SETTLEMENT AGREEMENT
SETTLEMENT
AGREEMENT
THIS
SETTLEMENT AGREEMENT (this “Agreement”)
is
entered into as of February 15, 2006 by and among Eagle Broadband, Inc., f/k/a
Eagle Wireless International Inc., a Texas corporation (“Eagle”),
Link
Two Communications, Inc., a Texas corporation acquired by Eagle as a
wholly-owned subsidiary (“Link”),
and
The Tail Wind Fund Ltd. (“Tail
Wind”).
Eagle, Link and Tail Wind are individually referred to herein as a “Party”
and
collectively as the “Parties.”
RECITALS
WHEREAS,
on or
about May 2, 2001, Link issued to Tail Wind (1) a 2% Convertible Note Due August
15, 2002 in the aggregate original principal amount of $5,000,000 (“Link
Note”)
and
(2) a Warrant to purchase 2,182,262 shares of Link common stock (“Warrant”),
pursuant to a Note Purchase Agreement executed on or about such date
(“Purchase
Agreement”);
WHEREAS,
in
connection with such Purchase Agreement and in order to induce Tail Wind to
purchase the Link Note and Warrant, Eagle and Tail Wind entered into a
Registration Rights and Conversion Terms Agreement (“Exchange
Agreement”)
as of
May 2, 2001 and Eagle executed a Guaranty dated as of such date in favor of
Tail
Wind guarantying Link’s obligations under the Link Note and Purchase Agreement
(“Guaranty”);
WHEREAS,
each of
the Link Note, Warrant, Purchase Agreement, Exchange Agreement and Guaranty
were
amended by, and entered into as of May 2, 2001 pursuant to, the Supplement
entered into among Link, Eagle and Tail Wind on May 2, 2001 (together with
the
Link Note, Warrant, Purchase Agreement, Exchange Agreement and Guaranty, the
“Transaction
Documents”);
WHEREAS,
certain
disputes have arisen among the Parties with respect to the Transaction Documents
and the respective obligations of the Parties thereunder, and Tail Wind has
initiated a litigation proceeding in the United States District Court for the
Southern District of New York (“Court”)
(case
index number 04 CV 5776 (KMW)) to resolve those disputes (the “Litigation
Proceeding”);
WHEREAS,
without
either Party admitting or denying any liability, Eagle, Link and Tail Wind
have
agreed to a settlement of their respective claims, to dismissal of the
Litigation Proceeding and to release each other from any and all obligations
and
claims, all as more fully set forth in this Agreement and on the terms and
conditions set forth in this Agreement; and
WHEREAS,
Eagle,
Link and Tail Wind intend to have the terms and conditions of this Agreement,
including without limitation the issuance to Tail Wind of shares of Eagle’s
common stock, par value $.001 per share (“Common
Stock”),
pursuant to this Agreement and upon conversion or repayment of the Convertible
Notes (as defined herein and to be issued hereunder), approved by the Court
(“Court
Approval”)
after
a hearing upon the fairness of such terms and conditions (“Hearing”)
as
contemplated by Section 3(a)(10) of the Securities Act of 1933, as amended
(“Securities
Act”);
NOW,
THEREFORE,
in
consideration of the respective covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. Court
Approval. Promptly
following execution hereof, the Parties shall each use their best efforts to
seek a Hearing and obtain the Court Approval.
2. Payments
and Issuances to Tail Wind. Eagle
shall pay Tail Wind $5 million in cash and stock as follows:
(a) Cash
upon Effective Time.
Prior
to the Effective Time, Eagle
shall pay Tail Wind $100,000 by wire transfer of such funds to the escrow
account at Xxxxx X. Xxxxxxx, P.C. indicated on Schedule 1 hereto to be held
in
escrow pending the Effective Time (as defined below). Such funds shall be
released to Tail Wind upon occurrence of the Effective Time or returned to
Eagle
if the Effective Time does not occur for any reason.
(b) Promissory
Note.
Eagle
shall pay Tail Wind $400,000, payable in 24 equal monthly installments
commencing April 1, 2006 and evidenced by a promissory note in the form attached
hereto as Exhibit
A
(“Promissory
Note”).
The
Promissory Note shall be issued and delivered to Tail Wind’s counsel upon
execution of this Agreement to be held in escrow pending the Effective
Time.
(c) Convertible
A Note.
Eagle
shall pay Tail Wind $1,000,000 (plus such additional amounts as may be added
pursuant to Sections 2(e)(ii), 2(e)(vi) and 2(e)(vii) below) on March 1, 2008,
which amounts due shall be evidenced by, and convertible into shares
(“Conversion
A Shares”)
of
Common Stock pursuant to the terms of, a convertible note in the form attached
hereto as Exhibit
B
(“Convertible
A Note”).
The
Convertible A Note shall be issued and delivered to Tail Wind’s counsel upon
execution of this Agreement to be held in escrow pending the Effective
Time.
(d) Convertible
B Note.
Eagle
shall pay Tail Wind $1,750,000 (plus any Price Reduction Amount (as defined
below) added pursuant to Section 2(e)(viii) below) on March 1, 2008, which
amounts due shall be evidenced by, and convertible into shares (“Conversion
B Shares”,
and
together with the Conversion A Shares, the “Conversion
Shares”)
of
Common Stock pursuant to the terms of, a convertible note in the form attached
hereto as Exhibit
C
(“Convertible
B Note”,
and
together with the Convertible A Note, the “Convertible
Notes”).
