Act or any blue sky law, or any rule
or regulation promulgated under the Securities Act or any blue sky law, or any
other law, applicable to the Company in connection with any such registration,
qualification or compliance of any shares of Registrable Stock, and shall
reimburse each such Prospective Seller, underwriter or controlling person for
any legal or other
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expenses reasonably incurred by such Prospective Seller, underwriter or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company shall
not be liable to any Prospective Seller, underwriter or controlling person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or omission made in
such registration statement, preliminary prospectus, summary prospectus, final
prospectus, or amendment or supplement thereto, or any other document, in
reliance upon and in conformity with written information furnished to the
Company by such Prospective Seller, underwriter or controlling person,
respectively, specifically for use therein. The indemnity provided for herein
shall remain in full force and effect regardless of any investigation made by or
on behalf of such Prospective Seller, underwriter or controlling person, and
shall survive the transfer of such securities by such Prospective Seller.
(b) The Company may require, as a condition to including any
Registrable Stock of a Prospective Seller in any registration statement filed
pursuant to Section 2.1 or Section 2.3, that the Company shall have received an
undertaking satisfactory to it from such Prospective Seller, severally and not
jointly, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.8(a)) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and each other person, if any, who controls the Company within the meaning of
the Securities Act (except the indemnifying Prospective Seller, if such
indemnifying Prospective Seller so controls the Company), with respect to (i)
any untrue statement (or alleged untrue statement) of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any summary prospectus issued in connection
with any securities being registered, or any amendment or supplement thereto, or
any other document, (ii) 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, or (iii) any violation by the Prospective Seller of the
Securities Act or any blue sky law, or any rule or regulation promulgated under
the Securities Act or any blue sky law, or any other law, applicable to the
Company in connection with any such registration, qualification or compliance of
any shares of Registrable Stock, in each case if such statement or omission was
made in reliance on and in conformity with written information furnished to the
Company by such Prospective Seller specifically for use in preparing any such
registration statement, preliminary prospectus, final prospectus, summary
prospectus or amendment or supplement thereto, or in making any such filing or
representation. Each Prospective Seller hereunder shall promptly provide such
indemnification upon request. In no event shall a Prospective Seller's
obligation to indemnify any Person hereunder exceed the net proceeds from the
sale of the Prospective Seller's Registrable Stock in the offering. The
indemnity provided for herein shall remain in full force and effect regardless
of any investigation made by or on behalf of the indemnified party and shall
survive any transfer of the Registrable Stock held by the indemnifying party.
(c) If the indemnification provided for in Section 2.8(a) or Section
2.8(b) above is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then the indemnifying party,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities, in such proportion as is appropriate
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to reflect the relative fault of the indemnifying party on the one hand and of
the indemnified parties on the other in connection with the statements or
omissions or violations which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified parties 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
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 2.8(c) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities or actions in respect thereof referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 2.8(c), no
Prospective Seller shall be required to contribute any amount in excess of the
net proceeds from the sale of the Prospective Seller's Registrable Stock in the
Offering. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Company
may require, as a condition to including any Registrable Stock of a Prospective
Seller in any registration statement filed pursuant to Section 2.1 or Section
2.3, that the Company shall have received an undertaking satisfactory to it from
such Prospective Seller of such Registrable Stock, severally and not jointly, to
contribute to the amount paid or payable by an indemnified party hereunder as
and to the extent set forth in this Section 2.8(c), and each Prospective Seller
hereunder shall promptly provide such undertaking upon request.
(d) Promptly after receipt by an indemnified party under Section
2.8(a) or Section 2.8(b) above of written notice of the commencement of any
action, such indemnified party promptly shall, if a claim in respect thereof is
to be made under such Section, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
relieve it from any liability which it may have had to any indemnified party
hereunder only to the extent that it has been prejudiced as a proximate result
of such failure. In case any such action shall be brought against any
indemnified party, and it shall notify promptly the indemnifying party of the
commencement thereof, the indemnifying party shall assume the defense thereof,
with counsel satisfactory to such indemnified party (such approval not to be
unreasonably withheld or delayed); provided, however, that, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses (in which case the indemnifying party shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties). Upon the assumption by the
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<PAGE> 12
indemnifying party of the defense of such action, and approval by the
indemnified party of counsel, the indemnifying party shall not be liable to such
indemnified party under this Section 2.8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time, (ii) the indemnified party and its counsel do not actively
and vigorously pursue the defense of such action, or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party.
Section 2.9 Rights Which May Be Granted to Other Persons.
The Company shall not grant any Person registration rights which shall in
any way whatsoever impair the priority of the registration rights granted to the
Investors in this Agreement.
Section 2.10 Rule 144 Requirements.
Immediately after the date on which a registration statement filed by the
Company under the Securities Act becomes effective, the Company shall undertake
to make publicly available, and available to the holders of Registrable Stock,
such information as is necessary to enable the holders of Registrable Stock to
make sales of Registrable Stock pursuant to Rule 144 of the Securities Act. The
Company shall furnish to any holder of Registrable Stock, upon request, a
written statement executed by the Company as to the steps it has taken to comply
with the current public information requirements of Rule 144.
