AUGI REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of January 3, 1996 by and between American United Global, Inc.,
a Delaware corporation ("AUGI" or the "COMPANY"), and the undersigned (each of
the undersigned other than AUGI is sometimes hereinafter referred to as a
"HOLDER"; the undersigned other than eXodus are sometimes hereinafter
collectively referred to as the "HOLDERS").
Reference is made to those certain Subscription Agreements of even date
herewith by and among AUGI and its subsidiary, eXodus Technologies, Inc.
("EXODUS"), on the one hand, and each of the Holders, on the other hand (each
such Subscription Agreement is sometimes hereinafter referred to as a
"SUBSCRIPTION AGREEMENT"; and all such Subscription Agreements are sometimes
hereinafter referred to collectively as the "SUBSCRIPTION AGREEMENTS").
Pursuant to SECTIONS 3(P) and 3(Q) of each Subscription Agreement, AUGI has
certain obligations with regard to registration of "AUGI CONVERSION COMMON
SHARES" issuable on conversion of the "PREFERRED SHARES" and the "AUGI WARRANT
SHARES" issuable upon exercise of the "AUGI WARRANTS" (as such terms are defined
in the aforesaid Subscription Agreements) for resale by the holders pursuant to
the "SECURITIES ACT" (as such term is hereinafter defined) and applicable State
"blue sky" laws, and to use its best efforts to cause the aforesaid registration
under the Securities Act to be declared effective by the "COMMISSION" (as such
term is hereinafter defined). The AUGI Conversion Common Shares and the AUGI
Warrant Shares are sometimes hereinafter referred to as "REGISTRABLE
SECURITIES". Each undersigned Holder agrees to furnish customary cooperation to
AUGI in the performance of its registration obligations, subject to the
following terms and conditions:
1. DEFINITIONS.
"AFFILIATE" of any specified "Person" (as such term is hereinafter
defined) means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; PROVIDED, HOWEVER, that beneficial ownership of 10% or
more of the voting securities of a Person shall be deemed to be control.
"AGREEMENT" has the meaning assigned to that term in the preamble to
this Agreement.
"AUGI" has the meaning assigned to that term in the preamble to this
Agreement.
"AUGI CONVERSION COMMON SHARES" has the meaning assigned to that term by
reference in the preamble to this Agreement.
"AUGI REGISTRATION" has the meaning assigned to that term in SECTION
2(A) of this Agreement.
"AUGI WARRANTS" has the meaning assigned to that term by reference in
the preamble to this Agreement.
"AUGI WARRANT SHARES" has the meaning assigned to that term by reference
in the preamble to this Agreement.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York, Borough of Manhattan are not
required to be open.
"COMMISSION" has the meaning assigned to that term in SECTION 2(C) of
this Agreement.
"COMPANY" has the meaning assigned to that term in the preamble to this
Agreement.
"EXCHANGE ACT" has the meaning assigned to that term in SECTION 2(D) of
this Agreement.
"EXODUS" has the meaning assigned to that term in the preamble to this
Agreement.
"HOLDER" or "HOLDERS" have the meanings assigned to those terms in the
preamble to this Agreement.
"INSPECTORS" has the meaning assigned to such term in SECTION 2(C)(IX)
of this Agreement.
"MAJORITY IN INTEREST" means a majority in interest of the Holders, as
determined by reference to their respective proportions of the aggregate number
of Registrable Securities issued to such Holders pursuant to the terms and
conditions of the Subscription Agreements and still held of record by such
Holders at the time of any such determination.
"PERSON" means any corporation, individual, joint-stock company, limited
liability company, joint venture, partnership, unincorporated association,
governmental regulatory entity, country, state or political subdivision thereof,
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trust, municipality or other entity.
