Common use of Mandatory Registration Statement Clause in Contracts

Mandatory Registration Statement. In the event that Purchaser determines to issue shares of its Common Stock as part of the Upfront Payment, Purchaser agrees to file with the Securities and Exchange Commission as soon as reasonably practicable, but in no event later than one (1) Business Day following the Closing, an automatic shelf registration statement on Form S-3ASR with respect to at least the number of shares of Purchaser Common Stock to be issued on the Closing Date (including the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “Mandatory Registration Statement”). Notwithstanding anything herein to the contrary, Purchaser may not issue shares of Purchaser Common Stock in respect of any Milestone Payment (x) to the extent that the aggregate number of shares of Purchaser Common Stock issued hereunder would exceed the number of shares of Purchaser Common Stock covered by the Mandatory Registration Statement unless, prior to the date of such issuance, Purchaser (i) amends such Mandatory Registration Statement to include all such shares of Purchaser Common Stock or (ii) files a shelf registration on Form S-3 (or such other form under the Securities Act then available to Purchaser providing for the resale pursuant to Rule 415 from time to time by the holders of any and all registrable shares), which amendment or registration statement has either been declared effective by the SEC prior the date of such issuance or become effective automatically as a result of Purchaser’s status as a WKSI or (y) unless such shares have been approved for listed on the Qualified Stock Exchange, subject only to official notice of issuance.

Mandatory Registration Statement. (i) Promptly following the Closing but no later than the earlier of (A) one hundred twenty (120) days after the Closing Date or (B) the date on which the Company files any other registration statement (but excluding in all cases any registrations to be effected on Forms S-4 or S-8 or other applicable successor Forms)(the “Filing Deadline”), the Company shall prepare and file with the SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Securities) covering the resale of the Registrable Securities. Such Registration Statement shall include the plan of distribution attached hereto as Exhibit A, subject to any SEC comments thereon. Such Registration Statement also shall cover, to the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number of additional shares of Common Stock resulting from stock splits, stock dividends or similar transactions with respect to the Registrable Securities. The Registration Statement (and each amendment or supplement thereto, and each request for acceleration of effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investor and its counsel prior to its filing or other submission. If a Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline, the Company will make payments to the Investor, as liquidated damages and not as a penalty, in an amount equal to 1.0% of additional interest otherwise payable on the aggregate principal amount of the Note for each 30-day period or pro rata for any portion thereof following the Filing Deadline for which no Registration Statement is filed with respect to the Registrable Securities. Such payments shall constitute the Investor’s exclusive monetary remedy for such events, but shall not affect the right of the Investor to seek injunctive relief. Such payments shall be made to the Investor in cash. (ii) Notwithstanding any other provisions of this Section 2(a), if at any time the SEC takes the position that the offering of the Registrable Securities as contemplated by the Registration Statement violates the provisions of Rule 415 under the 1933 Act because of the number of shares included in such Registration Statement, the Company shall (i) remove from the Registration Statement such portion of the Registrable Securities and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may require to assure the Company’s compliance with the requirements of Rule 415. Any cut-back imposed pursuant to this Section 2(a)(ii) shall be allocated pro rata among the Registrable Securities and any other securities of the Company being registered pursuant to such Registration Statement. The provisions of this Section 2(a)(ii) shall not limit or otherwise affect the obligations of the Company, which are absolute and unconditional, to effect the registration of the Registrable Securities as provided in this Agreement. In the event of any cut-back imposed pursuant to this Section 2(a)(ii), the Company shall use commercially reasonable efforts to effect the registration of any Registrable Securities excluded from a Registration Statement as promptly as practicable. (iii) In the event that Purchaser determines to issue shares of its Common Stock as part of the Upfront Payment, Purchaser agrees to file with the Securities and Exchange Commission as soon as reasonably practicable, but in no event later than one (1) Business Day following the