Section 2.11 Sale of Preferred Stock to Underwriter.
Notwithstanding any provision of this Agreement to the contrary, in lieu of
converting any shares of Preferred Stock prior to the filing of any registration
statement filed pursuant to this Agreement, the holder of such shares may sell
such shares of Preferred Stock to the underwriters of the offering being
registered upon the undertaking of such underwriters to convert the Preferred
Stock at the closing of the offering. The Company agrees to cause the Common
Stock issuable on the conversion of the Preferred Stock to be issued within such
time period as will permit the underwriters to make and complete the
distribution contemplated by the underwriting.
Section 2.12 Transfer of Registration Rights.
The registration rights of any Investor under this Agreement may be
transferred only to any transferee who acquires at least twenty percent (20%) of
such Investor's Registrable Stock (held as of the date of the initial issuance
of the Series C Preferred).
Section 2.13 Effective Period of Registration.
Once any registration effected by the Company pursuant to this Article II
becomes effective, the Company shall file all reports, financial statements and
other documents necessary to keep such registration statement current and the
registration in effect until the earlier of (i) the
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<PAGE> 13
sale of all securities offered for sale pursuant to the registration statement,
or (ii) three months from the effective date of the registration statement.
Section 2.14 Changes in Preferred Stock or Common Stock.
If, and as often as, there is any change in the Preferred Stock or Common
Stock by way of a stock split, stock dividend, combination or reclassification,
or through a merger, consolidation, reorganization or recapitalization, or by
any other means, appropriate adjustment shall be made in the provisions hereof
so that the rights and privileges granted hereby shall continue with respect to
the Preferred Stock or Common Stock as so changed.
ARTICLE III
MISCELLANEOUS
Section 3.1 Specific Performance.
Inasmuch as the shares of the Company's Capital Stock cannot be readily
purchased or sold in the open market, irreparable damage would result in the
event that the provisions of this Agreement are not specifically enforced.
Therefore, the rights to, or obligations of, the parties hereto shall be
enforceable in a court of equity by a decree of specific performance and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies, and all other remedies provided for in this Agreement,
shall, however, be cumulative and not exclusive and shall be in addition to any
other remedies which any party may have under this Agreement or otherwise.
Section 3.2 Endorsement of Certificate.
Upon the execution of this Agreement, each certificate for shares of
Capital Stock now registered or to be issued in the name of the Stockholders
shall be endorsed by the Secretary of the Company as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAW. THE SHARES
MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF (I) AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND ANY APPLICABLE STATE SECURITIES
LAW, (II) A "NO ACTION" LETTER OF THE SECURITIES AND EXCHANGE COMMISSION
WITH RESPECT TO SUCH SALE OR OFFER, OR (III) AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE CORPORATION THAT REGISTRATION UNDER SUCH ACT
AND ANY APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED WITH RESPECT TO
SUCH SALE OR OFFER."
All certificates for any shares of Capital Stock hereinafter issued to the
Stockholders shall bear the same endorsement, and this Agreement shall cover all
such shares of Capital Stock.
Section 3.3 Term.
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<PAGE> 14
Notwithstanding anything contained herein to the contrary, this Agreement
shall terminate, and all rights and obligations hereunder shall cease, upon the
earlier to occur of the termination of this Agreement as provided by applicable
Maryland law or the occurrence of any of the following events:
(a) The written agreement of each of the then parties hereto;
(b) The cessation of the Company's business; or
(c) The third anniversary of the Company's QIPO.
Section 3.4 Notices.
All notices, offers, acceptances, requests and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified or registered mail to the Stockholders at their
addresses on the Company records, and to the Company at the Company's principal
place of business. Any party hereto may change his or its address for notice by
giving notice thereof in the manner herein above provided.
Section 3.5 Parties in Interest.
All covenants and agreements contained in this Agreement, by or on behalf
of any of the parties executing this Agreement shall bind such parties, and
shall bind and inure to the benefit of the respective successors and permitted
assigns of the parties hereto whether so expressed or not; provided, however,
that the foregoing shall not in and of itself permit the assignment of the
rights and obligations hereunder or thereunder.
Section 3.6 Governing Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Maryland, without giving effect to its conflicts
of laws provisions. The parties hereto agree and acknowledge that each party has
retained counsel in connection with the negotiation and preparation of this
Agreement and the other Transaction Documents, and that any rule of construction
to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the foregoing agreements or any
amendment, schedule or exhibits thereto.
Section 3.7 Entire Agreement.
This Agreement and the other Transaction Documents, including all related
schedules and exhibits, constitute the entire understanding and agreement of the
parties hereto, and supersede all prior agreements and understandings, oral and
written, among the parties hereto with respect to the subject matter hereof and
thereof.
Section 3.8 Counterparts.
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<PAGE> 15
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 3.9 Amendments.
This Agreement may not be amended or modified, and no provisions hereof may
be waived, without the written consent of the Company and each of the Investors.
Section 3.10 Severability.
