REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of June 30, 2005, by and among Mobilepro Corp., a
Delaware corporation (the “Company”),
and
The Bethell Family Trust, under Trust Agreement dated June 1, 1993 (the
“Stockholder”).
A. Pursuant
to that certain Agreement and Plan of Merger dated of even date herewith, by
and
among the Company, AFN Acquisition Corp., a Nevada corporation, American Fiber
Network, Inc., a Nevada corporation and the Stockholder identified therein
(the
“Merger
Agreement”),
the
Stockholder has been issued, as part of the Merger Consideration (as those
terms
are defined in the Merger Agreement), shares of the Company’s Common Stock,
$0.001 par value per share (the “Common
Stock”).
B. Pursuant
to the Merger Agreement, the Company is required to provide the Stockholder
certain registration rights with respect to the Common Stock.
1. REGISTRATION
RIGHTS.
1.1 Definitions.
For
purposes of this Section 1:
(a) Common
Stock.
The
term “Common
Stock”
has the
meaning set forth in the recitals.
(b) Registration.
The
terms “register,”“registration”
and
“registered”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(c) Registrable
Securities.
The
term “Registrable
Securities”
means
the
Common Stock issued pursuant to the Merger Agreement.
(d) Registrable
Securities Then Outstanding.
The
number of shares of “Registrable
Securities then outstanding”
shall
mean the number of shares of Common Stock which are Registrable Securities
that
are then (1) issued and outstanding or (2) issuable pursuant
to the
exercise or conversion of then outstanding and then exercisable and qualifying
options, warrants or convertible securities.
(e) Holder.
The
term “Holder”
means
any person owning of record Registrable Securities or any assignee of record
of
such Registrable Securities to whom rights set forth herein have been duly
assigned in accordance with this Agreement; provided,
however,
that
the Company shall in no event be obligated to register shares of Common Stock
except as set forth herein.
(f) SEC.
The
term “SEC”
or
“Commission”
means
the U.S. Securities and Exchange Commission.
1.2 Piggyback
Registrations.
The
Company shall notify all Holders of Registrable Securities in writing at least
thirty (30) days prior to filing any registration statement under the Securities
Act for purposes of effecting a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary
offerings of securities of the Company, but excluding
registration statements relating to any employee benefit plan or a corporate
reorganization or other transaction covered by Rule 145 promulgated under the
Securities Act, or a registration on any registration form which does not permit
secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of
Registrable Securities) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any
such
registration statement all or any part of the Registrable Securities held by
such Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue to
have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
1.3 Obligations
of the Company.
Whenever required to effect the registration of any Registrable Securities
under
this Agreement, the Company shall, subject to the provisions of Section
1.3(g)
below,
as expeditiously as reasonably possible:
(a) Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use reasonable efforts to cause such registration statement
to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for up to ninety (90) days during which the Company has not exercised
its right to suspend the registration statement pursuant to Section 1.3(g)
below.
(b) Prepare
and file with the SEC 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 Holders such number 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 the Registrable Securities owned by them that are included in
such registration.
(d) Use
reasonable 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 Holders, 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 Holder participating in
such
underwriting hereby agrees to also enter into and perform its obligations under
such an agreement.
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(f) Notify
each Holder 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) Notwithstanding
any other provision of this Agreement, from and after the time a registration
statement filed under this Section 2 covering Registrable Securities is declared
effective, the Company shall have the right to suspend the registration
statement and the related prospectus in order to prevent premature disclosure
of
any material non-public information related to corporate developments by
delivering notice of such suspension to the Holders, provided,
however,
that the
Company may exercise the right to such suspension only once in any 12-month
period and for a period not to exceed 90 days. From and after the date of a
notice of suspension under this Section 1.3(g),
each
Holder agrees not to use the registration statement or the related prospectus
for resale of any Registrable Security until the earlier of (1) notice from
the
Company that such suspension has been lifted or (2) the 90th
day
following the giving of the notice of suspension.
1.4 Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to Section 1.2
that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method
of
disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
1.5 Delay
of Registration.
No
Holder 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.
1.6 Indemnification.
In the
event any Registrable Securities are included in a registration statement under
Section 1.2:
(a) By
the
Company.
