Exhibit 4.10
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of __________________, 1999, among OmniLynx Communications
Corporation, a Delaware corporation (the "COMPANY"), and each person listed on
the signature pages of this Agreement under the caption "STOCKHOLDERS" (each a
"STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
WHEREAS, pursuant to various acquisition agreements entered into with the
Company (collectively, the "ACQUISITION AGREEMENTS"), each of the Stockholders
has received on the date hereof shares of common stock, par value $.0001 per
share, of the Company ("COMMON STOCK"); and
WHEREAS, in order to induce the Stockholders to enter into their
respective Acquisition Agreements, the Company has agreed to provide
registration rights on the terms set forth in this Agreement for the benefit of
the Stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the
meanings assigned to them in this Section 1 or in the parts of this Agreement
referred to below:
CODE: the Internal Revenue Code of 1986, as amended, and any
successor thereto.
COMMISSION: the Securities and Exchange Commission, and any
successor thereto.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended,
and any successor thereto, and the rules and regulations thereunder.
EXEMPT OFFERING: as defined in Section 2.
LOCK-UP AGREEMENT: the provisions in the respective Acquisition
Agreements that restrict the transfers of certain percentages of
Registrable Common for up to two years following the IPO Closing Date (as
defined in the respective Acquisition Agreements).
REGISTRABLE COMMON: shares of Common Stock that were issued to
the Stockholders pursuant to the Acquisition Agreements, and any shares
of Common Stock that may be issued on conversion of the Company's
Contingent Stock Issue Rights or Series B Preferred Stock pursuant to the
Acquisition Agreements and any additional
shares of Common Stock issued or distributed in respect of any other
shares of Registrable Common by way of a stock dividend or
distribution or stock split or in connection with a combination of
shares, recapitalization, reorganization, merger, consolidation or
otherwise. For purposes of this Agreement, shares of Registrable
Common will cease to be Registrable Common when and to the extent that
(i) a registration statement covering such shares has been declared
effective under the Securities Act and such shares have been disposed
of pursuant to such effective registration statement, (ii) such shares
are sold pursuant to Rule 144 or become saleable under Rule 144(k), or
(iii) such shares have been otherwise transferred to a person or
entity that is not a Stockholder, other than pursuant to Section 10.
REGISTRATION NOTICE: as defined in Section 2.
RULE 144: Securities Act Rule 144 (or any similar or successor
provision under the Securities Act).
SECURITIES ACT: the Securities Act of 1933, as amended, and any
successor thereto, and the rules and regulations thereunder.
SELLING STOCKHOLDER: as defined in Section 11.
2. PIGGYBACK REGISTRATION RIGHTS. At any time after the first
anniversary of the date of this Agreement and before the third anniversary of
the date of this Agreement; PROVIDED, HOWEVER, that the Registrable Common is
not subject to the Lock-up Agreement, whenever the Company proposes to register
any Common Stock for its own account under the Securities Act for a public
offering for cash, other than a registration relating to the offering or
issuance of shares in connection with (i) employee compensation or benefit plans
or (ii) one or more acquisition transactions under a Registration Statement on
Form S-4 or Form S-1 under the Securities Act (or a successor to Form S-4 or
Form S-1) (any such offering or issuance being an "EXEMPT OFFERING"), the
Company will give each Stockholder written notice of its intent to do so (a
"REGISTRATION NOTICE") at least 15 days prior to the filing of the related
registration statement with the Commission. Such notice shall specify the
approximate date on which the Company proposes to file such registration
statement and shall contain a statement that the Stockholders are entitled to
participate in such offering and shall set forth the number of shares of
Registrable Common that represents the best estimate of the lead managing
underwriter (or if not known or applicable, the Company) that will be available
for sale by the holders of Registrable Common in the proposed offering. If the
Company shall have delivered a Registration Notice, each Stockholder shall be
entitled to participate on the same terms and conditions as the Company in the
public offering to which the Registration Notice relates and to offer and sell
shares of Registrable Common therein only to the extent provided in this
Section 2. Each Stockholder desiring to participate in such offering shall
notify the Company no later than ten days following receipt of the Registration
Notice of the aggregate number of shares of Registrable Common that such
Stockholder then desires to sell in the offering. Each Stockholder desiring to
participate in such public offering may include shares of Registrable Common in
the registration statement relating to the offering, to the extent that the
inclusion of
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such shares shall not reduce the number of shares of Common Stock to be
offered and sold by the Company to be included therein. If the lead managing
underwriter selected by the Company for a public offering (or, if the