The
Convertible B Note shall be issued and delivered to Tail Wind’s counsel upon
execution of this Agreement to be held in escrow pending the Effective
Time.
(e) Shares.
Eagle
shall issue and deliver shares of Common Stock and/or pay cash to Tail Wind
in
the aggregate amount of $1,750,000 (as such amount may be decreased pursuant
to
subsections (iii) through (vi) inclusive below, the “Share
Amount”),
as
follows:
(i) Within
fourteen (14) days following the latest of the date of Shareholder Approval
and
Listing Approval (as such terms are defined below), Eagle shall, subject to
the
terms and conditions of this Section 2(e), issue and deliver to Tail Wind a
number of shares of Common Stock (“Shares”,
and
together with the Conversion Shares, the “Settlement
Shares”)
determined by dividing the Share Amount by the closing price (“FMV”)
of the
Common Stock on the Principal Market (as defined in the Convertible Notes)
on
the Trading Day (as defined in the Convertible Notes) immediately preceding
the
date of issuance of such Shares (“Issuance
Date”).
Such
Shares shall be duly authorized, validly issued, fully paid, non-assessable
and
free and clear of all encumbrances and restrictions (except for restrictions
on
resale under applicable securities laws).
(ii) Notwithstanding
anything to the contrary contained herein, the number of shares of Common Stock
that shall be issued to Tail Wind under this Section 2(e) shall not exceed
a
number that, when added to the total number of shares of Common Stock deemed
beneficially owned by Tail Wind (other than by virtue of the ownership of
securities or rights to acquire securities (including under the Convertible
Notes) that have limitations on Tail Wind’s right to convert, exercise or
purchase similar to the limitation set forth herein), together with all shares
of Common Stock deemed beneficially owned at such time (other than by virtue
of
the ownership of securities or rights to acquire securities that have
limitations on the right to convert, exercise or purchase similar to the
limitation set forth herein) by Tail Wind’s “affiliates” at such time (as
defined in Rule 144 of the Securities Act) that would be aggregated for purposes
of determining whether a group under Section 13(d) of the Securities Exchange
Act of 1934 as amended (“Exchange
Act”),
exists, would exceed 9.9% of the total issued and outstanding shares of the
Common Stock on the Issuance Date (the “Restricted
Ownership Percentage”).
To
the extent any portion of the Share Amount cannot be paid in Shares as a result
of application of the Restricted Ownership Percentage, such unpaid portion
of
the Share Amount shall be automatically added to the original principal amount
of the Convertible A Note as of the Issuance Date.
(iii) In
the
event that Tail Wind has not received all the Shares in its brokerage account
(whether due to the failure to obtain Shareholder Approval, Listing Approval
or
otherwise) by June 20, 2006, Eagle shall on such date make a cash payment to
Tail Wind of $250,000 by wire transfer of immediately available funds to the
account designated by Tail Wind, and the Share Amount shall contemporaneously
be
reduced by such amount paid.
(iv) In
the
event that Tail Wind has not received all the Shares in its brokerage account
(whether due to the failure to obtain Shareholder Approval, Listing Approval
or
otherwise) by August 20, 2006, Eagle shall on such date make an additional
cash
payment to Tail Wind of $250,000 by wire transfer of immediately available
funds
to the account designated by Tail Wind, and the Share Amount shall
contemporaneously be reduced by such additional amount paid.
(v) In
the
event that Tail Wind has not received all the Shares in its brokerage account
(whether due to the failure to obtain Shareholder Approval, Listing Approval
or
otherwise) by October 20, 2006, Eagle shall on such date make an additional
cash
payment to Tail Wind of $250,000 by wire transfer of immediately available
funds
to the account designated by Tail Wind, and the Share Amount shall
contemporaneously be reduced by such additional amount paid.
(vi) In
the
event that Tail Wind has not received all the Shares in its brokerage account
(whether due to the failure to obtain Shareholder Approval, Listing Approval
or
otherwise) by December 20, 2006, then (A) Eagle shall on such date make an
additional cash payment to Tail Wind of $250,000 by wire transfer of immediately
available funds to the account designated by Tail Wind, and the Share Amount
shall contemporaneously be reduced by such additional amount paid, and (B)
the
Share Amount shall be automatically added to the original principal amount
under
the Convertible A Note as of such date.
(vii) If
any
Bankruptcy Event (as defined in the Convertible Note) occurs prior to the
issuance of the Shares, the Share Amount shall automatically, immediately prior
to such occurrence, be converted to a debt obligation payable in cash and added
to the original principal amount of the Convertible A Note.
(viii) If
the
closing price of the Common Stock on the Principal Market on the Registration
Effectiveness Date (as defined below) is less than the FMV as of the Issuance
Date, then the Price Reduction Amount (as defined below) shall be automatically
added to the original principal amount under the Convertible B Note as of such
Registration Effectiveness Date. The “Price
Reduction Amount”
shall
mean the product of (A) the number of Shares issued multiplied by (B) the
difference between the closing price of the Common Stock on the Principal Market
on the Registration Effectiveness Date and the FMV as of the Issuance
Date.