"PREFERRED SHARES" has the meaning assigned to that term by reference in
the preamble to this Agreement.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of or compliance with this Agreement, including without limitation:
(i) all Commission, stock exchange, or National Association of Securities
Dealers, Inc. registration and filings fees, (ii) all fees and expenses incurred
by the Company in connection with compliance with state securities or blue sky
laws (including reasonable fees and disbursements of counsel for any
underwriters in connection with blue sky qualifications of any of the
Registrable Securities), (iii) all expenses of the Company pursuant to this
Agreement in preparing or assisting in preparing, word processing, printing and
distributing the registration statement relating to any of the Registrable
Securities, any underwriting agreements and other documents to effect the
registration of the Registrable Securities pursuant to this Agreement, (iv) all
fees and expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges pursuant to
SECTION 2(C)(VII) hereof, (v) all rating agency fees, if any, (vi) the fees and
disbursements of counsel for the Company and of the Company's independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, (vii) any
fees and disbursements of any underwriters customarily paid by issuers or
sellers of securities and the reasonable fees and expenses of any special
experts retained by the underwriters in connection with the registration
statement relating to any of the Registrable Securities; BUT "Registration
Expenses does NOT include (i) any underwriting discounts and commissions and
transfer taxes, if any, or (ii) the fees and disbursements of counsel to, and
accountants or other professionals retained by, any Holder.
"REGISTRABLE SECURITIES" has the meaning assigned to that term in the
preamble to this Agreement.
"SECURITIES ACT" has the meaning assigned to that term in SECTION 2 of
this Agreement.
"SHARES" means any securities of the Company and securities convertible
into, exchangeable for, or exercisable to acquire securities of the Company.
"SUBSCRIPTION AGREEMENT" has the meaning assigned to that term in the
preamble to this Agreement.
2. REGISTRATION RIGHTS.
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Pursuant to SECTIONS 3(P) and 3(Q) of each Subscription Agreement, AUGI
has certain obligations with regard to registration of AUGI Conversion Common
Shares issuable on conversion of the Preferred Shares and the AUGI Warrant
Shares issuable upon exercise of the AUGI Warrants (as such terms are defined in
the aforesaid Subscription Agreements) for resale by the Holders on a continuous
basis pursuant to Rule 415 pursuant to the Securities Act of 1933, as amended
(the "SECURITIES ACT") and applicable State "blue sky" laws, and to use its best
efforts to cause the aforesaid registration under the Securities Act to be
declared effective by the Commission. Each undersigned Holder shall be entitled
to have such Holder's Registrable Securities included in such registration
statement on the terms and conditions of the aforesaid SECTIONS 3(P) and 3(Q)
provided that such Holder furnishes customary cooperation to AUGI in the
performance of its registration obligations on the following terms and
conditions.
(a) EXPENSES. The Company shall pay all Registration Expenses in
connection with such registration of Registrable Securities pursuant to the
aforesaid SECTIONS 3(P) and 3(Q) (the "AUGI REGISTRATION"). However, each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the AUGI Registration, and the fees and disbursements of
counsel to, and accountants or other professionals, retained by, such Holder.
(b) INCLUSION OF SECURITIES BY THE COMPANY. The Company may include
shares of its securities for its own account in the AUGI Registration.
(c) REGISTRATION PROCEDURES. In connection with the AUGI Registration,
the Company shall use its best efforts to do the following:
(i) Prepare and file with the Securities and Exchange Commission
(the "COMMISSION"), in accordance with the provisions of SECTIONS 3(P) and 3(Q)
of the Subscription Agreements, a registration statement on Form S-3 or, if such
Form is not then available to the Company for this purpose, any other Form for
which Company then qualifies or which counsel for Company shall deem
appropriate, and which Form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its best efforts to cause such registration statement to become and remain
effective as provided in SECTIONS 3(P) and 3(Q) of the Subscription Agreements,
PROVIDED that the Company will notify the Holders whose Registrable Securities
are included in such AUGI Registration of any stop order issued or threatened by
the Commission and
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take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
(ii) Prepare and file with the Commission such amendments and
supplements to such AUGI Registration and the prospectus used in connection
therewith as may be necessary to keep such AUGI Registration effective for the
period specified in SECTIONS 3(P) and 3(Q) of the Subscription Agreements or
such shorter period that will terminate when all Registrable Securities covered
by such AUGI Registration statement have been sold (but not before the
expiration of the time periods referred to in Section 4(3) of the Securities Act
and Rule 174, or any successor thereto, if applicable), and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by the AUGI Registration during such period in accordance
with the intended methods of disposition by the sellers thereof set forth in the
AUGI Registration.