offering is not underwritten, a financial advisor to the Company) determines
that marketing factors require a limitation on the number of shares of
Registrable Common to be offered and sold in such offering, there shall be
included in the offering only that number of shares of Registrable Common, if
any, requested to be included in the offering that such lead managing
underwriter or financial advisor, as the case may be, reasonably and in good
faith believes will not jeopardize the success of the offering, PROVIDED,
HOWEVER, that if the lead managing underwriter or financial advisor, as the
case may be, determines that marketing factors require a limitation on the
number of shares of Registrable Common to be offered and sold as aforesaid
and so notifies the Company in writing, the number of shares of Registrable
Common to be offered and sold by holders desiring to participate in the
offering, shall be allocated among such holders on a PRO RATA basis based on
their holdings of Registrable Common. The Company shall have the right at
any time to reduce the number of shares requested by any Stockholder to be
included in such registration to the extent that the Company reasonably
concludes that inclusion of such shares is likely to jeopardize the
non-recognition status under the Code of any acquisition transaction
consummated pursuant to any of the Acquisition Agreements; PROVIDED, HOWEVER,
that any determination to exclude shares from any such registration pursuant
to this provision shall be based on advice of tax counsel to the Company or
its independent accountants.
3. REGISTRATION PROCEDURES. In connection with registrations
under Section 2, and subject to the terms and conditions contained therein,
the Company shall (a) use its best efforts to prepare and file with the
Commission as soon as reasonably practicable, a registration statement with
respect to the Registrable Common and use its best efforts to cause such
registration to promptly become and remain effective for so long as is
necessary to complete the offering contemplated in such registration
statement; (b) prepare and file with the Commission such amendments
(including post-effective amendments) to such registration statement and
supplements to the related prospectus to reflect appropriately the plan of
distribution of the securities registered thereunder until the completion of
the distribution contemplated by such registration statement or for so long
thereafter as a dealer is required by law to deliver a prospectus in
connection with the offer and sale of the shares of Registrable Common
covered by such registration statement and/or as shall be necessary so that
neither such registration statement nor the related prospectus shall contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and so that such registration statement and the related prospectus
will otherwise comply with applicable legal requirements; (c) provide to any
Stockholder requesting to include shares of Registrable Common in such
registration statement and a single counsel for all holders of Registrable
Common requesting to include shares of Registrable Common in such
registration statement, which counsel shall be selected by the holders of a
majority of shares of Registrable Common requested to be included in such
registration statement and shall be reasonably satisfactory to the Company,
an opportunity to review and provide comments with respect to such
registration statement (and any post-effective amendment thereto) prior to
such registration statement (or post-effective amendment) becoming effective;
(d) use its best efforts to register and qualify the Registrable Common
covered by such
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registration statement under applicable securities or "Blue Sky" laws of such
jurisdictions as the holders shall reasonably request for the distribution of
the Registrable Common; (e) take such other actions as are reasonable and
necessary to comply with the requirements of the Securities Act; (f) furnish
such number of prospectuses (including preliminary prospectuses) and
documents incident thereto as a Stockholder from time to time may reasonably
request; (g) provide to any Stockholder requesting to include Registrable
Common in such registration statement and any managing underwriter
participating in any distribution thereof, and to any attorney, accountant or
other agent retained by such Stockholder or managing underwriter, reasonable
access to appropriate officers and directors of the Company to ask questions
and to obtain information reasonably requested by any such Stockholder,
managing underwriter, attorney, accountant or other agent in connection with
such registration statement or any amendment thereto; PROVIDED, HOWEVER, that
(i) in connection with any such access or request, any such requesting
persons shall cooperate to the extent reasonably practicable to minimize any
disruption to the operation by the Company of its business and (ii) any
records, information or documents shall be kept confidential by such
requesting persons, unless (A) such records, information or documents are in
the public domain or otherwise publicly available or (B) disclosure of such
records, information or documents is required by court or administrative
order or by applicable law (including, without limitation, the Securities
Act); (h) notify each Stockholder and the managing underwriters participating
in the distribution pursuant to such registration statement promptly (i) when
the Company is informed that such registration statement or any
