REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, is made and entered into as of
June 8, 2000 (this "AGREEMENT"), by and among eToys Inc., a Delaware corporation
(the "COMPANY"), and eParties Inc., a Delaware corporation (the "STOCKHOLDER").
WHEREAS, the Company has agreed to acquire, and the Stockholder has
agreed to sell, substantially all of the Stockholder's assets pursuant to a
Purchase Agreement, dated as of June 6, 2000 (the "Purchase Agreement"), among
the Company, the Stockholder and eCompanies Enterprises LLC, a Delaware limited
liability company;
WHEREAS, this Agreement is made pursuant to the Purchase Agreement;
WHEREAS, the Company has agreed to provide the registration rights set
forth in this Agreement; and
WHEREAS, the parties hereto desire to enter into this Agreement to
evidence the foregoing agreement of the Company and the mutual covenants of the
parties relating thereto.
NOW, THEREFORE, in consideration of the foregoing and the covenants of
the parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereto hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. In this Agreement, the following terms shall
have the following respective meanings:
"CLOSING DATE" means June 9, 2000.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"COMPANY" shall have the meaning ascribed to it in the recitals of
this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the relevant time.
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"HOLDER" shall mean a person who owns a Registrable Share, including
any transferees of the Registrable Shares from the Stockholder.
"INDEMNIFIED PARTY" shall have the meaning ascribed to it in Section
5(c).
"INDEMNIFYING PARTY" shall have the meaning ascribed to it in Section
5(c).
"PERSON" shall mean an individual, corporation, partnership, limited
liability company, estate, trust, association, private foundation, joint stock
company or other entity.
"PURCHASE AGREEMENT" shall have the meaning ascribed to it in the
recitals to this Agreement.
"REGISTRABLE SHARES" shall mean 175,000 of the 250,000 shares of
common stock of the Company referenced in Section 3.5 of the Purchase Agreement
to be issued by the Company to Stockholder in connection with the acquisition of
substantially all of the assets of Stockholder pursuant to the Purchase
Agreement, except that as to any particular Registrable Shares, such securities
shall cease to be Registrable Shares when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) such securities shall have been sold in
accordance with Rule 144 (or any successor provision) under the Securities Act,
(c) such securities shall have been otherwise transferred and new certificates
for such securities not bearing a legend restricting further transfer shall have
been delivered by the Company, (d) such securities may be sold or transferred in
accordance with Rule 144(k) (or any similar provision then in force) under the
Securities Act or (e) such securities shall have been acquired by the Company.
"REGISTRATION EXPENSES" shall mean all out-of-pocket expenses
(excluding Selling Expenses) incurred by the Company in complying with Sections
2 and 3 hereof, including, without limitation, the following: (a) all
registration, filing and listing fees; (b) fees and expenses of compliance with
federal and state securities laws; (c) printing, messenger, telephone, shipping
and delivery expenses; (d) fees and disbursements of counsel for the Company;
(e) fees and disbursements of all independent public accountants of the Company;
(f) fees and expenses of other Persons reasonably necessary in connection with
the Shelf Registration Statement, including any experts, retained by the
Company; and (g) fees and expenses incurred in connection with the listing of
the Registrable Shares on each securities exchange on which securities of the
same class are then listed.
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"RULE 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"SELLING EXPENSES" shall mean all discounts, underwriters fees,
selling commissions and stock transfer taxes applicable to any sale of
Registrable Shares.
"SHELF REGISTRATION EXPIRATION DATE" shall have the meaning ascribed
to it in Section 2(a).
"SHELF REGISTRATION STATEMENT" shall have the meaning ascribed to it
in Section 2(a).
"SUSPENSION RIGHT" shall have the meaning ascribed to it in Section
2(b).
Section 2. SHELF REGISTRATION.
