EXHIBIT C MICROWAVE SATELLITE TECHNOLOGIES, INC. REGISTRATION RIGHTS AGREEMENT
EXHIBIT
C
MICROWAVE
SATELLITE TECHNOLOGIES, INC.
_______
__, 2007
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1.
Registration Rights
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C-2
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1.1
Definitions
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C-2
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1.2
Company Registration
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C-3
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1.3
Obligations of the Company
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C-4
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1.4
Furnish Information
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C-5
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1.5
Delay of Registration
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C-5
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1.6
Indemnification
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C-6
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1.7
Reports Under Securities Exchange Act
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C-7
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1.8
Transfer or Assignment of Registration Rights
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C-8
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1.9
“Market Stand-Off” Agreement
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C-8
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2.
Covenants of the Company to the Investors
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C-9
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2.1
Information Rights
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C-9
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2.2
Confidentiality
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C-9
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3.
Legend
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C-9
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4.
Miscellaneous
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C-10
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4.1
Governing Law
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C-10
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4.2
Waivers and Amendments
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C-10
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4.3
Successors and Assigns
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C-11
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4.4
Entire Agreement
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C-11
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4.5
Notices
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C-11
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4.6
Interpretation
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C-11
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4.7
Severability
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C-11
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4.8
Counterparts
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C-11
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4.9
Telecopy Execution and Delivery
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C-12
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THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made as of _______ __, 2007, among Microwave Satellite Technologies, Inc.,
a
Delaware corporation (the “Company”),
and
the individuals and entities listed on Schedule
A
hereto
(each, an “Investor”
and
collectively, the “Investors”).
RECITALS
WHEREAS,
the Company and the Investors are parties to Subscription Agreements (the
“Subscription
Agreements”)
pursuant to a Private Placement Memorandum dated March 28, 2007 (the
“PPM”);
WHEREAS,
the Investors’ obligations under the Subscription Agreements are conditioned
upon certain registration rights under the Securities Act of 1933, as amended
(the “Securities
Act”),
as
described in the Subscription Agreements; and
WHEREAS,
the Investors and the Company desire to provide for the rights of registration
under the Securities Act as are provided herein upon the execution and delivery
of this Agreement by such Investors and the Company.
NOW,
THEREFORE, in consideration of the promises, covenants and conditions set forth
herein, the parties hereto hereby agree as follows:
1. Registration
Rights.
1.1 Definitions.
As used
in this Agreement, the following terms shall have the meanings set forth
below:
(a) “Commission”
means
the United States Securities and Exchange Commission.
(b) “Common
Stock”
means
the Company’s common stock, par value $0.001 per share.
(c) “Effectiveness
Date”
means
the 90th
day
following the initial filing date of the registration statement
hereunder.
(d) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
(e) “Fair
Market Value”
means
the average of the high and low prices of publicly traded shares of Common
Stock, rounded to the nearest cent, on the principal national securities
exchange on which shares of Common Stock are listed (if the shares of Common
Stock are so listed), or on The NASDAQ Capital Market (if the shares of Common
Stock are regularly quoted on the Nasdaq Stock Market), or, if not so listed
or
regularly quoted, the mean between the closing bid and asked prices of publicly
traded shares of Common Stock in the over-the-counter market, or, if such bid
and asked prices shall not be available, as reported by any nationally
recognized quotation service selected by the Company, or as determined by the
Board of Directors of the Company in a manner consistent with the provisions
of
the Internal Revenue Code, as amended.
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(f) “Filing
Date”
means,
with respect to the registration statement required to be filed hereunder,
a
date no later than 90th
days
following the final Closing Date as defined in the PPM.
(g) “Investor”
means
any person owning Registrable Securities.
(h) The
terms
“register,”
“registered”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
or
similar document in compliance with the Securities Act, and the declaration
or
ordering of effectiveness of such registration statement or
document.