(ix) Eagle
shall deliver to Tail Wind one or more stock certificates evidencing the Shares
within three (3) Trading Days following the Issuance Date, and Eagle shall
deliver to Tail Wind each $250,000 payment required under clauses (iii), (iv),
(v) and (vi) above within three (3) Trading Days following June 20, 2006, August
20, 2006, October 20, 2006 and December 20, 2006, respectively. If Eagle fails
to deliver such stock certificates or any such payment within five days
following such third Trading Day, Tail Wind may declare upon written notice
(as
set forth in Section 14(f) below) the entire then outstanding Share Amount
to be
due and payable immediately. At
any
time following such notice of acceleration, Tail Wind shall be entitled (i)
to
complete (by filling in the appropriate accelerated amount) the relevant
affidavit for judgment by confession delivered by Eagle pursuant to Section
6(c)(vii) of this Agreement and (ii) to file such completed affidavit, with
any
other appropriate material, in New York County, New York, in the manner
necessary to effect the entry of judgment in such accelerated amount against
Eagle and in favor of Tail Wind.
3. No
Shorting. Tail
Wind
agrees that it will not enter into any Short Sales (as hereinafter defined)
during the period commencing on the date hereof and ending on the date on which
Tail Wind no longer holds any Shares or the Convertible Notes. “Short
Sale”
means
a
sale of Common Stock by Tail Wind that is marked as a short sale and that is
made at a time when there is no equivalent offsetting long position in Common
Stock held by Tail Wind. For purposes of determining whether there is an
equivalent offsetting long position in Common Stock held by Tail Wind,
Conversion Shares issuable upon conversion of the Convertible Notes (ignoring
any conversion restrictions or limitations included therein) shall be deemed
to
be held long by Tail Wind in addition to all Shares, Conversion Shares and
other
shares of Common Stock held in a long position by Tail Wind.
4. Surrender
of Securities/Check.
Upon
execution hereof (a) Tail Wind shall surrender the Link Note and Warrant to
Eagle’s counsel (or in lieu thereof deliver an affidavit of lost security(ies)
in form and substance reasonably acceptable to Eagle’s counsel), and (b) Eagle
shall return to Tail Wind check number 1030 drawn on the Xxxxx X. Xxxxxxx
Attorney Trust Account to the order of Eagle on or about February 13, 2004
in
the amount of $139,669.80 (the “Check”)
(or in
lieu thereof deliver an affidavit of lost check in form and substance reasonably
acceptable to Tail Wind’s counsel). The Link Note and Warrant shall be held in
escrow pending the Effective Time.
5. Shareholder
and Exchange Approvals.
(a) Shareholder
Approval.
Eagle
shall promptly seek the approval (“Shareholder
Approval”)
of its
stockholders and take such other action as necessary or desirable to amend
its
Articles of Incorporation to authorize such number of additional shares of
Common Stock as is equal to at least 200% of the aggregate number of Settlement
Shares issuable upon full conversion of the Convertible Note (assuming an FMV
and Conversion Price equal to the closing bid price on the Trading Day
immediately preceding such approval and ignoring all limitations and
restrictions on conversion, ownership or issuance set forth therein.
The
Board of
Directors of Eagle shall call one or more annual or special meetings of the
stockholders of Eagle
in the
manner set forth in the By-laws of Eagle
(and in
accordance with the Exchange Act) in order to solicit such Shareholder Approval,
and such Board
of
Directors shall recommend an affirmative vote for such Shareholder
Approval. Eagle shall continue to seek such Shareholder Approval as reasonably
practical until December 20, 2006.
(b) Reservation
of Common Stock.
Contemporaneously with obtaining Shareholder Approval and at all times
thereafter Eagle shall reserve and keep available out of its authorized but
unissued shares of Common Stock, solely for the purpose of providing for the
issuance of the Settlement Shares, such number of shares of Common Stock as
set
forth in the Convertible Notes.
(c) AMEX
Listing.
On or
prior to the Issuance Date, but no later than January 1, 2007 (and no later
than
June 1, 2006 with respect to the Conversion B Shares in particular), Eagle
shall
apply for, and engage in good faith efforts to obtain the approval of, the
listing of all Settlement Shares on the American Stock Exchange (or other
Principal Exchange, as defined in the Convertible Notes) (“Listing
Approval”),
and
Eagle shall engage in good faith efforts to maintain such listing and approval,
should such listing application be approved.
6. Effective
Time and Conditions to Settlement
(a) Effective
Time.
This
Agreement shall become effective only upon the satisfaction or waiver of the
conditions set forth in paragraphs (b) and (c) of this Section 6 (“Effective
Time”).
The
delivery of the documents contemplated by this Section 6 shall take place at
the
offices of Xxxxx X. Xxxxxxx, P.C., 000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
XX
00000 on March 1, 2006, or at such other location and/or on such other date
as
the parties shall mutually agree. If the conditions set forth in paragraphs
(b)
and (c) have not been satisfied or waived on or before March 3, 2006, or such
later date as the parties may agree in writing (the “Deadline”),
this
Agreement shall terminate and be null and void and of no further force or effect
without liability of either Party, except for liability for any breach of this
Agreement.
(b) Conditions
to Eagle's Obligations.
The
obligations of Eagle to consummate the transactions contemplated by this
Agreement shall be subject to the surrender to Eagle by Tail Wind of the Link
Note and Warrant.
(c) Conditions
to Tail Wind's Obligations.