(iii) Furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such registration statement such number of
copies of such AUGI Registration, each amendment and supplement thereto (in each
case including all exhibits thereto), and the prospectus included in such AUGI
Registration (including each preliminary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder.
(iv) Use its best efforts to register or qualify such Registrable
Securities under such other state securities or "blue sky" laws of such
jurisdictions as each Holder including Registrable Securities in such AUGI
Registration, and each underwriter, if any, of Registrable Securities covered by
such AUGI Registration reasonably requests and do any and all other acts and
things that may be reasonably necessary or advisable to enable each such Holder
and each underwriter, if any, to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder; PROVIDED that
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
clause (iv), (B) subject itself to taxation or regulation of its business in any
such jurisdiction, or (C) consent to general service of process in any such
jurisdiction.
(v) Use its best efforts to cause the Registrable Securities
covered by such AUGI Registration to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable each such Holder to
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consummate the disposition of such Registrable Securities.
(vi) Immediately notify each Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event that comes to the Company's attention if as a result of
such event the prospectus included in the AUGI Registration contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
the Company will promptly prepare and furnish to each such Holder a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
(vii) Use its best efforts to cause all such Registrable
Securities to be listed on a national securities exchange in the United States
or NASDAQ and on each securities exchange on which similar securities issued by
the Company may then be listed, and enter into such customary agreements
including a listing application and indemnification agreement in customary form,
and to provide a transfer agent and registrar for such Registrable Securities
covered by the AUGI Registration no later than the effective date of the AUGI
Registration.
(viii) Enter into such customary agreements (including an
underwriting agreement or qualified independent underwriting agreement, in each
case, in customary form) and take all such other actions as the Majority in
Interest whose Registrable Securities are included in the AUGI Registration or
the underwriters retained by such Majority in Interest, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities, including customary representations, warranties, indemnities and
agreements.
(ix) Make available for inspection, by each such Holder, any
underwriter participating in any disposition pursuant to the AUGI Registration,
and the attorney, accountant or other agent retained by the Majority in Interest
or any such underwriter (collectively, the "INSPECTORS"), all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries, if any, as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees, and those of the Company's affiliates, if any, to
supply all information and respond to all inquiries reasonably requested by any
such Inspector in connection with the AUGI Registration; PROVIDED, that all such
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inspection, due diligence, and responses shall be undertaken during normal
business hours of the Company, without material disruption of the conduct of the
Company's business, and subject to customary confidentiality agreements.
(x) Use its best efforts to obtain a "cold comfort" letter from
the Company's appointed auditors in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the Majority in
Interest reasonably requests.
(xi) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to each Holder whose
Registrable Securities are included in the AUGI Registration, as soon as
reasonably practicable, an earnings statement covering a period of at least
twelve months beginning after the effective date of the registration statement
(as the term "effective date" is defined in Rule 158(c) under the Securities
Act) which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder.
It shall be a condition precedent to the obligation of the Company to
take any action with respect to any Registrable Securities of any Holder that
such Holder thereof shall furnish to the Company such information regarding such
Holder, the Registrable Securities and any other Shares held by such Holder and
the intended method of disposition of the Registrable Securities held by such
Holder as the Company shall reasonably request and as shall be required in
connection with the action taken by the Company; and, furthermore, that each
such Holder shall utilize such Holder's best efforts to facilitate the
completion and effectiveness of the AUGI Registration including, without
limitation, furnishing customary information (for inclusion in the AUGI
Registration and for due diligence purposes in connection therewith),
undertakings, and agreements in connection therewith and not materially
inconsistent with the other provisions of this Agreement.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in SECTION 2(C)(VI) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by SECTION 2(C)(VI) hereof, and, if so directed by the
Company such Holder will deliver to the Company (at the Company's expense) all
copies (including, without limitation, any and all drafts), other than permanent
file copies, then in such Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event that the Company
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shall give any such notice, the period mentioned in SECTION 2(C)(II) hereof
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to SECTION 2(C)(VI) hereof to and
including the date when the Holder shall have received the copies of the
supplemented or amended prospectus contemplated by SECTION 2(C)(VI) hereof.