To the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, the partners, officers and directors of each Holder, any underwriter
(as
defined in the Securities Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act
or
the Securities Exchange Act of 1934, as amended, (the “Exchange
Act”),
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state 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, the “Violations”
and,
individually, a “Violation”):
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(1) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto;
or
(2) 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;
or
(3) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such registration
statement.
The
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, within three months after a request for reimbursement has
been
received by the Company, 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
which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder, partner,
officer, director, underwriter or controlling person of such
Holder.
(b) By
Selling Holders.
To the
extent permitted by law, each selling Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls the Company within
the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder’s
partners, directors or officers or any person who controls such Holder within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities (joint or several) to which the Company or any
such director, officer, controlling person, underwriter or other such Holder,
partner or director, officer or controlling person of such other Holder may
become subject under the Securities Act, the Exchange Act or other federal
or
state 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 Holder expressly
for use in connection with such registration. Each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection
with
investigating or defending any such loss, claim, damage, liability or action;
within three months after a request for reimbursement has been received by
the
indemnifying Holder, 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
Holder, which consent shall not be unreasonably withheld; and provided further,
that
the total amounts payable in indemnity by a Holder under this
Section 1.6(b)
in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation
arises.
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(c) Notice.
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. 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 shall have the right to retain its own 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 conflict of 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 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
failure 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.
(d) Defect
Eliminated in Final Prospectus.
The
foregoing indemnity agreements of the Company and Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with
the
SEC at the time the registration statement in question becomes effective or
the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
“Final
Prospectus”),
such
indemnity agreement shall not inure to the benefit of any person if a copy
of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action is required by the Securities Act.
(e) Contribution.
If the
indemnification provided for in this Section 1.6
is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying the indemnified
party, shall contribute to the amount paid or payable by such indemnified party
with respect to such loss, liability, claim, damage or expense in the proportion
that is appropriate to reflect the relative fault of the indemnifying party
and
the indemnified party in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as any
other
relevant equitable considerations. The relative fault of the indemnifying party
and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or
the
omission to state 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 any such case, (A) no such Holder will
be
required to contribute any amount in excess of the public offering price of
all
such Registrable Securities offered and sold by such Holder pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
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(f) Survival.
The
obligations of the Company and Holders under this Section 1.6
shall
survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
1.7 Rule 144
Reporting.
With a
view to making available the benefits of certain rules and regulations of the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, the Company agrees to:
(a) Make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act;
(b) Use
reasonable, diligent efforts to 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 (at any time after it has become subject to such reporting
requirements); and
(c) So
long
as a Holder owns any Registrable Securities, to furnish to the Holder forthwith
upon request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 (at any time after ninety (90)
days
after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject
to
the reporting requirements of the Exchange Act), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as a Holder may reasonably request in availing itself of any
rule
or regulation of the Commission allowing a Holder to sell any such securities
without registration (at any time after the Company has become subject to the
reporting requirements of the Exchange Act).
2. ASSIGNMENT
AND AMENDMENT.
2.1 Assignment.
Notwithstanding anything herein to the contrary:
(a) Registration
Rights.
The
registration rights of a Holder under Section 1
hereof
may be assigned only to a party who acquires at least 500,000 shares of Common
Stock; provided,
however
that no
party may be assigned any of the foregoing rights unless the Company is given
written notice by the assigning party at the time of such assignment stating
the
name and address of the assignee and identifying the securities of the Company
as to which the rights in question are being assigned; provided further,
that
any such assignee of such rights is not deemed by the Board of Directors of
the
Company, in its reasonable judgment, to be a competitor of the Company; and
provided further
that any
such assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 2.
Assignments may be made without the Company’s consent or obtaining the minimum
number of shares of Registrable Securities noted above if the assignment is
to a
partner, affiliate, shareholder, parent, child or spouse of the holder or to
the
holder’s estate.
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2.2 Amendment
and Waiver of Rights.
Any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and Holders (and/or
any of their permitted successors or assigns) holding Registrable Securities.
Any amendment or waiver effected in accordance with this
Section 2.2
shall be
binding upon each Holder, each permitted successor or assignee of such Holder
and the Company.
3. GENERAL
PROVISIONS.