post-effective amendment to such registration statement becomes effective,
(ii) of any request by the Commission for an amendment or any supplement to
such registration statement or any related prospectus, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of such
registration statement or of any order preventing or suspending the use of
any related prospectus or the initiation or threat of any proceeding for that
purpose, (iv) of the suspension of the qualification of any shares of
Registrable Common included in such registration statement for sale in any
jurisdiction or the initiation or threat of a proceeding for that purpose,
(v) of any determination by the Company that any event has occurred which
makes untrue any statement of a material fact made in such registration
statement or any related prospectus or which requires the making of a change
in such registration statement or any, related prospectus in order that the
same will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (vi) of the completion of the
distribution contemplated by such registration statement if it relates to an
offering by the Company; (i) in the event of the issuance of any stop order
suspending the effectiveness of such registration statement or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any shares of Registrable Common included in such
registration statement for sale in any jurisdiction, use reasonable efforts
to obtain its withdrawal; (j) otherwise use reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, but not later than
fifteen months after the effective date of such registration statement, an
earnings statement covering the period of at least twelve months beginning
with the first full fiscal quarter after the effective date of such
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act; (k) use reasonable diligence to cause
all shares of Registrable Common included in such registration statement to
be listed on
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any securities exchange on which the Common Stock is then listed at the
initiation of the Company; (l) use reasonable diligence to obtain an opinion
from legal counsel (which may include the General Counsel of the Company) in
customary form and covering such matters of the type customarily covered by
opinions as the underwriters, if any, may reasonably request; (m) provide a
transfer agent and registrar for all such Registrable Common not later than
the effective date of such registration statement; (n) enter into such
customary agreements (including an underwriting agreement in customary form)
as the underwriters, if any, may reasonably request in order to expedite or
facilitate the disposition of such shares of Registrable Common; and (o) use
reasonable diligence to obtain a "comfort letter" from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the underwriters, if any,
may reasonably request. As used in this Section 3 and elsewhere herein, the
term "underwriters" does not include any Stockholder.
4. UNDERWRITING AGREEMENT. In connection with each registration
pursuant to Section 2 covering an underwritten registered public offering, the
Company and each participating Stockholder agree to enter into a written
agreement with the managing underwriter in such form and containing such
provisions as are customary in the securities business for such an arrangement
between such underwriter and companies of the Company's size and
investment stature, including provisions for indemnification by the Company and
each Selling Stockholder as more fully described in Section 10.
5. AVAILABILITY OF RULE 144. Notwithstanding anything contained
herein to the contrary, the Company shall not be obligated to register shares of
Registrable Common held by any Stockholder when the resale provisions of Rule
144(k) are available to such Stockholder or such Stockholder is otherwise
entitled to sell the shares of Registrable Common held by him or her in a
brokerage transaction without registration under the Securities Act and without
limitation as to volume or manner of sale or both.
6. RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale of
the shares of Registrable Common held by the Stockholders 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) at all times from and after 90
days following the effective date of the registration statement;
(b) use its best 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 that it is
subject to such reporting requirements;
(c) so long as a Stockholder owns any shares of Registrable
Common, furnish to the Stockholder forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144, the Securities Act and the
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Exchange Act (at any time that it is subject to such reporting
requirements), a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents filed in accordance
with such reporting requirements as a Stockholder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing a Stockholder to sell any such securities without
registration; and
(d) if required by the transfer agent and registrar for the
Common Stock, use reasonable diligence to obtain an opinion from legal
counsel (which may include the General Counsel of the Company) addressed
to such transfer agent and registrar, with respect to any sale of shares
of Registerable Common pursuant to Rule 144 (or, at the option of the
Company, pay the reasonable fees and expenses of legal counsel retained
by a Stockholder to provide such an opinion).