(d) INDEMNIFICATION.
(i) INDEMNIFICATION BY COMPANY. In connection with the AUGI
Registration pursuant to this Agreement and SECTIONS 3(P) and 3(Q) of the
Subscription Agreements, the Company will indemnify and hold harmless, to the
full extent permitted by law, each Holder whose Registrable Securities are
included in the AUGI Registration, its directors and officers, general partners,
limited partners and managing directors, each other Person who participates as
an underwriter in the offering or sale of such securities and each other Person,
if any, who controls, is controlled by or is under common control with any such
Holder or any such underwriter within the meaning of the Securities Act (and
directors, officers, controlling Persons, partners and managing directors,
counsel, and accountants of any of the foregoing) against any and all losses,
claims, damages or liabilities, joint or several, and expenses (including (a)
reasonable fees and expenses of attorneys incurred by them in connection with
investigating or defending such loss, claim, liability, action or proceeding and
(b) any amounts paid in any settlement effected with the Company's consent,
which consent will not be unreasonably withheld) to which any such Holder, any
such director or officer or general or limited partner or managing director or
any such underwriter or controlling Person, counsel or accountants may become
subject under the Securities Act, United States state securities "blue sky"
laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (A) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in the AUGI Registration
under which such securities were registered under the Securities Act, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, (B) 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 (C) any violation or alleged violation by the Company
of any United States federal, state or common law rule or regulation applicable
to Company and relating to action required of or inaction by Company in
connection with the AUGI Registration; PROVIDED, HOWEVER, that Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
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liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such AUGI Registration or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by any Holder in its capacity as a shareholder in the
Company or any such director, officer, general or limited partner, managing
director, underwriter or controlling Person or their respective counsel or
accountants specifically stating that it is for use in the preparation thereof;
and, PROVIDED, FURTHER, that the Company shall not be liable to any Holder, any
Person who participates as an underwriter in the offering or sale of Registrable
Securities, if any, or any other Person, if any, who controls such underwriter
within the meaning of the Securities Act, or their respective counsel or
accountants pursuant to this SECTION 2(D)(I) with respect to any preliminary
prospectus or the final prospectus or the final prospectus as amended or
supplemented as the case may be, to the extent that any such loss, claim, damage
or liability of such Holder, underwriter or controlling or other Person results
from the fact that such underwriter sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter and such final prospectus, as then
amended or supplemented, had corrected any such misstatement or omission. The
indemnity provided for herein shall remain in full force and effect regardless
of any investigation made by or on behalf of any Holder or any such director,
officer, general partner, limited partner, managing director, underwriter or
controlling Person or their respective counsel or accountants and shall survive
the transfer of such securities by such Holder.
(ii) INDEMNIFICATION BY HOLDER AND UNDERWRITERS. The Company
will require, as a condition to including any Holder's Registrable Securities in
the AUGI Registration, that the Company shall have received an undertaking
reasonably satisfactory to it from each Holder or any underwriter of Registrable
Securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in PARAGRAPH (I) above) the Company and its directors,
officers, controlling Persons and all other prospective sellers and their
respective directors, officers, general and limited partners, managing
directors, and their respective controlling Persons and the counsel and
accountants of each of the foregoing with respect to any statement or alleged
statement in or omission or alleged omission from such AUGI
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Registration, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with written
information relating to such Holder or underwriter furnished to the Company or
its representatives through an instrument duly executed by or on behalf of any
such Holder or any underwriter specifically stating that it is for use in the
preparation of such AUGI Registration, preliminary, final or summary prospectus
or amendment or supplement, or a document incorporated by reference into any of
the foregoing. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or any Holder, any
underwriters or any of their respective directors, officers, general or limited
partners, managing directors or controlling Persons or their respective counsel
or accountants and shall survive the transfer of such securities by any Holder,
PROVIDED, HOWEVER, that no Holder shall be liable in the aggregate for any
amounts exceeding the product of the sale price per Registrable Security and the
number of Registrable Securities being sold pursuant to such AUGI Registration
or prospectus by such Holder.