(a) On or before thirty (30) days after the Signing Date (as such term is
defined in the Purchase Agreement), the Company shall prepare and file with the
Commission a registration statement on Form S-3 (the "SHELF REGISTRATION
STATEMENT") under Rule 415 under the Securities Act relating to the resale by
the Holders of all Registrable Shares. The Company shall use reasonable efforts
to cause the Shelf Registration Statement to be declared effective by the
Commission on or before ninety (90) days after the Signing Date, and, in any
event, if after the filing of the Shelf Registration Statement, the Company is
notified by the Commission that the Commission will not be reviewing the Shelf
Registration Statement, the Company agrees to file with the Commission, within
three (3) business days of the receipt of such notification, an acceleration
request letter (the "ACCELERATION REQUEST LETTER") requesting that the Shelf
Registration Statement be declared effective as soon as possible but in no event
later than two (2) business days after the date of the Acceleration Request
Letter. The Company shall use reasonable efforts to keep the Shelf Registration
Statement continuously effective until the date (the "SHELF REGISTRATION
EXPIRATION DATE") which is the earliest of (a) the one year anniversary of the
date of the Purchase Agreement, and, (b) the date on which all Registrable
Shares have been sold pursuant to the Shelf Registration Statement or Rule 144.
The Company shall not be required to file and have the Commission declare
effective more than one Shelf Registration Statement pursuant to this Section
2(a).
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(b) Notwithstanding the foregoing, the Company shall have the right (the
"SUSPENSION RIGHT") to defer the filing of the Shelf Registration Statement (or
suspend sales under a filed Shelf Registration Statement or defer the updating
of a filed Shelf Registration Statement and suspend sales thereunder) until the
reason for such deferral or suspension no longer exists but in no event for more
than 60 days in any twelve-month period, if the Company shall furnish to the
Holders a certificate signed by an executive officer of the Company stating
that, in the good faith judgment of the Company, it would materially interfere
with any financing, acquisition, corporate reorganization, merger or other
transaction involving the Company or any of its subsidiaries or would otherwise
be detrimental to the Company and its shareholders to file the Shelf
Registration Statement or amendment or supplement thereto at such time (or
continue sales under a filed Shelf Registration Statement) and therefore the
Company has elected to defer the filing of the Shelf Registration Statement (or
suspend sales under a filed Shelf Registration Statement). Prior to delivery of
such certificate, Xxxxx Xxxxxx, or any successor Chief Financial Officer, shall
consult with the Stockholder as to the possible implementation of the Suspension
Right. The receipt of such certificate and the information contained therein
shall be kept confidential by such Holders unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality.
Section 3. REGISTRATION PROCEDURES.
(a) The Company shall promptly notify each Holder of Registrable Shares of
the occurrence of the following events: (i) when the Shelf Registration
Statement or a post-effective amendment thereto has been filed with the
Commission and has become effective; (ii) the issuance by the Commission of any
stop order suspending the effectiveness of the Shelf Registration Statement;
(iii) the suspension by the Company of the Shelf Registration Statement pursuant
to Section 2(b); (iv) the Company's receipt of any notification of the
suspension of the qualification of any Registrable Shares covered by the Shelf
Registration Statement for sale in any jurisdiction; and (v) the existence of
any event, fact or circumstance that results in the Shelf Registration Statement
or prospectus relating to Registrable Shares or any document incorporated
therein by reference containing an untrue statement of material fact or omitting
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading during the distribution of securities.
(b) The Company agrees to use best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement or any
state qualification as promptly as practicable.
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(c) The Company agrees to promptly prepare and file with the Commission
such amendments and supplements to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement effective and to comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Shares covered by the Shelf Registration Statement, in each case
until the Shelf Registration Expiration Date.
(d) Each Holder agrees that upon receipt of any notice from the Company of
the occurrence of any event of the type described in Section 3(a) (ii), (iii),
(iv) or (v) to discontinue immediately its disposition of Registrable Shares
pursuant to the Shelf Registration Statement until such Holder's receipt of
written notice from the Company (which notice the Company agrees to give
promptly) that such disposition may be made and, if applicable, copies of the
supplemented or amended prospectus. At the written request of the Company, each
Holder will deliver to the Company all copies, other than permanent file copies,
in such Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(e) The Company shall provide to each Holder of Registrable Shares, at no
cost to the Holders, such number of copies of the Shelf Registration Statement
and any amendment thereto, the prospectus included therein and any
post-effective amendment or supplement thereto, and such other documents as such
Holder may reasonably request in order to facilitate its disposition of the
Registrable Shares covered by the Shelf Registration Statement. The Company
consents, subject to the provisions of Section 3(d), to the use of each such
prospectus or supplement thereto by the Holders in connection with the offering
and sale of the Registrable Shares covered by the Shelf Registration Statement
or any amendment thereto.
