REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of the day of December 2001, executed and delivered
by Jaguar Investments, Inc. (the "Company") in favor of the Holders (as defined
below).
WHEREAS, R&M Capital Partners, Inc. ("R&M"), the largest stockholder of
the Company sold 1,000,000 shares (the "Shares") of common stock of Jaguar to
G-P USW, Inc. ("G-P");
WHEREAS, in connection with R&M's sale of the Shares to G-P, R&M agreed
to cause the Company to register the Shares and deliver an estoppel letter in
the form of Exhibit A hereto (the "Estoppel Letter");
WHEREAS, the Company desires for G-P to be a stockholder of the
Company; and
NOW, THEREFORE, for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged by the Company, the Company hereby
agrees as follows:
1. Demand Registration.
(a) At any time after March 18, 2002, any "Majority
Holder" (as such term is defined below) of the Shares (the "Registrable
Securities") shall have the right, on two (2) occasions, exercisable by written
notice to the Company (the "Demand Registration Request"), to have the Company
prepare and file with the Securities and Exchange Commission (the "SEC"), at the
sole expense of the Company, a registration statement (the "Demand Registration
Statement") and such other documents, including a prospectus, as may be
necessary (in the opinion of both counsel for the Company and counsel for such
Majority Holder), in order to comply with the provisions of the Act, so as to
permit a public offering and sale of the Registrable Securities by the Holders
thereof. The Company shall use its best efforts to cause the Registration
Statement to become effective under the Act on or before the sixtieth (60th) day
following the Demand Registration Request (the "Demand Date"), so as to permit a
public offering and sale of the Registrable Securities by the Holders thereof.
If the Demand Registration Statement is not effective on or prior to the Demand
Date, the Company shall pay to the Holders $20,000 (pro rata among the Holders)
on the day immediately following the Demand Date and on each monthly anniversary
of the Demand Date thereafter until the Registration Statement is effective. If
the Demand Registration Statement fails to remain effective under the Act at any
time after it has become effective, the Company shall pay to the Holders $20,000
(pro rata among the Holders) on the 30th day after it has failed to remain
effective and on each monthly anniversary thereafter until the Demand
Registration Statement becomes effective.
(b) Once effective, the Company covenants and agrees to
use its best efforts to maintain the effectiveness of the Demand Registration
Statement until the earlier of (i) the date that all of the Registrable
Securities have been sold pursuant to a Demand Registration Statement or Rule
144 of the General Rules and Regulations promulgated under the Act ("Rule 144"),
or (ii) the date that the Holders of the Registrable Securities receive an
opinion of counsel to the Company that all of the Registrable Securities may be
freely traded (without limitation or restriction as to quantity or timing and
without registration under the Act) pursuant to Rule 144 or otherwise. If the
Company fails to keep the Demand Registration Statement continuously effective
during such period, then the Company shall, promptly use its best efforts to
update the Demand Registration Statement or file a new registration statement
covering the unsold Registrable Securities, subject to the terms and provisions
hereof.
(c) The Term "Majority Holder" shall mean the holder or
holders of a majority of the Registrable Securities. Anything herein contained
to the contrary notwithstanding, the provisions of this Agreement shall not
apply to, and the term "Registrable Securities" as used in this Agreement shall
not include, any securities after they have been sold by a Holder pursuant to an
effective Registration Statement (as hereinafter defined) under the Act or
pursuant to Rule 144.
2. Piggyback Registration. If, at any following the date hereof,
the Company proposes to prepare and file one or more registration statements or
amendments, including post-effective amendments, or supplements thereto covering
any of the Company's equity or debt securities held by the Company or any of its
shareholders, in such case other than pursuant to Form S-4 or Form S-8 or
successor form (collectively, a " Piggyback Registration Statement"), it will
give written notice of its intention to do so by registered mail ("Notice"), at
least thirty (30) business days prior to the filing of each such Registration
Statement, to each Person (defined hereafter) who beneficially holds Registrable
Securities and each of the successors, assigns and transferees of each of such
Persons (individually, a "Holder" and collectively, "Holders"). "Person" as used
herein shall mean any individual, sole proprietorships, partnership,
corporation, association, joint venture, trust, unincorporated entity or other
entity, or the government of any country or sovereign state, or of any state,
province, municipality or other political subdivision thereof.
Upon the written request of a Holder or Holders, made within twenty
(20) business days after receipt of the Notice, that the Company include all or
a portion of the Registrable Securities held by such Holders ("Piggyback
Securities") in the proposed Piggyback Registration Statement (each such Holder,
a "Requesting Holder"), the Company shall use its best efforts to cause such
Registration Statement to be declared effective under the Act, by the SEC so as
to permit the public sale by the Requesting Holders of their Piggyback
Securities pursuant thereto, at the Company's sole cost and expense and at no
cost or expense to the Requesting Holders. However, if, in the written opinion
of the Company's managing underwriter, if any, for the offering evidenced by
such Piggyback Registration Statement, the inclusion of all or a portion of the
Piggyback Securities, when added to the securities being registered, will exceed
the maximum amount of the Company's securities which can be marketed either (i)
at a price reasonably related to their then-current market value or (ii) without
otherwise materially adversely affecting the entire offering, then the Company
may exclude from such offering all or a portion of the Piggyback Securities.