(i) “Registrable
Securities”
means
any of the Shares or any securities issued or issuable as (or any securities
issued or issuable upon the conversion or exercise of any warrant, right or
other security that is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, the Shares; provided,
however,
that
Registrable Securities shall not include any securities of the Company that
have
previously been registered or which have been sold to the public either pursuant
to a registration statement or Rule 144, or which have been sold in a private
transaction in which the transferor’s rights under this Section 1 are not
assigned, or which may be sold immediately without registration under the
Securities Act and without volume restrictions pursuant to Rule
144(k).
(j) “Rule
144”
means
Rule 144 as promulgated by the Commission under the Securities Act, as such
Rule
may be amended from time to time, or any similar successor rule that may be
promulgated by the Commission.
(k) “Shares”
means
the shares of the Common Stock issued pursuant to the Subscription Agreements
and issuable upon exercise of the Warrants.
(l) “Warrants”
means
the warrants to purchase Common Stock issued pursuant to the Subscription
Agreements.
1.2 Company
Registration.
(a) On
or
prior to the Filing Date the Company shall prepare and file with the Commission
a registration statement covering the Registrable Securities for an offering
to
be made on a continuous basis pursuant to Rule 415. The registration statement
shall be on Form SB-2 or Form S-3 (except if the Company is not then eligible
to
register for resale the Registrable Securities on Form SB-2 or Form S-3, in
which case such registration shall be on another appropriate form in accordance
herewith). The Company shall cause the registration statement to become
effective and remain effective as provided herein. The Company shall use its
best efforts to cause the registration statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in
any
event no later than the Effectiveness Date. The Company shall use its best
efforts to keep the registration statement continuously effective under the
Securities Act until the date which is the earliest to occur of: (i) the date
that is 18 months after the date hereof or (ii) the date of which all
Registrable Securities have been sold (the “Effectiveness
Period”).
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(b) If:
(i)
the registration statement is not filed on or prior to the Filing Date; or
(ii)
the Company fails to use its best efforts to cause the registration statement
to
be declared effective by the Effectiveness Date (any such failure or breach
being referred to as an “Event,”
and
the date on which such Event occurs being referred to as the “Event
Date”),
then,
until the applicable Event is cured, the Company shall pay to each Investor,
in
cash or in Common Stock at Fair Market Value at the Company’s option, as
liquidated damages and not as a penalty, an amount equal to 1.0% of the
aggregate purchase price paid by such Investor pursuant to the Subscription
Agreement executed by such Investor for each thirty (30) day period (prorated
for partial periods), up to a maximum of 6.0%, during which such Event continues
uncured. While such Event continues, such liquidated damages shall be paid
not
less often than every thirty (30) days. Any unpaid liquidated damages as of
the
date when an Event has been cured by the Company shall be paid within three
(3)
business days following the date on which such Event has been cured by the
Company. Notwithstanding anything herein to the contrary, to the extent that
the
registration of any or all of the Registrable Securities by the Company on
a
registration statement is prohibited (the “Non-Registered
Shares”)
as a
result of rules, regulations, positions or releases issued or actions taken
by
the SEC pursuant to its authority with respect to Rule 415 and the Company
has
registered at such time the maximum number of Registrable Securities permissible
upon consultation with the SEC, then the liquidated damages described in this
Section 1.2(b) shall not be applicable to such Non-Registered
Shares.
(c) The
Company shall bear and pay all expenses incurred in connection with any
registration, filing or qualification of Registrable Securities with respect
to
the registrations pursuant to this Section 1.2 for each Investor, including
(without limitation) all registration, filing and qualification fees, printer’s
fees, accounting fees and fees and disbursements of counsel for the Company,
but
excluding underwriting discounts and commissions relating to Registrable
Securities and fees and disbursements of counsel for the Investors.
1.3 Obligations
of the Company.