Each provision of this Agreement shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein. If one or more of
the provisions contained in this Agreement shall for any reason be held to be
excessively broad as to scope, activity, subject or otherwise so as to be
unenforceable at law, such provision or provisions shall be construed by the
appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
Section 3.11 Titles and Subtitles.
The titles and subtitles used in this Agreement are for convenience only
and are not to be considered in construing or interpreting any term or provision
of this Agreement.
Section 3.12 Pronouns.
All pronouns used herein shall be deemed to refer to the masculine,
feminine or neuter gender as the context requires.
[Signatures Appear On The Following Page]
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<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
WITNESS/ATTEST: e-centives, Inc.
/s/ KAMRAN AMJADI
---------------------------------------
/s/ MEHRDAD AKHAVAN By: /s/ KAMRAN AMJADI (SEAL)
-------------------------------- -----------------------------
Name: Mehrdad Akhavan Name: Kamran Amjadi
--------------------------- ------------------------
Title: President & COO Title: CEO
-------------------------- -----------------------
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<PAGE> 17
PURCHASERS:
VENTURETEC, INC.
By: /s/ PETER FRIEDLI
-------------------------------------
Title: President
----------------------------------
PETER FRIEDLI
/s/ PETER FRIEDLI
----------------------------------------
SPRING TECHNOLOGY CORP.
By: [Illegible]
-------------------------------------
Title: INVESTMENT MANAGER
----------------------------------
(continued on next page)
[Registration Rights Agreement]
<PAGE> 18
SWISSFIRST BANK AG
By: /s/ THOMAS MATTER/ /s/ WERNER ERISMANN
---------------------------------------
Title: Chief Executive Officer/ Chief Risk
Officer
------------------------------------
POWER EQUITY AG
By: H. GLAUS
---------------------------------------
Title: Vice Chairman
------------------------------------
WORLD COMMUNICATIONS AG
By: /s/ DR. KURTALIG /s/ RENE WILLI
---------------------------------------
Title: Director Director
------------------------------------
BG INVESTMENTS LTD.
By: [Illegible]
---------------------------------------
Title: Director/Member of the Board
------------------------------------
(continued on next page)
[Registration Rights Agreement]
<PAGE> 19
THIRY-FIVE EAST PARTNERS (ONE) LLC
By: /s/ TODD J. SLOKIN
-------------------------------------
Title: Executive Vice President
----------------------------------
(continued on next page)
[Registration Rights Agreement]
<PAGE> 20
EXCITE, INC.
By: /s/ Mark Stevens
-------------------------------------
Title: Executive Vice President
----------------------------------
SELIGMAN COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J&W Seligman & Co.
Incorporated, its investment advisor
By: [Illegible]
-------------------------------------
Title: Managing Director
----------------------------------
SELIGMAN NEW TECHNOLOGIES FUND, INC.
By: J&W Seligman & Co.
Incorporated, its investment advisor
By: [Illegible]
-------------------------------------
Title: Managing Director
----------------------------------
SELIGMAN INVESTMENT OPPORTUNITIES
(MASTER) FUND - NTV PORTFOLIO
By: J&W Seligman & Co.
Incorporated, its investment advisor
By: [Illegible]
-------------------------------------
Title: Managing Director
----------------------------------
MOORE GLOBAL INVESTMENTS, LTD.
By: Moore Capital Management, Inc.
Trading Manager
By: /s/ Savvas Savvinidis
-------------------------------------
Savvas Savvinidis
Title: Director of Operations
----------------------------------
REMINGTON INVESTMENT STRATEGIES LP
By: [Illegible]
-------------------------------------
Title:
----------------------------------
MOORE TECHNOLOGY VENTURE FUND, LP II
By: Moore Capital Management, Inc.
Trading Manager
By: /s/ Savvas Savvinidis
-------------------------------------
Savvas Savvinidis
Title: Director of Operations
----------------------------------
[Registration Rights Agreement]
<PAGE> 21
SCHEDULE 1
<TABLE>
<CAPTION>
NUMBER PURCHASE
NAME OF SHARES PRICE
---- --------- --------------
<S> <C> <C>
Venturetec, Inc. 196,080 $ 2,000,016
Peter Friedli 49,608 $ 506,001.60
Spring Technology, Inc. 49,020 $ 500,004
Swissfirst Bank AG 24,509 $ 249,991.80
Power Equity Group AG 24,705 $ 251,991
World Communications Development AG 48,235 $ 491,997
BG Investments Ltd. 98,039 $ 999,997.80
Seligman Communications & Information Fund, Inc. 98,039 $ 999,997.80
Seligman New Technologies Fund, Inc. 542,157 $ 5,530,001.40
Seligman Investment Opportunities Fund - NTV Portfolio 144,118 $ 1,470,003.60
Excite, Inc. 367,648 $ 3,750,009.60
Moore Global Investments, Ltd. 196,079 $ 2,000,005.80
Remington Investment Strategies, LP 49,019 $ 499,993.80
Moore Technology Venture Fund, LP II 245,099 $ 2,500,009.80
Thirty-Five East Partners (One) LLC 196,079 $ 2,000,005.80
--------- --------------
Totals 2,328,434 $23,750,026.80
</TABLE>