(iii) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this SECTION 2(D), such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, promptly give
written notice to the indemnifying party of the commencement of such action,
PROVIDED, HOWEVER, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this SECTION 2(D), except to the extent that
the indemnifying party is actually materially prejudiced by such failure to give
notice. In case any such action is brought against an indemnified party, unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified party and indemnifying parties may exist in respect of such
claim, the indemnifying party will be entitled to participate in and, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such claim after the assumption
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of the defense thereof, and the indemnifying party will not be subject to any
liability for any settlement made without its consent (which consent shall not
be unreasonably withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement that 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. 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
counsel in any single jurisdiction for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the fees
and expenses of such additional counsel or counsels as may be reasonably
necessary. Notwithstanding anything to the contrary set forth herein, and
without limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
(iv) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding subsections of this SECTION 2(D) (with appropriate
modifications) shall be given by the Company and each Holder whose Registrable
Securities are included pursuant to this Agreement in the AUGI Registration
under the Securities Act, to the full extent permitted by applicable law, with
respect to any concurrent required registration or other qualification of
securities under any United States federal or state law or regulation or
governmental authority other than the Securities Act.
(v) CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this SECTION 2(D) is for any reason held to be unenforceable although applicable
in accordance with its terms, the Company, and each Holder and the underwriters
of Registrable Securities included in the applicable registration shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company,
each such Holder and the underwriters, in such proportions that the underwriters
are responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the prospectus bears to the
public offering price appearing thereon and the Company and each such Holder are
responsible for the balance; PROVIDED, HOWEVER, that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any
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Person who was not guilty of such fraudulent misrepresentation. As between the
Company and each Holder, such parties shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect
(A) the relative benefits received by the Company, on the one hand, and each
such Holder on the other hand, from the offering of the Registrable Securities
and any other securities included in such offering, and (B) the relative fault
of the Company, on the one hand, and each such Holder on the other, with respect
to the statements or omissions that resulted in such loss, liability, claim,
damage or expense, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or any such Holder, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Holders
agree that it would not be just and equitable if contribution pursuant to this
SECTION 2(D) were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. Notwithstanding anything to the contrary contained herein,
the Company and the Holders agree that any contribution required to be made by
any Holder pursuant to this SECTION 2(D) shall not exceed the net proceeds from
the offering of Registrable Securities (before deducting expenses) received by
the applicable Holder with respect to such offering. For purposes of this
SECTION 2(D), each Person, if any, who controls any Holder or an underwriter
within the meaning of Section 15 of the Securities Act shall have the same
rights to contribution as such Holder or such underwriter, and each director of
the Company, each officer of the Company who signed the AUGI Registration, and
each Person, if any, who controls the Company within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the Company.
(d) RULE 144. The Company agrees that it will file in a timely manner
all reports required to be filed by it pursuant to the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), and, if at any time Company is not
required to file such reports, it will make available to the public, to the
extent required to permit the sale of Registrable Shares by each Holder pursuant
to Rule 144, current information about itself and its activities as contemplated
by Rule 144 under the Securities Act, as such Rule may be amended from time to
time. Notwithstanding the foregoing, the Company may deregister any class of
its equity securities under Section 12 of the Exchange Act or suspend its
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duty to file reports with respect to any class of its securities pursuant to
Section 15(d) of the Exchange Act if it is then permitted to do so pursuant to
the Exchange Act and the rules and regulations thereunder.