3.1 Notices.
Any and
all notices required or permitted to be given to a party pursuant to the
provisions of this Agreement will be in writing and will be effective and deemed
to provide such party sufficient notice under this Agreement on the earliest
of
the following: (i) at the time of personal delivery, if delivery is
in
person; (ii) at the time of transmission by facsimile, addressed to
the
other party at its facsimile number specified herein (or hereafter modified
by
subsequent notice to the parties hereto), with confirmation of receipt made
by
both telephone and printed confirmation sheet verifying successful transmission
of the facsimile; (iii) one
(1) business day after deposit with an express overnight courier for United
States deliveries, or two (2) business days after such deposit for deliveries
outside of the United States, with proof of delivery from the courier requested;
or (iv) three (3) business days after deposit in the United States mail
by
certified mail (return receipt requested) for United States
deliveries.
All
notices for delivery outside the United States will be sent by facsimile or
by
express courier. Notices by facsimile shall be machine verified as received.
All
notices not delivered personally or by facsimile will be sent with postage
and/or other charges prepaid and properly addressed to the party to be notified
at the address or facsimile number as follows, or at such other address or
facsimile number as such other party may designate by one of the indicated
means
of notice herein to the other parties hereto as follows:
(a) if
to the
Stockholder, at 0000 Xxxxxx Xxxxx Xxxxxxx; Xxxxx 000, Xxxxxxxx 00; Xxxxxxxx
Xxxx, XX 00000.
(b) if
to the
Company, marked “Attention: President”, at 0000 Xxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxx, XX 00000.
3.2 Entire
Agreement.
This
Agreement and the documents referred to herein, including, but not limited
to
the Merger Agreement, together with all the Exhibits hereto, constitute the
entire agreement and understanding of the parties with respect to the subject
matter of this Agreement, and supersede any and all prior understandings and
agreements, whether oral or written, between or among the parties hereto with
respect to the specific subject matter hereof.
3.3 Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of Delaware, without giving effect to that body of laws pertaining to
conflict of laws.
3.4 Severability.
If any
provision of this Agreement is determined by any court or arbitrator of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given the intent
of the parties hereto. If such clause or provision cannot be so enforced, such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable clause
or provision had (to the extent not enforceable) never been contained in this
Agreement. Notwithstanding the forgoing, if the value of this Agreement based
upon the substantial benefit of the bargain for any party is materially
impaired, which determination as made by the presiding court or arbitrator
of
competent jurisdiction shall be binding, then both parties agree to substitute
such provision(s) through good faith negotiations.
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3.5 Third
Parties.
Nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights
or
remedies under or by reason of this Agreement.
3.6 Successors
And Assigns.
Subject
to the provisions of Section 2.1,
this
Agreement, and the rights and obligations of the parties hereunder, will be
binding upon and inure to the benefit of their respective successors, assigns,
heirs, executors, administrators and legal representatives.
3.7 Titles
and Headings.
The
titles, captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to
“sections” and “exhibits” will mean “sections” and “exhibits” to this
Agreement.
3.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered will be deemed an original, and all of which together
shall constitute one and the same agreement.
3.9 Costs
And Attorneys’ Fees.
In the
event that any action, suit or other proceeding is instituted concerning or
arising out of this Agreement or any transaction contemplated hereunder, the
prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
3.10 Adjustments
for Stock Splits, Etc.
Wherever
in this Agreement there is a reference to a specific number of shares of Common
Stock of the Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of stock,
the
specific number of shares so referenced in this Agreement shall automatically
be
proportionally adjusted to reflect the affect on the outstanding shares of
such
class or series of stock by such subdivision, combination or stock
dividend.
3.11 Further
Assurances.
The
parties agree to execute such further documents and instruments and to take
such
further actions as may be reasonably necessary to carry out the purposes and
intent of this Agreement.
3.12 Facsimile
Signatures.
This
Agreement may be executed and delivered by facsimile and upon such delivery
the
facsimile signature will be deemed to have the same effect as if the original
signature had been delivered to the other party. The original signature copy
shall be delivered to the other party by express overnight delivery. The failure
to deliver the original signature copy and/or the nonreceipt of the original
signature copy shall have no effect upon the binding and enforceable nature
of
this Agreement.
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IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date and year first
written above.
|
THE
COMPANY:
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|
Name:
|
|||
|
By:
|
Xxx
X. Xxxxxx
|
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|
Title:
|
Chief
Executive Officer
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| STOCKHOLDER: | |||
| THE BETHELL FAMILY TRUST, | |||
| under Trust Agreement dated June 1, 1993 | |||
| By: | |||
|
Xxxxxxx X. Xxxxxxx, Trustee |
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