Closing, an automatic shelf registration statement on Form S-3ASR with respect to at least the number of shares of Purchaser Common Stock to be issued on the Closing Date (including the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the “Mandatory Registration Statement”). Notwithstanding anything herein to the contrary, Purchaser may not issue shares of Purchaser Common Stock in respect of any Milestone Payment (x) to the extent that the aggregate number of shares of Purchaser Common Stock issued hereunder would exceed the number of shares of Purchaser Common Stock covered by the Mandatory Registration Statement unless, prior to the date of such issuance, Purchaser (i) amends such Mandatory Registration Statement to include all such shares of Purchaser Common Stock or (ii) files a shelf registration on Form S-3 (or such other form under the Securities Act then available to Purchaser providing for the resale pursuant to Rule 415 from time to time by the holders of any and all registrable shares), which amendment or registration statement has either been declared effective by the SEC prior the date of such issuance or become effective automatically Registrable Shares increases as a result of Purchaser’s status any anti-dilution or other adjustment contained in the Note or the Warrant and such Registrable Shares were not permitted under the 1933 Act to be included in the Registration Statement the Company shall use commercially reasonable efforts to effect the registration of such additional Registrable Securities as a WKSI or (y) unless such shares have been approved for listed on the Qualified Stock Exchange, subject only to official notice of issuancepromptly as practicable.

Mandatory Registration Statement. In (a) As promptly as possible after the Closing Date, and in any event that Purchaser determines on or prior to issue shares of its Common Stock as part of May 12, 2005 (the Upfront Payment"MANDATORY FILING DATE"), Purchaser agrees to the Company shall prepare and file with the SEC a Registration Statement on Form S-1 or, if eligible, on Form S-3 for the purpose of registering under the Securities Act all of the Registrable Shares for resale by, and Exchange Commission for the account of, each Investor as an initial selling stockholder thereunder (the "MANDATORY REGISTRATION STATEMENT"), which the Investors acknowledge may also register 300,000 shares (including any shares of capital stock that may be issued in respect thereof pursuant to a stock split, stock dividend, recombination, reclassification or the like) of Common Stock to be issued to DirecTV Group pursuant to the Company's agreement to acquire a 50% interest in Hughes Network Systems, LLC. The Mandatory Registration Statemexx xxxll conform in form and substance to all applicable instructions for the relevant registration form and with all applicable SEC regulations. The Mandatory Registration Statement shall permit the Investors to offer and sell, on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, any or all of their Registrable Shares. The Company agrees to use its best efforts to cause the Mandatory Registration Statement to be declared effective as soon as reasonably practicablepracticable after the date of such filing but in any event on or prior to June 30, 2005 (the "MANDATORY EFFECTIVE DATE") (including filing with the SEC, within three (3) Business Days of the date that the Company is notified (orally or in writing, whichever is earlier) by the SEC that the Mandatory Registration Statement will not be "reviewed" or will not be subject to further review, a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act (an "ACCELERATION REQUEST"), which request shall request an effective date that is within three (3) Business Days of the date of such request). The Company shall notify each Investor in writing promptly (and in any event within one (1) Business Day) after the Company's submission of an Acceleration Request to the SEC. The Company shall be required to keep the Mandatory Registration Statement continuously effective (including through the filing of any required post-effective amendments) until the earliest to occur of (i) the date after which all of the Registrable Shares registered thereunder shall have been sold, (ii) the third (3rd) anniversary of the Closing Date and (iii) the date on which each Investor may sell all Registrable Shares then held by such Investor without restriction under Rule 144(k) of the Securities Act; provided, that in any case such date shall be extended by the amount of time of any Suspension Period (as defined below) (the "EFFECTIVENESS PERIOD"). Thereafter, the Company shall be entitled to withdraw the Mandatory Registration Statement and, upon such withdrawal, the Investors shall have no further right to offer or sell any of the Registrable Shares pursuant to the Mandatory Registration Statement (or any prospectus relating thereto). (b) Notwithstanding anything in this Section 2 to the contrary, if the Company shall during the Effectiveness Period furnish to the Investors a