The
obligations of Tail Wind to consummate the transactions contemplated by this
Agreement shall be subject to the following:
(i) wire
transfer by Eagle of $100,000 as contemplated by Section 2(a) of this Agreement
to the account designated therein;
(ii) the
execution, issuance and delivery of the Promissory Note to Tail Wind as
contemplated by Section 2(b) of this Agreement;
(iii) the
execution, issuance and delivery of the Convertible A Note to Tail Wind as
contemplated by Section 2(c) of this Agreement;
(iv) the
execution, issuance and delivery of the Convertible B Note to Tail Wind as
contemplated by Section 2(d) of this Agreement;
(v) the
surrender to Tail Wind of the Check;
(vi) the
issuance and delivery to Tail Wind of a legal opinion from Arent Fox PLLC
covering the exemption from the Securities Act of the issuance of the Settlement
Shares to Tail Wind, in form and substance reasonably acceptable to Tail Wind;
and
(vii) the
execution and delivery to Tail Wind of original signed and notarized copies
of
affidavits for judgment by confession, for the accelerated amounts to be due
hereunder and under the Promissory Note and Convertible Notes, in form and
substance reasonably acceptable to Tail Wind.
(d) Obligations
to Satisfy Conditions.
Each of
the Parties covenant and agree to use its best efforts to cause the conditions
to the obligations of the other to be satisfied in full on or before the
Deadline.
(e) Escrow.
The
Link Note and Warrant shall be delivered to White Field, Inc. to hold in escrow
pending release to Eagle at the Effective Time pursuant to the authorization
(which may be by email) to release furnished by Xxxxx X. Xxxxxxx, P.C. on behalf
of Tail Wind. The items set forth in clauses (i) through (vii) of Section 6(c)
(with the exception of item (vi), which will be issued and delivered to Tail
Wind by Arent Fox PLLC on or before the Effective Time) shall be delivered
to
Xxxxx X. Xxxxxxx, P.C. to hold in escrow pending release to Tail Wind at the
Effective Time pursuant to the authorization (which may be by email) to release
furnished by White Field, Inc. on behalf of Eagle. If the Effective Time does
not occur by the Deadline, all such items and documents shall be promptly
returned to Eagle and Tail Wind, as the case may be.
7. Mutual
Release. In
consideration of the covenants, agreements and undertakings set forth in this
Agreement, the Parties agree to the mutual general release set forth in this
Section 7 (the “Mutual
Release”),
such
Mutual Release to be effective on the date which is ninety-one (91) days
following the Issuance Date (“Release
Date”)
so
long as no Bankruptcy Event (as defined in the Convertible Notes) has occurred
prior to such date, except that, under no circumstances will the Mutual Release
be deemed to cover any claims that may arise under the terms of this Agreement,
the Promissory Note, the Convertible Notes, or any other document delivered
in
connection herewith or therewith. The Mutual Release shall become null and
void
if a Bankruptcy Event occurs before the Release Date.
(a) Release
of Claims by Eagle/Link.
Eagle
and Link each forever generally and completely releases and discharges Tail
Wind, each of its affiliates and each of its and their directors, officers,
employees, attorneys and agents, in their corporate, company and individual
capacities (the “Tail
Wind Parties”),
of
and from any and all claims and demands of every kind and nature, in law, equity
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, and in particular (but without limitation) of and from all claims
and demands of every kind and nature, known and unknown, suspected and
unsuspected, disclosed and undisclosed, for damages, actual, consequential
and
exemplary, past, present and future, arising out of or in any way related to
Eagle's and Link’s dealings with any Tail Wind Party in connection with the
Transaction Documents or the transactions contemplated thereby, and any and
all
claims raised in the Litigation Proceeding.
(b) Release
of Claims by Tail Wind.
Tail
Wind forever generally and completely releases and discharges Eagle and Link,
each of their affiliates and each of their directors, officers, employees,
attorneys and agents, in both their corporate and individual capacities (the
“Eagle/Link
Parties”),
of
and from any and all claims and demands of every kind and nature, in law, equity
or otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, and in particular (but without limitation) of and from all claims
and demands of every kind and nature, known and unknown, suspected and
unsuspected, disclosed and undisclosed, for damages, actual, consequential
and
exemplary, past, present and future, arising out of or in any way related to
Tail Wind's dealings with any Eagle/Link Party in connection with the
Transaction Documents or the transactions contemplated thereby, and any and
all
claims raised in the Litigation Proceeding.
(c) Stay
and Dismissal of Litigation Proceeding.
On or
promptly following the Effective Time, the parties shall cause further
prosecution of the Litigation Proceeding to be stayed without prejudice until
the earlier of the Release Date or any Bankruptcy Event. On or promptly
following the Release Date, the parties shall cause the Litigation Proceeding
to
be dismissed with prejudice. Each party shall bear its own attorneys’ fees,
expenses and costs incurred in connection with the Litigation Proceeding and
with the settlement contemplated hereby.
8. Representations
and Warranties of Eagle and Link. Each
of
Eagle and Link represents and warrants to Tail Wind that:
(a) Authorization/Enforceability.
Each of
Eagle and Link has full corporate power and authority and has taken all
requisite corporate action on the part of each of Eagle and Link, its officers,
directors and stockholders necessary for (i) the authorization, execution
and delivery of this Agreement, the Promissory Note and Convertible Notes and
(ii) the performance of all obligations of Eagle and Link under this Agreement,
the Promissory Note and the Convertible Notes. This Agreement constitutes a
legal, valid and binding obligation of Eagle and Link, enforceable against
Eagle
and Link in accordance with its terms. Each of the Promissory Note, Convertible
A Note and Convertible B Note constitutes a legal, valid and binding obligation
of Eagle, enforceable against Eagle in accordance with its terms.