3. MISCELLANEOUS.
(a) REMEDIES. Each party to this Agreement, in addition to being
entitled to exercise all rights provided herein, in the applicable Subscription
Agreement or granted by law, including recovery of liquidated or other damages,
will be entitled to seek specific performance of its rights under this
Agreement.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is materially inconsistent with the rights granted to any Holder in this
Agreement or otherwise materially conflicts with the provisions hereof. The
rights granted to each Holder hereunder do not materially conflict with and are
not materially inconsistent with the rights granted to the holders of Company's
securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the party against which the same
is sought to be enforced has obtained the written consent of each of the other
parties hereto.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to any Holder, at the address set forth beneath such
Holder's name on the signature pages hereof;
- Page 13 -AUGI Reg. Rts Agt.
(ii) if to Company, c/o:
American United Global, Inc.
00000 XX 00xx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
President
Telecopy No.: 000-000-0000
with a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, Xxxxx & Quentel
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Telecopy No.: 000-000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the U.S. Mail, First Class postage prepaid, if
mailed; when answered back, if telexed; when receipt properly acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities; PROVIDED, HOWEVER, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a holder unless and to the extent such successor or assign acquired
Registrable Securities from a Holder other than through the AUGI Registration.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Facsimiles of counterpart
pages shall be deemed to be originals.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
- Page 14 -AUGI Reg. Rts Agt.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement together with the Subscription
Agreements (and the exhibits thereto) is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
AMERICAN UNITED GLOBAL, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
- Page 15 -AUGI Reg. Rts Agt.
THE HOLDERS:
GOODLAND INTERNATIONAL INVESTMENT LTD.
By: /s/ Xxxxxxxxxx Xxxxxx
-----------------------------
Title: VP
--------------------------
Tax I.D. # NONE
---------------------
Address: x/x Xxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx XX00 Xxxxxxx
Xxxxxxxxx: Xx. Xxxxx Xxxxxx
No. of Preferred Shares:
140,000
------------------------
No. of AUGI Warrants:
122,500
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$3,501,225.00
------------------------
- Page 16 -AUGI Reg. Rts Agt.
WEYBURN OVERSEAS LTD.
By: /s/ Xxxxxxxxxx Xxxxxx
-----------------------------
Title: VP
--------------------------
Tax I.D. #: NONE
-------------------
Address: x/x Xxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx XX00 Xxxxxxx
Xxxxxxxxx: Xx. Xxxxx Xxxxxx
No. of Preferred Shares:
60,000
------------------------
No. of AUGI Warrants:
52,500
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$1,500,525.00
------------------------
- Page 17 -AUGI Reg. Rts Agt.
XXXXXX PARTNERS LP
By: /s/
-----------------------------
Title: General Managing Partner
--------------------------
Tax I.D. #: 00-0000000
-------------------
Address: 000 Xxxxxxxxx
Xxxxx 000X
Xxxx Xxxxxx, XX. 00000
Attn: Mr. Xxxx Xxxxxx
No. of Preferred Shares:
26,000
------------------------
No. of AUGI Warrants:
22,750
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$650,210.00
------------------------
- Page 18 -AUGI Reg. Rts Agt.
EDJ LIMITED
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------
Title: President
--------------------------
Tax I.D. #: NONE
-------------------
Address: x/x Xxxxxx Xxxxxxxxxx
Xxxxx Xx.
Xxxxxx House
Xxxxxx Xxx
Box N-3229
Nassau, Bahamas
Attn: Xx. Xxxxxxxx Xxxxxxxx
No. of Preferred Shares:
6,000
------------------------
No. of AUGI Warrants:
5,250
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$150,052.50
------------------------
- Page 19 -AUGI Reg. Rts Agt.
KODIAK CAPITAL, L.P.
By: /s/ Xxx X. Xxxxxx
-----------------------------
Title: Chairman/G.P.
--------------------------
Tax I.D. #: 00-0000000
-------------------
Address: 000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxx Xxxxxx
Xxxxxx/Xxxxxx Management
No. of Preferred Shares:
15,360
------------------------
No. of AUGI Warrants:
13,440
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$384,134.40
------------------------
- Page 20 -AUGI Reg. Rts Agt.
KODIAK INTERNATIONAL LTD.