certificate signed by the President or Chief Executive Officer of the Company stating that the Board has made the good faith determination upon the advice of counsel (x) (i) that the continued use by the Investors of the Mandatory Registration Statement for purposes of effecting offers or sales of Registrable Shares pursuant hereto would require, under the Securities Act, premature disclosure in the Mandatory Registration Statement (or the Prospectus relating thereto) of material, nonpublic information concerning the Company, its business or prospects or any proposed material transaction involving the Company and (ii) that such premature disclosure would be materially adverse to the Company, its business or prospects or any such proposed material transaction, (y) that the Company is required to prepare audited financial statements as of a date other than its fiscal year end or is otherwise unable to comply with applicable SEC disclosure requirements as a result of an extraordinary corporate transaction (such as a requirement to provide pro forma financials giving effect to such transaction or historical financials of another constituent entity in such transaction), or (z) if the Registration Statement has been filed on Form S-1 and the same must be amended or supplemented in order to comply with Section 10(a)(3) of the Securities Act, then the right of the Investors to use the Mandatory Registration Statement (and the Prospectus relating thereto) for purposes of effecting offers or sales of Registrable Shares pursuant thereto or the filing of the Mandatory Registration Statement shall be suspended for a period (the "SUSPENSION PERIOD") not greater than thirty (30) consecutive Business Days and not more than sixty (60) Business Days during any consecutive twelve (12) month period. During the Suspension Period, the Investors shall not offer or sell any Registrable Shares pursuant to or in reliance upon the Mandatory Registration Statement (or the Prospectus relating thereto). The Company agrees that, as promptly as possible, but in no event later than one (1) Business Day following after the Closingconsummation, an automatic shelf registration statement on Form S-3ASR abandonment, public disclosure or other appropriate resolution of the event or transaction that caused the Company to suspend the use of or delay the filing of the Mandatory Registration Statement (and the Prospectus relating thereto) pursuant to this Section 2(b), the Company will as promptly as possible lift any suspension, provide the Investors with respect to at least the number of shares of Purchaser Common Stock to be issued on the Closing Date (including the prospectus, amendments and supplements to such registration statement or prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by referencerevised Prospectuses, if anyrequired, and will notify the Investors of their ability to effect offers or sales of Registrable Shares pursuant to or in such registration statement, reliance upon the “Mandatory Registration Statement”). . (c) It shall be a condition precedent to the obligations of the Company to register Registrable Shares for the account of an Investor pursuant to this Section 2 or Section 2A that such Investor furnish to the Company such information regarding itself, the Registrable Shares held by it, and the method of disposition of such securities as shall be reasonably required to effect the registration of such Investor's Registrable Shares. (d) Notwithstanding anything herein in this Agreement to the contrary, Purchaser may not issue shares the Investors' sole remedy for the failure of Purchaser Common Stock in respect of any Milestone Payment (x) the Company to the extent that the aggregate number of shares of Purchaser Common Stock issued hereunder would exceed the number of shares of Purchaser Common Stock covered by file the Mandatory Registration Statement unlessas promptly as possible after the date hereof, and in any event on or prior to the date Mandatory Filing Date, for the failure of such issuancethe Company to make effective the Mandatory Registration Statement on or prior to the Mandatory Effective Date or for the failure to maintain the effectiveness of the Mandatory Registration Statement during the Effectiveness Period (other than during any Suspension Period), Purchaser (i) amends after such Mandatory Registration Statement to include all such shares initially becomes effective shall be the vesting of Purchaser Common Stock or (ii) files a shelf registration on Form S-3 (or such other form under the Securities Act then available to Purchaser providing Warrants as provided for the resale pursuant to Rule 415 from time to time by the holders of any and all registrable shares), which amendment or registration statement has either been declared effective by the SEC prior the date of such issuance or become effective automatically as a result of Purchaser’s status as a WKSI or (y) unless such shares have been approved for listed on the Qualified Stock Exchange, subject only to official notice of issuancetherein.