(f) The Company shall file a sufficient number of copies of the prospectus
and any post-effective amendment or supplement thereto with the Nasdaq National
Market (or, if the common stock of the Company is no longer listed thereon, with
such other securities exchange or market on which the common stock of the
Company is then listed) so as to enable the Holders to the benefits of the
prospectus delivery provisions of Rule 153 under the Securities Act.
(g) The Company agrees to use reasonable efforts to cause the Registrable
Shares covered by the Shelf Registration Statement to be registered with or
approved by such state securities authorities as any Holder may reasonably
request, PROVIDED, HOWEVER, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
which the Company would be required to (i) qualify generally to do business or
as a foreign corporation or as a dealer in securities in any jurisdiction where
each would not otherwise be required to so qualify
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but for this Section 3(g), (ii) file any general consent to service of process
in any jurisdiction where it is not as of the date hereof so, subject or (iii)
subject itself to taxation in any jurisdiction where it is not otherwise so
subject.
(h) Subject to the Company's Suspension Right, upon the existence of any
event, fact or circumstance requiring an amendment to the Shelf Registration
Statement or supplement to a prospectus relating to Registrable Shares the
Company agrees to notify the Holders and prepare and furnish to the Holders a
post-effective amendment to the Shelf Registration Statement or supplement to
the prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Shares, the 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.
(i) Subject to the Company's Suspension Right, the Company agrees to use
reasonable efforts to obtain the listing of all Registrable Shares (and any
shares of Common Stock issued to a Holder which have ceased to be Registrable
Shares in accordance with the definition thereof) that are covered by the Shelf
Registration Statement on each securities exchange on which securities of the
same class are then listed.
(j) The Company agrees to use reasonable efforts to comply with the
Securities Act and the Exchange Act in connection with the offer and sale of
Registrable Shares pursuant to the Shelf Registration Statement.
(k) The Company agrees to cooperate with the selling Holders to facilitate
the timely preparation and delivery of certificates representing Registrable
Shares to be sold pursuant to the Shelf Registration Statement and not bearing
any Securities Act legend, and to enable certificates for such Registrable
Shares to be issued for such numbers of shares and registered in such names as
the Holders may reasonably request at least two business days prior to any sale
of Registrable Shares.
Section 4. EXPENSES OF REGISTRATION. The Company shall pay all
Registration Expenses incurred in connection with the registration,
qualification or compliance pursuant to Sections 2 and 3 hereof. All Selling
Expenses incurred in connection with the sale of Registrable Shares by any of
the Holders shall be borne by the Holders selling such Registrable Shares. Each
Holder shall pay the expenses of its counsel.
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Section 5. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each Holder's officers and
directors, and each Person controlling such Holder within the meaning of Section
15 of the Securities Act, against all expenses, claims, losses, damages and
liabilities (including reasonable legal expenses), arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any registration statement or prospectus relating to Registrable Shares, or
any amendment or supplement thereto, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with information furnished in writing to the
Company by such Holder for inclusion therein
(b) Each Holder will indemnify the Company, each of its directors and
officers, and each person who controls the Company within the meaning of Section
15 of the Securities Act, against all claims, losses, damages and liabilities
(including reasonable legal fees and expenses) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any registration statement or prospectus relating to Registrable Shares, or any
amendment or supplement thereto, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement or
prospectus, in reliance upon and in conformity with information furnished in
writing to the Company by such Holder for inclusion therein. In no event will a
Holder be required to indemnify for an amount in excess of the net proceeds from
the Registrable Shares sold by such Holder pursuant to the Shelf Registration
Statement.