If securities are proposed to be offered for sale pursuant to such
Piggyback Registration Statement by other security holders of the Company and
the total number of securities to be offered by the Requesting Holders and such
other selling security holders is required to be reduced pursuant to a request
from the managing underwriter (which request shall be made only for the reasons
and in the manner set forth above), the aggregate number of Piggyback Securities
to be offered by Requesting Holders pursuant to such Piggyback Registration
Statement shall equal the number which bears the same ratio to the maximum
number of securities that the underwriter believes may be included for all the
selling security holders (including the Requesting Holders) as the original
number of Piggyback Securities proposed to be sold by the Requesting Holders
bears to the total original number of securities proposed to be offered by the
Requesting Holders and the other selling security holders.
Notwithstanding the provisions of this Section 2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 2 (irrespective of whether any written request for inclusion of
Piggyback Securities shall have already been made) to elect not to file any such
proposed Piggyback Registration Statement or to withdraw the same after its
filing but prior to the effective date thereof.
3. Additional Covenants of the Company With Respect to
Registration.
(a) In connection with any registration of Registrable
Securities pursuant to Sections 1 or 2 above, the Company shall furnish each
Holder of Registrable Securities included in a Demand Registration Statement or
a Piggyback Registration Statement (each of which is sometimes referred to as a
"Registration Statement") with such reasonable number of copies of such
Registration Statement, related preliminary prospectus and prospectus meeting
the requirements of the Act, and other documents necessary or incidental to the
-2-
registration and public offering of such Registrable Securities, as shall be
reasonably requested by the Holder to permit the Holder to make a public
distribution of such Registrable Securities.
(b) If any stop order shall be issued by the SEC in
connection with any Registration Statement filed pursuant to Sections 1 or 2
above, the Company will use its best efforts to obtain the removal of such
order.
(c) The Company shall pay all costs, fees, and expenses
in connection with all Registration Statements filed pursuant to Sections 1 and
2 above, including, without limitation, the Company's legal and accounting fees,
printing expenses, and blue sky fees and expenses; provided, however, that the
Holders shall be solely responsible for the fees of any counsel retained by the
Holders in connection with such registration and any transfer taxes or
underwriting discounts, commissions or fees applicable to the Registrable
Securities sold by the Holders pursuant thereto.
(d) The Company will use its best efforts to qualify any
Registrable Securities included in a Registration Statement for sale in such
states as the Holders of such securities shall reasonably request, provided that
no such qualification will be required in any jurisdiction where, solely as a
result thereof, the Company would be subject to general service of process or to
taxation or qualification as a foreign corporation doing business in such
jurisdiction.
(e) As promptly as practicable after becoming aware of
such event, and in no event later than two (2) business days after becoming
aware of such event, notify each Holder of the happening of any event of which
the Company has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and use its best efforts promptly to
prepare a supplement or amendment to the Registration Statement or other
appropriate filing with the SEC to correct such untrue statement or omission,
and deliver a number of copies of such supplement or amendment to each Holder as
such Holder may reasonably request.
(f) As promptly as practicable after becoming aware of
such event, and in no event later than two (2) business days after becoming
aware of such event, notify each Holder of the issuance by the SEC or any "blue
sky" or state regulatory authorities of any notice of effectiveness or any stop
order or other suspension of the effectiveness of the Registration Statement.
(g) Provide a transfer agent and registrar, which may be
a single entity, for the Common Stock not later than the effective date of the
Registration Statement.
(h) Take all other reasonable actions necessary to
expedite and facilitate disposition by the Holder of the Registrable Securities
pursuant to the Registration Statement.
(i) Neither the filing of a Registration Statement by the
Company pursuant to this Agreement nor the making of any request for
prospectuses by the Holder shall impose upon the Holder any obligation to sell
the Holder's Registrable Securities.
(j) The Holder, upon receipt of notice from the Company
that an event of the kind described in Sections 3(e) or (f) has occurred which
requires a post-effective amendment to the Registration Statement or a
supplement to the prospectus included therein, shall promptly discontinue the
sale of Registrable Securities until the Holder receives a copy of a
supplemented or amended prospectus from the Company, which the Company shall
provide immediately after such notice.
-3-
(k) The Company shall take all steps necessary to list
the Shares on the principal securities exchange or the Nasdaq Stock Market, Inc.
on which the Common Stock is listed for trading.
4. Other Rights. The rights granted to the Holders under this
Agreement are in addition to any other rights previously granted any such Holder
or subsequently granted to any such Holder with respect to the Shares. In
addition, the Company acknowledges that in connection with the sale of the
Shares, R&M agreed to assign the rights with respect to the Shares set forth in
the Estoppel Letter to G-P. The Company agrees that G-P and any subsequent
transferee of the Shares are entitled to such rights, and will simultaneously
with the execution and delivery of this Agreement, execute and deliver to G-P
the Estoppel Letter.