(b) Consents.
The
execution, delivery and performance by Eagle and Link of this Agreement, the
Promissory Note and Convertible Notes requires no consent of, action by or
in
respect of, or filing with, any Person, except as otherwise contemplated by
this
Agreement.
(c) No
Breach, Violation or Default.
The
execution, delivery and performance by Eagle and Link of this Agreement, the
Promissory Note and the Convertible Notes will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under
(i) any statute, rule, regulation or order of any governmental agency or body
or
any court, domestic or foreign, having jurisdiction over Eagle, Link or any
of
their subsidiaries or properties, or (ii) any agreement or instrument to which
Eagle, Link or any of their subsidiaries is a party or by which Eagle, Link
or
any subsidiary is bound, or (iii) the Articles of Incorporation or By-Laws
of
Eagle or Link.
(d) Valid
Issuance of the Shares.
The
Settlement Shares, when issued to Tail Wind in accordance with the terms of
this
Agreement and the Convertible Notes, will be duly authorized, validly issued,
fully paid, non-assessable, and free and clear of all liens, claims,
encumbrances and restrictions (except for restrictions on resale under
applicable securities laws).
(e) Compliance
with Amex Continued Listing Requirements.
To
Eagle’s knowledge, there are no proceedings pending or threatened against Eagle
relating to the continued listing of the Common Stock on the American Stock
Exchange (“Amex”)
and
Eagle has not received any written notice of the delisting or the possible
delisting of the Common Stock from Amex within the past six months.
(f) Solvency.
(i) The
execution, delivery and performance by Eagle and Link of this Agreement, the
Promissory Note and the Convertible Notes and the consummation of the
transactions contemplated hereby and thereby do not and will not constitute
(A)
a fraudulent transfer or conveyance under New York, Texas or other applicable
state laws relating to fraudulent transfer or conveyance nor (B) a preferential
transfer under federal or any applicable state bankruptcy or insolvency
law.
(ii) Neither
Eagle nor any of its subsidiaries is subject to any bankruptcy, insolvency
or
similar proceeding.
9. Representations
and Warranties of Tail Wind.
Tail
Wind represents and warrants to Eagle and Link that:
(a) Authorization/Enforceability.
Tail
Wind has full corporate or other power and authority and has taken all requisite
corporate or other action on the part of Tail Wind, its officers, directors
and
stockholders necessary for (i) the authorization, execution and delivery of
this Agreement and (ii) the performance of all obligations of Tail Wind under
this Agreement. This Agreement constitutes a valid and legally binding
obligation of Tail Wind, enforceable against Tail Wind in accordance with its
terms.
(b) Consents.
The
execution, delivery and performance by Tail Wind of this Agreement requires
no
consent of, action by or in respect of, or filing with, any Person, except
as
otherwise contemplated by this Agreement.
(c) No
Breach, Violation or Default.
The
execution, delivery and performance by Tail Wind of this Agreement will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under (i) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over Tail Wind or any of its properties, or (ii) any agreement
or
instrument to which Tail Wind is a party or is bound, or (iii) the
organizational documents of Tail Wind.
10. Registration
and Free Trading of Settlement Shares.
(a) Certain
Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
(i) “Prospectus”
shall
mean the prospectus included in any Registration Statement, as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus.
(ii) “Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a registration statement or
similar document in compliance with the Securities Act (as defined below),
and
the declaration or ordering of effectiveness of such registration statement
or
document.
(iii) “Registrable
Securities”
shall
mean (a) the Settlement Shares (without regard to any limitations on beneficial
ownership contained in this Agreement or the Convertible Notes) or other
securities issued or issuable to Tail Wind (i) upon conversion of the
Convertible Notes, or (ii) upon any distribution with respect to, any exchange
for or any replacement of such Settlement Shares or Convertible Notes or (iii)
upon any conversion, exercise or exchange of any securities issued in connection
with any such distribution, exchange or replacement; (b) securities issued
or
issuable upon any stock split, stock dividend, recapitalization or similar
event
with respect to the foregoing; and (c) any other security issued as a
distribution with respect to, in exchange for or in replacement of the
securities referred to in the preceding clauses.
(iv) “Registration
Effectiveness Date”
shall
mean date on which the initial Registration Statement filed pursuant to this
Agreement is declared effective by the SEC.
(v) “Registration
Period”
shall
mean the period commencing on the Registration Effectiveness Date and
terminating upon the earlier of (i) the date on which all Registrable Securities
have been sold or (ii) the date on which all Registrable Securities may be
sold
pursuant to Rule 144(k) promulgated under the Securities Act (or any successor
provision).
(vi) “Registration
Statement”
shall
mean any registration statement of Eagle filed under the Securities Act that
covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
(vii) “SEC”
shall
mean the United States Securities and Exchange Commission.
(b) Registration.
(i) Registration
Statements.