(c) Each party entitled to indemnification under this Section 5 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party otherwise than pursuant to
the provisions of this Section 5 except to the extent of the actual damages
suffered by such delay in notification. The Indemnifying Party shall assume the
defense of such action, including the employment of counsel to be chosen by the
Indemnifying Party (which counsel shall be reasonably satisfactory to the
Indemnified Party), and payment of expenses. The Indemnified Party
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shall have the right to employ its own counsel in any such case, but the
reasonable legal fees and expenses of such counsel shall be at the expense of
the Indemnified Party, unless the employment of such counsel shall have been
authorized in writing by the Indemnifying Party in connection with the defense
of such action, or the Indemnifying Party shall not have employed counsel to
take charge of the defense of such action or the Indemnified Party shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Indemnifying Party
(in which case the Indemnifying Party shall not have the right to direct the
defense of such action on behalf of the Indemnified Party), in any of which
events such fees and expenses shall be borne by the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 5 is unavailable
to a party that would have been an Indemnified Party under this Section 5 in
respect of any expenses, claims, losses, damages and liabilities referred to
herein, then each party that would have been an Indemnifying Party hereunder
shall, in lieu of indemnifying such Indemnified Party, contribute to the amount
paid or payable by such Indemnified Party as a result of such expenses, claims,
losses, damages and liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party on the one hand and such
Indemnified Party on the other in connection with the statement or omission
which resulted in such expenses, claims, losses, damages and liabilities, 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 the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Party or
such Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 5 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this paragraph. In no event will
a Holder be required to contribute an amount in excess of the net proceeds from
the Registrable Shares sold by such Holder pursuant to the Shelf Registration
Statement.
(e) No person guilty of fraudulent misrepresentation (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.
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Section 6. INFORMATION TO BE FURNISHED BY HOLDERS. Each Holder shall furnish
promptly to the Company such information as the Company may reasonably request
and as shall be required in connection with the Shelf Registration Statement and
related proceedings referred to in Sections 2 and 3 hereof. If any Holder fails
to provide the Company with such information within 10 days of receipt of the
Company's request, the Company's obligations under Section 2 or Section 3 hereof
with respect to such Holder or the Registrable Shares owned by such Holder shall
be suspended until such Holder provides such information.
Section 7. ADDITIONAL SHARES. The Company, at its option, may register under
the Shelf Registration Statement and any filings with any state securities
commissions filed pursuant to this Agreement, any number of unissued shares of
Common Stock or any shares of Common Stock owned by any other shareholder or
shareholders of the Company.
Section 8. RULE 144 SALES.
(a) The Company covenants that it will file the reports required to be
filed by the Company under the Exchange Act, so as to enable any Holder to sell
Registrable Shares pursuant to Rule 144 under the Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Shares pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to be
sold and not bearing any Securities Act legend, and enable certificates for such
Registrable Shares to be for such number of shares and registered in such names
as the selling Holders may reasonably request at least two business days prior
to any sale of Registrable Shares.
Section 9. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY STATE COURT OR ANY FEDERAL COURT SITTING IN
THE STATE OF DELAWARE IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND CONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE
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FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(b) ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
(c) AMENDMENT. No supplement, modification, waiver or termination of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby.
(d) NOTICES ETC. Each notice, demand, request, request for approval,
consent, approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a notice) required or desired to be given
or made under this Agreement shall be in writing and shall be effective and
deemed to have been received (i) when delivered in person, (ii) when sent by fax
with receipt acknowledged, (iii) five days after having been mailed by certified
or registered United States mail, postage prepaid, return receipt requested, or
(iv) the next business day after having been sent by a nationally recognized
overnight mail or courier service, receipt requested. Notices shall be addressed
as follows: (a) if to Stockholder, at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX
00000, Attn: Legal Department, fax 000-000-0000, or at such other address or fax
number as the Stockholder shall have furnished to the Company in writing, (b) if
to any successor or assignee of the Stockholder, at such address or fax number
as such successor or assignee shall have furnished the Company in writing, or
(c) if to the Company, at 0000 Xxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxxxx, fax: 000 000 0000, or at such other
address or fax number as the Company shall have furnished to the Limited
Partner. Any notice or other communication required to be given hereunder to a
Holder may instead be given to the designated representative of such Holder.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by fewer than all of the parties
hereto (PROVIDED that each party executes one or more counterparts), each of
which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
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(f) SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
(g) SECTION TITLES. Section titles are for descriptive purposes only and
shall not control or alter the meaning of the Agreement as set forth in the
text.
(h) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to benefit of the parties hereto and their respective successors and
assigns.
(i) REMEDIES. The Company and each Holder acknowledge that there would be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that the Company and each Holder, in addition
to any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of another party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(j) ATTORNEYS' FEES. If the Company or any Holder brings an action to
enforce its rights under this Agreement, the prevailing party in the action
shall be entitled to recover its costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred in connection with such action,
including any appeal of such action.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
eToys Inc.,
a Delaware corporation
By:
-------------------------
Name:
Title:
eParties, Inc.,
a Delaware corporation
By:
-------------------------
Name:
Title:
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