7. REGISTRATION EXPENSES. All expenses incurred in connection with
any registration, qualification and compliance under this Agreement (including,
without limitation, all registration, filing, qualification, legal, printing and
accounting fees, and including all reasonable fees of one counsel acting on
behalf of all holders of the securities being registered in such registration)
shall be borne by the Company. All underwriting commissions and discounts
applicable to shares of Registrable Common included in the registrations under
this Agreement shall be borne by the holders of the securities so registered PRO
RATA on the basis of the number of shares so registered. Subject to the
foregoing, all expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all filing fees, fees and
expenses of compliance with securities or Blue Sky laws (including, without
limitation, fees and disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Common), printing expenses, messenger and
delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of the Company's officers and employees performing legal
or accounting duties), the fees and expenses applicable to shares of Registrable
Common included in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed at the initiation of the Company, registrar and transfer
agents' fees and fees and disbursements of counsel for the Company and its
independent certified public accountants, securities act liability insurance of
the Company and its officers and directors (if the Company elects to obtain such
insurance), the fees and expenses of any special experts retained by the Company
in connection with such registration and fees and expenses of other persons
retained by the Company and incurred in connection with each registration
hereunder (but not including, without limitation, any underwriting fees,
discounts or commissions attributable to the sale of Registrable Common, and
transfer taxes, if any), will be borne by the Company.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of
Registrable Common may participate in any underwritten registration hereunder
unless such holder (a) agrees to sell such holder's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
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9. TRANSFER OF REGISTRATION RIGHTS; ADDITIONAL GRANTS OF REGISTRATION
RIGHTS. The registration rights provided to the holders of Registrable Common
under Section 2 hereof may not be transferred to any other person or entity,
except to another Stockholder or pursuant to the laws of descent and
distribution; PROVIDED, HOWEVER, that such transferees are bound by and subject
to the terms and conditions contained herein. The Company may, without the
prior consent of the Stockholders, extend the registration rights provided for
in this Agreement to additional persons or entities who become holders of Common
Stock subsequent to the date of this Agreement by entering into one or more
addenda to this Agreement with any such stockholders, and, upon execution of any
such addenda, any stockholder that is a party thereto shall thereafter be a
"Stockholder" for purposes of this Agreement and any shares of Common Stock
referred to therein as such shall be shares of "Registrable Common" for purposes
of this Agreement. Nothing herein shall limit the ability of the Company to
grant to any person or entity any registration or similar rights in the future
with respect to Common Stock or other securities of the Company (whether
pursuant to the foregoing provision or otherwise).
10. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. To the extent permitted by
law, the Company agrees to indemnify and hold harmless each Stockholder
who sells shares of Registrable Common in a registered offering pursuant
to either Section 2 (a "SELLING STOCKHOLDER"), from and against any and
all losses, claims, damages, liabilities and expenses (including
reasonable legal expenses) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Common
or in any amendment or supplement thereto or in any related preliminary
prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise
out of, or are based upon, any such untrue statement or omission or
allegation thereof based upon information furnished in writing to the
Company by such Selling Stockholder or on such Selling Stockholder's
behalf expressly for use therein. In connection with an underwritten
offering of shares of Registrable Common, the Company will indemnify any
underwriters of the Registrable Common, their partners, officers and
directors and each person who controls such underwriters (within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) on substantially the same basis as that of the
indemnification of the Selling Stockholders provided in this Section
10(a). Notwithstanding the foregoing, the Company's indemnification
obligations with respect to any preliminary prospectus shall not inure to
the benefit of any Selling Stockholder or underwriter with respect to any
loss, claim, damage, liability (or actions in respect thereof) or expense
arising out of or based on any untrue statement or alleged untrue
statement or omission or alleged omission to state a material fact in
such preliminary prospectus, in any case where (i) a copy of the
prospectus used to confirm sales of shares of Registrable Common was not
sent or given to the person asserting such loss, claim, damage or
liability at or prior to the written confirmation of the sale to such
person and
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(ii) such untrue statement or alleged untrue statement or omission or
alleged omission was corrected in such prospectus.
(b) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after
receipt by a Selling Stockholder of notice of any claim or the
commencement of any action or proceeding brought or asserted against such
Selling Stockholder in respect of which indemnity may be sought from the
Company, such Selling Stockholder shall notify the Company in writing of
the claim or the commencement of that action or proceeding; PROVIDED,
HOWEVER, that the failure to so notify the Company shall not relieve the
Company from any liability that it may have to the Selling Stockholder
otherwise than pursuant to the indemnification provisions of this
Agreement. If any such claim or action or proceeding shall be brought
against a Selling Stockholder and such Selling Stockholder shall have
duly notified the Company thereof, the Company shall have the right to
assume the defense thereof, including the employment of counsel. Such
Selling Stockholder shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Selling
Stockholder unless (i) the Company has agreed to pay such fees and
expenses or (ii) the named parties to any such action or proceeding
include both such Selling Stockholder and the Company, and such Selling
Stockholder shall have been advised by counsel that there may be one or
more legal defenses available to such Selling Stockholder which are
different from or additional to those available to the Company, in which
case, if such Selling Stockholder notifies the Company in writing that it
elects to employ separate counsel at the expense of the Company, the
Company shall not have the right to assume the defense of such action or
proceeding on behalf of such Selling Stockholder; it being understood,
however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for all Selling Stockholders. The Company
shall not be liable for any settlement of any such action or proceeding
effected without the Company's written consent.