Promptly following the Issuance Date, (but no later than the earlier of (A)
twenty (20) days after the Issuance Date and (B) January 1, 2007 in the event
the Issuance Date does not occur by then), Eagle shall prepare and file with
the
SEC one Registration Statement on Form S-3 (or, if Form S-3 is not then
available to Eagle, on such form of registration statement as is then available
to effect a registration for resale of the Registrable Securities) covering
the
resale of the Registrable Securities in an amount equal to 100% of the number
of
Shares issued on the Issuance Date plus 120% of the number of Conversion Shares
issued and issuable upon full conversion of the Convertible Notes at the
conversion price in effect as of the filing date (without regard to any
limitations or restrictions on beneficial ownership). In the event any
Registrable Securities are not covered by the Registration Statement, Eagle
shall promptly amend such Registration Statement or prepare and file with the
SEC a new Registration Statement in accordance with the terms hereof in order
to
cause such Registrable Securities to be covered by a Registration Statement.
Without limiting the foregoing, if at any time less than 110% of the number
of
Conversion Shares issued and issuable upon full conversion of the Convertible
Notes (at the then applicable conversion price in effect without regard to
any
limitations or restrictions on beneficial ownership) are covered for resale
by
an effective Registration Statement, then Eagle shall promptly amend such
Registration Statement or prepare and file with the SEC a new Registration
Statement in accordance with the terms hereof in order to cause 175% of the
number of Conversion Shares issued and issuable upon full conversion of the
then
outstanding principal due under the Convertible Notes at the conversion price
in
effect as of the filing date (without regard to any limitations or restrictions
on beneficial ownership) to be covered for resale by one or more Registration
Statement(s).
(ii) Expenses.
Eagle
will pay all expenses associated with each registration, but excluding
discounts, commissions and fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals.
(iii) Effectiveness.
Eagle
shall use its best efforts to have each Registration Statement declared
effective as soon as practicable, but in no event later than the earlier of
(A)
ninety (90) days after the Issuance Date for the initial Registration Statement
and sixty (60) days after filing thereof for any subsequent Registration
Statement, and (B) March 1, 2007 in the event the Issuance Date does not occur
by January 1, 2007) . In connection therewith, Eagle shall respond to all SEC
comments on the Registration Statement and file any amendments to the
Registration Statement as soon as reasonably practicable following any date
on
which the SEC furnishes comments to, asks questions of, or requests further
information from, Eagle or its counsel with respect to the Registration
Statement or any part thereof or any document incorporated by reference therein.
After any Registration Statement is declared effective by the SEC, Eagle shall
use its best efforts to cause such Registration Statement to remain continuously
effective in accordance with the terms hereof throughout the Registration
Period; provided,
however,
that
for not more than ten (10) consecutive days and for a total of not more than
thirty (30) days in any twelve (12) consecutive month period, Eagle may delay
the disclosure of material non-public information concerning Eagle the
disclosure of which at the time is not, in the good faith opinion of Eagle,
in
the best interests of Eagle (“Permitted
Blackout”),
provided, that Eagle shall promptly (a) notify Tail Wind in writing of the
existence of (but in no event, without Tail Wind’s prior written consent, shall
Eagle disclose to Tail Wind any of the facts or circumstances regarding)
material non-public information giving rise to a Permitted Blackout, and (b)
advise Tail Wind in writing to cease all sales under the Registration Statement
until the end of the Permitted Blackout.
(c) Eagle
Obligations.
In
addition to the foregoing, Eagle shall, as expeditiously as
possible:
(i) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective for the entire Registration Period (subject
Permitted Blackouts) and to comply with the provisions of the Securities Act
and
the Exchange Act with respect to the resale or distribution of all Registrable
Securities;
(ii) furnish
to Tail Wind such number of copies of a Prospectus, including a preliminary
prospectus, and all amendments and supplements thereto and such other documents
as Tail Wind may reasonably request in order to facilitate Tail Wind’s
disposition of the Registrable Securities;
(iii)
make
best efforts to prevent the issuance of any stop order or other suspension
of
effectiveness and, if such order is issued, obtain the withdrawal of any such
order at the earliest possible moment;
(iv) prior
to
any public offering of Registrable Securities, use its best efforts to register
or qualify or cooperate with Tail Wind and its counsel in connection with the
registration or qualification of such Registrable Securities for offer and
sale
under the securities or blue sky laws of such jurisdictions as Tail Wind
reasonably requests in writing and do any and all other reasonable acts or
things necessary or advisable to enable the resale or distribution in such
jurisdictions of the Registrable Securities covered by the Registration
Statement, provided that Eagle 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, or to become subject
to
any material tax in any such state or jurisdiction where it is not otherwise
subject;
(v) make
best
efforts to cause all Registrable Securities covered by a Registration Statement
to be listed on each securities exchange, interdealer quotation system or other
market on which similar securities issued by Eagle are then quoted or listed;
and
(vi) immediately
notify Tail Wind, at any time when a Prospectus relating to the Registrable
Securities is required to be delivered under the Securities Act, upon discovery
that, or upon 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 any material fact required to
be
stated therein or necessary to make the statements therein not misleading in
the
light of the circumstances then existing, and at the request of Tail Wind,
promptly prepare and furnish to Tail Wind a reasonable number of copies of
a
supplement to or an amendment of such Prospectus as may be necessary so that,
as
thereafter delivered to the purchasers of such Registrable Securities, such
Prospectus shall not include an 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 in the light of the circumstances then
existing.
(d) Indemnification.
(i) Indemnification
by Eagle.