Whenever required under this Section 1 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective and, upon the request of the
Investors of at least a majority of the Registrable Securities registered
thereunder, keep such registration statement effective during the Effectiveness
Period;
(b) Prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the
Securities Act with respect to the disposition of all securities covered by
such
registration statement;
(c) Furnish
to the Investors such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them (provided that the Company
would not be required to print such prospectuses if readily available to
Investors from any electronic service, such as on the XXXXX filing database
maintained at xxx.xxx.xxx);
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(d) Use
its
reasonable best efforts to register and qualify the securities covered by such
registration statement under such other securities’ or blue sky laws of such
jurisdictions as shall be reasonably requested by the Investors; provided that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
(e) In
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering (each Investor participating in
such underwriting shall also enter into and perform its obligations under such
an agreement);
(f) Notify
each Investor of Registrable Securities covered by such registration statement,
at any time when a prospectus relating thereto is required to be delivered
under
the Securities Act, of the happening of any event as a result of which the
prospectus included in such 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 not
misleading in the light of the circumstances then existing;
(g) Cause
all
such Registrable Securities registered pursuant hereto to be listed on each
securities exchange or nationally recognized quotation system on which similar
securities issued by the Company are then listed; and
(h) Provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration.
1.4 Furnish
Information.
It
shall be a condition precedent to the Company’s obligations to take any action
pursuant to this Section 1 with respect to the Registrable Securities of any
selling Investor that such Investor shall furnish to the Company such
information regarding such Investor, the Registrable Securities held by such
Investor, and the intended method of disposition of such securities as shall
be
required by the Company or the managing underwriters, if any, to effect the
registration of such Investor’s Registrable Securities.
1.5 Delay
of Registration.
No
Investor shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy that
might arise with respect to the interpretation or implementation of this Section
1.
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1.6 Indemnification.
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Investor, any underwriter (as defined in the Securities Act) for such Investor
and each person, if any, who controls such Investor or underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a “Violation”):
(i)
any untrue statement or alleged untrue statement of a material fact contained
in
a registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto
(collectively, the “Filings”),
(ii)
the omission or alleged omission to state in the Filings a material fact
required to be stated therein, or necessary to make the statements therein
not
misleading, or (iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law; and the Company will pay any legal or other expenses reasonably
incurred by any person to be indemnified pursuant to this Section 1.6(a) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that
the indemnity agreement contained in this Section 1.6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any
such
case for any such loss, claim, damage, liability or action to the extent that
it
arises out of or is based upon a Violation that occurs in reliance upon and
in
conformity with written information furnished expressly for use in connection
with such registration by any such Investor, underwriter or controlling
person.
(b) To
the
extent permitted by law, each Investor will indemnify and hold harmless the
Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within
the
meaning of the Securities Act or the Exchange Act, any underwriter, any other
Investor selling securities in such registration statement and any controlling
person of any such underwriter or other Investor, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing persons
may become subject under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation,
in
each case to the extent (and only to the extent) that such Violation occurs
in
reliance upon and in conformity with written information furnished by such
Investor expressly for use in connection with such registration; and each such
Investor will pay any legal or other expenses reasonably incurred by any person
to be indemnified pursuant to this Section 1.6(b) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that
the indemnity agreement contained in this Section 1.6(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Investor (which
consent shall not be unreasonably withheld); provided,
however,
in no
event shall any indemnity under this subsection 1.6(b) exceed the gross proceeds
from the offering received by such Investor.
(c) Promptly
after receipt by an indemnified party under this Section 1.6 of notice of the
commencement of any action (including any governmental action), such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this Section 1.6, deliver to the indemnifying party a written notice
of the commencement thereof and the indemnifying party shall have the right
to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided,
however,
that an
indemnified party (together with all other indemnified parties that may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement
of
any such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.6, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any
indemnified party otherwise than under this Section 1.6.
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(d) If
the
indemnification provided for in Sections 1.6(a) and (b) is held by a court
of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any loss, claim, damage or expense referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or expense in such proportion as is appropriate
to
reflect the relative fault of the indemnifying party on the one hand and of
the
indemnified party on the other in connection with the statements or omissions
or
alleged statements or omissions that resulted in such loss, liability, claim
or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by the indemnifying
party or by the indemnified party and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. In no event shall any Investor be required to contribute an amount
in
excess of the gross proceeds from the offering received by such
Investor.