(c) INDEMNIFICATION BY HOLDERS OF REGISTRABLE COMMON. In
connection with any registration in which a Selling Stockholder is
participating, such Selling Stockholder will furnish to the Company in
writing such information and affidavits as the Company reasonably
requests for use in connection with any related registration statement or
prospectus. To the extent permitted by law, each Selling Stockholder
agrees to indemnify and hold harmless the Company, its directors and
officers who sign the registration statement relating to shares of
Registrable Common offered by such Selling Stockholder and each person,
if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Selling
Stockholder, but only with respect to information concerning such Selling
Stockholder furnished in writing by such Selling Stockholder or on such
Selling Stockholder's behalf expressly for use in any registration
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statement or prospectus relating to shares of Registrable Common offered
by such Selling Stockholder, or any amendment or supplement thereto, or
any related preliminary prospectus. In case any action or proceeding
shall be brought against the Company or its directors or officers, or any
such controlling person, in respect of which indemnity may be sought
against such Selling Stockholder, such Selling Stockholder shall have the
rights and duties given to the Company, and the Company or its directors
or officers or such controlling persons shall have the rights and duties
given to such Selling Stockholder, by the preceding paragraph. Each
Selling Stockholder also agrees to indemnify and hold harmless any
underwriters of the Registrable Common, their partners, officers and
directors and each person who controls such underwriters (within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) on substantially the same basis as that of the
indemnification of the Company provided in this Section 10(c).
Notwithstanding anything to the contrary herein, in no event shall the
amount paid or payable by any Selling Stockholder under this Section
10(c) exceed the amount of proceeds received by such Selling Stockholder
from the offering of the Registrable Common.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 10 is unavailable to any indemnified party in respect of any
losses, claims, damages, liabilities or expenses referred to herein, then
each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified parties in connection with the
actions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified parties shall
be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnified party or indemnified parties and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The Company and the
Selling Stockholders agree that it would not be just and equitable if
contribution pursuant to this Section 10(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in this
Section 10(d). No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. If indemnification is available under this Section
10, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in Sections 10(a) and (c) without regard to the
relative fault of said indemnifying party or indemnified party or any
other equitable consideration provided for in this Section 10(d).
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11. MISCELLANEOUS
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of holders of at least 51% of the shares of Registrable Common
then outstanding.
(b) NOTICES. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by telex or telecopy, or
registered or certified mail (return receipt requested), postage prepaid,
or courier to the parties at the following addresses (or at such other
address for any party as shall be specified by like notice), PROVIDED
that notices of a change of address shall be effective only upon receipt
thereof. Notices sent by mail shall be effective when delivered, notices
sent by telecopier shall be effective when receipt is acknowledged, and
notices sent by courier guaranteeing next day delivery shall be effective
on the next business day after timely delivery by the courier. Notices
shall be sent to the following addresses:
(i) if to a Stockholder, at the most current address
given by such Stockholder to the Company in a writing making
specific reference to this Agreement;
(ii) if to the Company, at the following address:
000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxxxxxxxxx X. Xxxxx, President
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the heirs, executors, administrators,
successors and assigns of each of the parties.
(d) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each
of which when so
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executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) SECTION REFERENCES. Unless the context requires otherwise,
references in this Agreement to "Sections" are to Sections of this
Agreement.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THAT STATE.
(h) SEVERABILITY. If any one or more of the provisions
contained herein, 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 contained herein shall not
be in any way impaired thereby, it being intended that all the rights and
privileges of the Stockholders shall be enforceable to the fullest extent
permitted by law.
(i) ENTIRE AGREEMENT; TERMINATION. This Agreement is intended
by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein.
This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter. This Agreement, except
the provisions of Section 10 (which shall survive until the expiration
of the applicable statutes of limitations) and this Section 11, shall
terminate and be of no further force or effect on the third anniversary
of the date of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
OMNILYNX COMMUNICATIONS CORPORATION
By:
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Name:
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Title:
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STOCKHOLDERS:
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