By: /s/ Xxx X. Xxxxxx
-----------------------------
Title: Inv. Advisor
--------------------------
Tax I.D. #: NONE
-------------------
Address: x/x Xxxxxx Xxxxx
0 Xxx Xxxxxxxxxx
P.O. Box 6432
1211 Xxxxxx 0, Xxxxxxxxxxx
Address for Notice:
000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxx Xxxxxx
Xxxxxx/Xxxxxx Management
No. of Preferred Shares:
26,880
------------------------
No. of AUGI Warrants:
23,250
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$672,235.20
------------------------
- Page 21 -AUGI Reg. Rts Agt.
KODIAK OPPORTUNITY LP
By: /s/ Xxx X. Xxxxxx
-----------------------------
Title: Chairman/G.P.
--------------------------
Tax I.D. #: 00-0000000
-------------------
Address: 000 Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxx Xxxxxx
Xxxxxx/Xxxxxx Management
No. of Preferred Shares:
3,840
------------------------
No. of AUGI Warrants:
3,360
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$96,033.60
------------------------
- Page 22 -AUGI Reg. Rts Agt.
KODIAK OPPORTUNITY OFFSHORE LIMITED
By: /s/ Xxx X. Xxxxxx
-----------------------------
Title: Inv. Advisor
--------------------------
Tax I.D. #: NONE
-------------------
Address: x/x Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxx Xxxxxx
Xxxx Xxx Xxxx
X.X.X. 00000, SMB
Grand Cayman, Cayman Islands BWI
Attn: Xx. Xxxxxxx Xxxxxxx
No. of Preferred Shares:
1,920
------------------------
No. of AUGI Warrants:
1,680
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$48,016.80
------------------------
- Page 23 -AUGI Reg. Rts Agt.
THE GALILEO FUND, L.P.
By: /s/ DDJ Galileo, LLC, its General
Partner
-----------------------------
Title: Member
--------------------------
Tax I.D. #: 00-0000000
-------------------
Address: 000 Xxxxxx Xxxxxx, X-0
Xxxxxxxxx, XX 00000
Address for Delivery of Certificates:
Xxxxxxx Sachs & Co.
Attn.: Xxxxx Xxxxxx, 44th Fl.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Securities to Be Registered in Following
Name: Xxxxxxx Sachs & Company
FFC DDJ Galileo Fund, L.P.
No. of Preferred Shares:
112,800
------------------------
No. of AUGI Warrants:
98,700
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$2,820,987.00
------------------------
- Page 24 -AUGI Reg. Rts Agt.
XXXXXX OVERSEAS CORP.
By: /s/
-----------------------------
Title: Member
--------------------------
Tax I.D. #: N/A
-------------------
Address: Xxxxxx Overseas Corp.
c/o Goldman Xxxxx (Cayman)
Harbor Center, 2nd Fl.
Xxxxxx Town
Post Offfice Box 896
Grand Cayman Islands
Address for Delivery of Certificates:
Xxxxxxx Xxxxx & Co.
Attn.: Xxxxx Xxxxxx, 44th Fl.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Securities to Be Registered in Following
Name: Xxxxxxx Xxxxx & Company
FFC Xxxxxx Overseas Corp.
No. of Preferred Shares:
3,600
------------------------
No. of AUGI Warrants:
3,150
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$90,031.50
------------------------
- Page 25 -AUGI Reg. Rts Agt.
CROCODILE I, LLC
By: /s/
-----------------------------
Title: Member
--------------------------
Tax I.D. #: N/A
-------------------
Address: Crocodile I, LLC
c/o DDJ Capital Management, LLC
000 Xxxxxx Xxxxxx, X-0
Xxxxxxxxx, XX 00000
Address for Delivery of Certificates:
Xxxxxxx Xxxxx & Co.
Attn.: Xxxxx Xxxxxx, 44th Fl.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, X.X. 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Securities to Be Registered in Following
Name: Xxxxxxx Xxxxx & Company
FFC Crocodile I, LLC
No. of Preferred Shares:
3,600
------------------------
No. of AUGI Warrants:
3,150
------------------------
Aggregate Purchase Price
for Preferred Shares
and AUGI Warrants:
$90,031.50
------------------------
- Page 26 -AUGI Reg. Rts Agt.