Eagle
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
Tail Wind, its officers, directors, stockholders and employees and each person
who controls Tail Wind (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorney’s fees) and expenses imposed on such person caused by (i)
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or any preliminary prospectus or any
amendment or supplement thereto or 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 the same are based upon
any
information furnished in writing to Eagle by Tail Wind, expressly for use
therein, or (ii) any violation by Tail Wind of any federal, state or common
law,
rule or regulation applicable to Tail Wind in connection with any Registration
Statement, Prospectus or any preliminary prospectus, or any amendment or
supplement thereto, and shall reimburse in accordance with subparagraph (iii)
below, each of the foregoing persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claims. The foregoing is subject to the condition that, insofar as the foregoing
indemnities relate to any untrue statement, alleged untrue statement, omission
or alleged omission made in any preliminary prospectus or Prospectus that is
eliminated or remedied in any Prospectus or amendment or supplement thereto,
the
above indemnity obligations of Eagle shall not inure to the benefit of any
indemnified party if a copy of such corrected Prospectus or amendment or
supplement thereto had been made available to such indemnified party and was
not
sent or given by such indemnified party at or prior to the time such action
was
required of such indemnified party by the Securities Act and if delivery of
such
Prospectus or amendment or supplement thereto would have eliminated (or been
a
sufficient defense to) any liability of such indemnified party with respect
to
such statement or omission. Indemnity under this Section 10(d) shall remain
in
full force and effect regardless of any investigation made by or on behalf
of
any indemnified party and shall survive the permitted transfer of the
Registrable Securities.
(ii) Indemnification
by Tail Wind.
In
connection with any registration pursuant to the terms of this Agreement, Tail
Wind will furnish to Eagle in writing such information as Eagle reasonably
requests concerning the Tail Wind or the proposed manner of resale or
distribution for use in connection with any Registration Statement or Prospectus
and agrees to indemnify and hold harmless, to the fullest extent permitted
by
law, Eagle, its directors, officers, employees, stockholders and each person
who
controls Eagle (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expense (including reasonable attorney’s fees)
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated in the Registration Statement or Prospectus
or preliminary prospectus or amendment or supplement thereto or necessary to
make the statements therein not misleading, to the extent, but only to the
extent that such untrue statement or omission is contained in any information
furnished in writing by Tail Wind to Eagle specifically for inclusion in such
Registration Statement or Prospectus or amendment or supplement thereto and
that
such information was substantially relied upon by Eagle in preparation of the
Registration Statement or Prospectus or any amendment or supplement thereto.
In
no event shall the liability of Tail Wind be greater in amount than the dollar
amount of the proceeds (net of all expenses paid by any holder of Registrable
Securities and the amount of any damages such holder has otherwise been required
to pay by reason of such untrue statement or omission) received by such holder
of Registrable Securities upon the sale of the Registrable Securities included
in the Registration Statement giving rise to such indemnification
obligation.
(iii) Conduct
of Indemnification Proceedings.
Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless
(a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party
with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided, further, that the failure of any indemnified party to give notice
as
provided herein shall not relieve the indemnifying party of its obligations
hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such
claim or litigation. It is understood that the indemnifying party shall not,
in
connection with any proceeding in the same jurisdiction, be liable for fees
or
expenses of more than one separate firm of attorneys at any time for all such
indemnified parties. No indemnifying party will, except with the consent of
the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation.
(iv) Contribution.
If for
any reason the indemnification provided for in the preceding paragraphs (i)
and
(ii) is unavailable to an indemnified party or insufficient to hold it harmless,
other than as expressly specified therein, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result
of
such loss, claim, damage or liability in such proportion as is appropriate
to
reflect the relative fault of the indemnified party and the indemnifying party,
as well as any other relevant equitable considerations. 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 not guilty
of
such fraudulent misrepresentation. In no event shall the contribution obligation
of a holder of Registrable Securities be greater in amount than the dollar
amount of the proceeds (net of all expenses paid by such holder and the amount
of any damages such holder has otherwise been required to pay by reason of
such
untrue or alleged untrue statement or omission or alleged omission) received
by
it upon the sale of all the Registrable Securities sold by such indemnified
party which were covered by the relevant Registration Statement or Prospectus
contained therein.
(e) Effectiveness
Default.
If (i)
the Registration Statement covering Registrable Securities is not declared
effective by the SEC within ninety (90) days following the Issuance Date (or
sixty (60) days following the filing of any subsequent Registration Statement,
or the fifth day following the date on which Eagle is notified by the SEC that
any Registration Statement will not be reviewed or is no longer subject to
further review and comments, or March 1, 2007 in the event the Issuance Date
does not occur prior to January 1, 2007), (ii) after the Registration
Effectiveness Date, sales cannot be made pursuant to such Registration Statement
for any reason (including without limitation by reason of a stop order, or
Eagle’s failure to update the Registration Statement), other than pursuant to a
Permitted Blackout, or (iii) the Registrable Securities specifically are not
listed or included for quotation on the American Stock Exchange, the New York
Stock Exchange, the Nasdaq National Market, the Nasdaq Capital Market or the
OTC
Bulletin Board, or trading of the Common Stock is suspended or halted thereon
for more than three (3) hours (any such default under (i), (ii) or (iii)
constituting an “Effectiveness
Default”),
then
Eagle will pay Tail Wind as liquidated damages and not as a penalty, an amount
equal to 2% of the product of the number of Registrable Securities (whether
issued or not) as of the date of such Effectiveness Default times the closing
price of the Common Stock on the Principal Market on the date of such
Effectiveness Default, for each month (or portion thereof) following the
Effectiveness Default during which any of the events described in (i), (ii)
or
(iii) above occurs and is continuing, which amount shall be payable at the
end
of each such month and upon termination of the Effectiveness Default. Such
payments shall be in partial compensation to Tail Wind, and shall not constitute
Tail Wind’s exclusive remedy for such events.