(e) The
obligations of the Company and Investors under this Section 1.6 shall survive
the completion of any offering of Registrable Securities in a registration
statement under this Section 1, and otherwise.
1.7 Reports
Under Securities Exchange Act.
With a
view to making available the benefits of certain rules and regulations of the
Commission, including Rule 144, that may at any time permit an Investor to
sell
securities of the Company to the public without registration or pursuant to
a
registration on Form SB-2, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144, at all times after ninety (90) days after the effective date of the
registration statement;
(b) take
such
action, including the voluntary registration of its Common Stock under Section
12 of the Exchange Act, as is necessary to enable the Investors to utilize
Form
SB-2 for the sale of their Registrable Securities, such action to be taken
as
soon as practicable after the end of the fiscal year in which the registration
statement is declared effective;
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(c) file
with
the Commission in a timely manner all reports and other documents required
of
the Company under the Securities Act and the Exchange Act; and
(d) furnish
to any Investor, so long as the Investor owns any Registrable Securities,
forthwith upon request (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144 (at any time after ninety
(90) calendar days after the effective date of the registration statement),
the
Securities Act and the Exchange Act (at any time after it has become subject
to
such reporting requirements), or that it qualifies as a registrant whose
securities may be resold pursuant to Form SB-2 (at any time after it so
qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any Investor
of any rule or regulation of the Commission that permits the selling of any
such
securities without registration or pursuant to such form.
1.8 Transfer
or Assignment of Registration Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Section 1 may be transferred or assigned, but only with all related obligations,
by an Investor to a transferee or assignee who (a) acquires both at least 50,000
Shares and Warrants to acquire at least 25,000 Shares (all subject to
appropriate adjustment for stock splits, stock dividends and combinations)
from
such transferring Investor or (b) holds Registrable Securities immediately
prior
to such transfer or assignment; provided,
that in
the case of (a), (i) prior to such transfer or assignment, the Company is
furnished with written notice stating the name and address of such transferee
or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, (ii) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of
this
Agreement including, without limitation, the provisions of Section 1.9 hereof
and (iii) such transfer or assignment shall be effective only if immediately
following such transfer or assignment the further disposition of such securities
by the transferee or assignee is restricted under the Securities
Act.
1.9 “Market
Stand-Off” Agreement.
Each
Investor hereby agrees that it will not, without the prior written consent
of
the Company and the managing underwriter (if a managing or lead underwriter
is
appointed), during the period commencing on the date of the final prospectus
relating to the initial underwritten public offering of the Company and ending
on the date specified by the Company and the managing underwriter (such period
not to exceed one hundred eighty (180) calendar days) (i) lend, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
or
otherwise transfer or dispose of, directly or indirectly, any securities of
the
Company, including (without limitation) shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether now
owned or hereafter acquired) or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of any securities of the Company, including (without limitation)
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether now owned or hereafter acquired), whether
any such transaction described in clause (i) or (ii) above is to be settled
by
delivery of securities, in cash or otherwise. The foregoing covenants shall
not
apply to the sale of any shares by an Investor to an underwriter pursuant to
an
underwriting agreement and shall only be applicable to the Investors if all
the
Company’s executive officers, directors and greater than five percent (5%)
stockholders enter into similar agreements. Each Investor agrees to execute
an
agreement(s) reflecting (i) and (ii) above as may be requested by the managing
or lead underwriters at the time of the underwritten public offering, and
further agrees that the Company may impose stop transfer instructions with
its
transfer agent in order to enforce the covenants in (i) and (ii) above. The
underwriters in connection with the Company’s initial underwritten public
offering are intended third party beneficiaries of the covenants in this Section
1.9 and shall have the right, power and authority to enforce such covenants
as
though they were a party hereto.