5. Indemnification and Contribution.
(a) In connection with any Registration Statement
covering Registrable Securities, the Company agrees to indemnify and hold
harmless each Holder, the affiliates of each such Holder, the directors,
partners, officers, employees and agents of each such Holder and each person who
controls any such Holder within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement as originally filed or in any amendment thereof, or in any preliminary
prospectus or prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have. The Company also
agrees to indemnify and provide contribution to each person who may be deemed to
be an underwriter (for purposes of the Act) with respect to the Registrable
Securities ("Underwriters"), their officers and directors, and each person who
controls each such Underwriter, on substantially the same basis as that of the
indemnification of and contribution to the Holders provided in this Section 5.
(b) By its participation in a Registration Statement,
each Holder shall be deemed to have agreed to indemnify and hold harmless (i)
the Company, (ii) each of its directors, (iii) each of its officers who signs
such Registration Statement and (iv) each person who controls the Company within
the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Holder, but only with respect
to written information relating to such Holder furnished to the Company by or on
behalf of such Holder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have. Each Holder shall also be
deemed to have agreed to indemnify and contribute to each Underwriter, their
officers and directors, and each person who controls each such Underwriter, on
substantially the same basis as that of the indemnification of and contribution
to the Company provided in this Section 5. Anything in this Agreement contained
to the contrary notwithstanding, the liability of each Holder for
indemnification or contribution hereunder shall be limited to the amount of
proceeds received by such Holder in the offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party in writing of the
-4-
commencement thereof; but the failure so to promptly notify the indemnifying
party will not relieve the indemnifying party from liability under Section 5(a)
or 5(b) hereof unless and to the extent that it is materially prejudiced
thereby. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, 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, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnified party shall not settle or compromise
any action for which it seeks indemnification or contribution hereunder without
the prior written consent of the indemnifying party, which consent shall not be
unreasonably withheld. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in Section
5(a) or 5(b) is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Registration Statement which resulted in such losses.
(e) The provisions of this Section 5 shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Holder or the Company or any other persons who are entitled to indemnification
pursuant to the provisions of this Section 5, and shall survive the sale by a
Holder of Registrable Securities pursuant to the Registration Statement.
6. Amendments. This Agreement may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions of
this Agreement may not be given, unless it would not have an adverse effect upon
the rights of any of the Holders and the Company has obtained the consent of
Holders then holding a majority of the Registrable Securities.
7. Successors and Assigns. This Agreement shall inure to the
benefit of, and be binding upon, the Company, the Holders and the other persons
and entities described in Section 4 hereof and their respective successors,
assigns and transferees, including, without limitation and without the need for
an express assignment, subsequent Holders.
8. Third-Party Beneficiaries. The Holders from time to time shall
each be a third-party beneficiary of the agreements of the Company contained
herein.
-5-
9. Headings. The headings which are contained in this Agreement
are for the sole purpose of convenience of reference, and shall not limit or
otherwise affect the interpretation of any of the provisions hereof.
10. Governing Law. This Agreement shall be governed by the laws of
the State of Florida applicable to contracts made and to be wholly performed
therein.
11. Notices. All notices and other communications hereunder shall
be in writing and shall be made by hand delivery, registered or certified mail
(postage paid, return receipt requested), telecopier or any courier providing
overnight delivery, (i) if to the Company to it at 000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: ________________; (ii) if to G-P, to it at 0000
Xxxxxxxxx Xxxx., X.X. - Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, attention: Mr.
Xxxxxx Xxxxxxx, President; and (iii) if to a Holder to the address set forth on
the books and records of the Company. All such notices and other communications
shall be deemed to have been duly given upon receipt.
12. Entire Agreement. This Agreement sets forth the entire
agreement of the Company with respect to the subject matter hereof.
13. Severability. In the event that any one or more of the
provisions of this Agreement, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions of this Agreement shall not be in any
way impaired or affected thereby.
14. Further Assurances. The Company will from time to time after
the date hereof take any and all actions, and execute, acknowledge and deliver
any and all documents and instruments, at its cost and expense, as any Holder
may from time to time reasonably request in order to more fully perfect or
protect the rights intended to be granted to it hereunder.
15. Interpretation. As used in this Agreement, unless the context
otherwise requires: words describing the singular number shall include the
plural and vice versa; words denoting any gender shall include all genders;
words denoting natural persons shall include corporations, partnerships and
other entities, and vice versa; and the words "hereof", "herein" and
"hereunder", and words of similar import, shall refer to this Agreement as a
whole, and not to any particular provision of this Agreement.
16. Waiver. The failure of the Company or any Holder to at any
time enforce any of the provisions of this Agreement shall not be deemed or
construed to be a waiver of any such provision, nor to in any way affect the
validity of this Agreement or any provision hereof or the right of the Company
or any Holder to thereafter enforce each and every provision of this Agreement.
-6-
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Agreement as of the date above written:
JAGUAR INVESTMENTS, INC.
By:
-------------------------------------
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On December , 2001, before me personally came , to me known, who, by me duly
sworn, did depose and say that deponent is the of Jaguar Investments, Inc., the
corporation described in, and which executed the foregoing Registration Rights
Agreement and that deponent signed deponent's name by like order.
-----------------------------------------
-7-