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2. Covenants
of the Company to the Investors.
2.1 Information
Rights.
The
Company shall deliver to each Investor who holds (and continues to hold) at
least 250,000 Shares (subject to appropriate adjustment for stock splits, stock
dividends and combinations), upon the request of such Investor (which may be
satisfied by filing of Company quarterly and annual reports under the Exchange
Act):
(a) as
soon
as practicable, but in any event within one hundred twenty (120) calendar days
after the end of each fiscal year of the Company, consolidated balance sheets
of
the Company and its subsidiaries, if any, as of the end of such fiscal year,
and
consolidated statements of income and consolidated statements of cash flows
of
the Company and its subsidiaries, if any, for such year, prepared in accordance
with generally accepted accounting principles (“GAAP”),
all
in reasonable detail; and
(b) as
soon
as practicable, but in any event within forty-five (45) calendar days after
the
end of each of the first three (3) quarters of each fiscal year of the Company,
consolidated balance sheets of the Company and its subsidiaries, if any, as
of
the end of such quarter, and consolidated statements of income and consolidated
statements of cash flows of the Company and its subsidiaries, if any, for such
quarter prepared in accordance with GAAP, all in reasonable detail.
2.2 Confidentiality.
Each
Investor receiving any non-public information of the Company hereby agrees
to
hold in confidence and trust and to act in a fiduciary manner with respect
to
all information so provided; provided,
however,
that
notwithstanding the foregoing, an Investor may include summary financial
information concerning the Company and general statements concerning the nature
and progress of the Company’s business in an Investor’s reports to its
affiliates.
3. Legend.
(a) Each
certificate representing Shares of Common Stock held by the Investors shall
be
endorsed with the following legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT, (B) AN OPINION OF COUNSEL, REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR
(C) REASONABLE ASSURANCE HAVING BEEN PROVIDED TO THE COMPANY THAT SUCH OFFER,
SALE, ASSIGNMENT OR TRANSFER IS BEING MADE PURSUANT TO RULE 144 OR RULE 144A
UNDER SAID ACT.
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(b) The
legend set forth above shall be removed, and the Company shall issue a
certificate without such legend to the transferee of the Shares represented
thereby, if, unless otherwise required by state securities laws, (i) such Shares
have been sold under an effective registration statement under the Securities
Act, (ii) in connection with a sale, assignment or other transfer, such holder
provides the Company with an opinion of counsel, reasonably acceptable to the
Company, to the effect that such sale, assignment or transfer is being made
pursuant to an exemption from the registration requirements of the Securities
Act, or (iii) such holder provides the Company with reasonable assurance that
the Shares are being sold, assigned or transferred pursuant to Rule 144 or
Rule
144A under the Securities Act.
4. Miscellaneous.
4.1 Governing
Law.
The
parties hereby agree that any dispute which may arise between them arising
out
of or in connection with this Agreement shall be adjudicated only before a
Federal court located in the State of Delaware and they hereby submit to the
exclusive jurisdiction of the federal and state courts of the State of Delaware
with respect to any action or legal proceeding commenced by any party, and
irrevocably waive any objection they now or hereafter may have respecting the
venue of any such action or proceeding brought in such a court or respecting
the
fact that such court is an inconvenient forum, relating to or arising out of
this Agreement or any acts or omissions relating to the registration of the
securities hereunder, and consent to the service of process in any such action
or legal proceeding by means of registered or certified mail, return receipt
requested, in care of the address set forth below or such other address as
the
undersigned shall furnish in writing to the other. The parties further agree
that in the event of any dispute, action, suit or other proceeding arising
out
of or in connection with this Agreement brought by a Subscriber (or transferee),
the Company (and each other defendant) shall recover all of such party’s
attorneys’ fees and costs incurred in each and every action, suit or other
proceeding, including any and all appeals or petitions therefrom. As used
herein, attorney’s fees shall be deemed to mean the full and actual costs of any
investigation and of legal services actually performed in connection with the
matters involved, calculated on the basis of the usual fee charged by the
attorneys performing such services.
4.2 Waivers
and Amendments.
This
Agreement may be terminated and any term of this Agreement may be amended or
waived (either generally or in a particular instance and either retroactively
or
prospectively) with the written consent of the Company and Investors holding
at
least a majority of the Registrable Securities then outstanding (the
“Majority
Investors”).
Notwithstanding the foregoing, additional parties may be added as Investors
under this Agreement with the written consent of the Company and the Majority
Investors. No such amendment or waiver shall reduce the aforesaid percentage
of
the Registrable Securities, the holders of which are required to consent to
any
termination, amendment or waiver without the consent of the record holders
of
all of the Registrable Securities. Any termination, amendment or waiver effected
in accordance with this Section 4.2 shall be binding upon each holder of
Registrable Securities then outstanding, each future holder of all such
Registrable Securities and the Company.
C-10
4.3 Successors
and Assigns.
Except
as otherwise expressly provided herein, the provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto.
4.4 Entire
Agreement.
This
Agreement constitutes the full and entire understanding and agreement among
the
parties with regard to the subject matter hereof, and no party shall be liable
or bound to any other party in any manner by any warranties, representations
or
covenants except as specifically set forth herein.
4.5 Notices.
All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be delivered personally by hand or by overnight
courier, mailed by United States first-class mail, postage prepaid, sent by
facsimile or sent by electronic mail directed (a) if to an Investor, at such
Investor’s address, facsimile number or electronic mail address set forth in the
Company’s records, or at such other address, facsimile number or electronic mail
address as such Investor may designate by ten (10) days’ advance written notice
to the other parties hereto or (b) if to the Company, to its address, facsimile
number or electronic mail address set forth on its signature page to this
Agreement and directed to the attention of the Chief Executive Officer, or
at
such other address, facsimile number or electronic mail address as the Company
may designate by ten (10) days’ advance written notice to the other parties
hereto. All such notices and other communications shall be effective or deemed
given upon delivery, on the date of mailing, upon confirmation of facsimile
transfer or upon confirmation of electronic mail delivery.
4.6 Interpretation.
The
words “include,” “includes” and “including” when used herein shall be deemed in
each case to be followed by the words “without limitation.” The titles and
subtitles used in this Agreement are used for convenience only and are not
considered in construing or interpreting this Agreement.
4.7 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision shall be excluded from this Agreement, and the
balance of the Agreement shall be interpreted as if such provision were so
excluded, and shall be enforceable in accordance with its terms.
4.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which together shall constitute one
instrument.
C-11
4.9 Telecopy
Execution and Delivery.
A
facsimile, telecopy or other reproduction of this Agreement may be executed
by
one or more parties hereto, and an executed copy of this Agreement may be
delivered by one or more parties hereto by facsimile or similar electronic
transmission device pursuant to which the signature of or on behalf of such
party can be seen, and such execution and delivery shall be considered valid,
binding and effective for all purposes. At the request of any party hereto,
all
parties hereto agree to execute an original of this Agreement as well as any
facsimile, telecopy or other reproduction hereof.
[SIGNATURE
PAGE FOLLOWS]
C-12
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month
and
year first set forth above.
“Company”
MICROWAVE
SATELLITE
TECHNOLOGIES,
INC.
By:
Name:
Title:
Address:
Microwave
Satellite Technologies, Inc.
000-000
Xxxxxx Xxxx
Xxxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
E-mail:
xxxx@xxx-xxxxxx.xxx
Attention:
Chief Executive Officer
[COMPANY
SIGNATURE PAGE TO REGISTATION RIGHTS AGREEMENT]
IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month
and
year first set forth above.
“Investor”
______________________________________
By:
Name:
Title:
Address:
____________________________________
____________________________________
____________________________________
Telephone:___________________________
Facsimile:____________________________
Email:_______________________________
[INVESTOR
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
Schedule
A
Investors