(f) Rule
144.
Without
limiting anything contained in this Agreement, in the event that any of the
Settlement Shares constitute “restricted securities” under and as defined in
Rule 144 of the Securities Act, Eagle agrees that (i) for purposes of
determining the holding period under Rule 144 of the Securities Act, for
Conversion Shares issued upon conversion of the Convertible Notes, based on
all
facts presently known to Eagle, Eagle shall take the position that the holding
period of Tail Wind for such Conversion Shares shall be tacked to the holding
period of Tail Wind for the Convertible Notes, and (ii) it shall make publicly
available on a timely basis the information necessary to enable Rule 144 under
the Securities Act to be available for resale of the Settlement
Shares.
(g) No
Action Letter. Eagle
understands that Tail Wind may request (“Request”)
from
the Division of Corporation Finance of the SEC a “no action letter”
(“No
Action Letter”)
to the
effect that (i) such Division will not recommend enforcement if Eagle issues
the
Settlement Shares to Tail Wind without registration under the Securities Act
and
(ii) Tail Wind may resell the Settlement Shares received by it without
registration under the Securities Act and without regard to Securities Act
Rules
144 or 145(c) and (d). Eagle agrees to cooperate with Tail Wind in connection
with any such Request, including without limitation taking any and all actions
and executing any and all documents reasonably requested by Tail Wind in
connection with any such Request. Eagle shall take not any position inconsistent
with the position contained in any such Request. Based on all facts presently
known to Eagle, Eagle agrees (i) that Tail Wind has never been, is not
currently, and immediately following execution hereof will not be, an affiliate
of or affiliated with Eagle in any manner or way whatsoever, and (ii) Tail
Wind
shall not in the future constitute an affiliate of or be affiliated with Eagle
in any manner or way whatsoever so long as its sole relationship with Eagle
continues to be as a holder of the Settlement Shares, Promissory Note and
Convertible Notes and a Party to this Agreement. Eagle shall not take or assert
any position inconsistent with the foregoing clauses (i) and (ii).
Notwithstanding the provisions of this Section 10(g), in the event that the
staff of the SEC disagrees with Eagle’s interpretation that Tail Wind is not an
affiliate of Eagle, Eagle will comply with the SEC’s interpretation and take any
necessary steps to remain in compliance with any applicable securities
laws.
(h) Legends.
Promptly
following the earliest of (a) the Registration Effectiveness Date, (b) the
date
on which Rule 144(k) under the Securities Act becomes available with respect
to
the Registrable Securities, or (c) the date on which Eagle and/or Tail Wind
receives a No Action Letter, Eagle shall promptly cause certificates evidencing
the Settlement Shares previously issued to be replaced with certificates which
do not bear such restrictive legends, and Conversion Shares subsequently issued
shall not bear such restrictive legends. In the event that Eagle does not issue
new, unlegended certificates in replacement of the legended certificates as
required under this Section 10(h) within 10 business days of a written request
to do so, or if any subsequently issued Conversion Shares are issued with
restrictive legends when unlegended certificates are required under this Section
10(h), Eagle shall be liable to Tail Wind (or subsequent holder thereof) for
damages in an amount of $1,000 cash for each such day beyond the replacement
date (or issuance date, in the case of newly converted Convertible Notes) that
such unlegended certificates are not issued and delivered to Tail Wind (or
subsequent holder).
11. Arbitration.
Any
and
all disputes arising from or in connection with this Agreement (excluding
matters pertaining to the Promissory Note or Conversion Notes subject to the
confession of judgment described in Section 12 below), whether based on
contract, tort, common law, equity, statute, regulation, order or otherwise
(“Disputes”),
including Disputes arising in connection with claims by third persons, shall
be
exclusively governed by and settled in accordance with the provisions of this
Section 11; provided, that the foregoing shall not preclude equitable or other
judicial relief to enforce the provisions of this Section 11 or to preserve
the
status quo pending resolution of Disputes hereunder.
(a) Binding
Arbitration.
The
Parties hereby agree to submit all Disputes to arbitration for final and binding
resolution. Either Party may initiate such arbitration by delivery of a demand
therefor (the “Arbitration
Demand”)
to the
other Party. The arbitration shall be conducted in New York, New York by a
sole
arbitrator selected by agreement of the parties not later than 10 days after
delivery of the Arbitration Demand, or, failing such agreement, appointed
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association, as amended from time to time (the “AAA
Rules”).
If
the arbitrator becomes unable to serve, his successor(s) shall be similarly
selected or appointed.
(b) Procedures.
The
arbitration shall be conducted pursuant to the Federal Arbitration Act and
such
procedures as the parties may agree or, in the absence of or failing such
agreement, pursuant to the AAA Rules. Notwithstanding the foregoing (i) each
party shall provide to the other, reasonably in advance of any hearing, copies
of all documents that a party intends to present in such hearing; (ii) all
hearings shall be conducted on an expedited schedule; and (iii) all proceedings
shall be confidential, except that either party may at its expense make a
stenographic record thereof.
(c) Timing.
The
arbitrator shall complete all hearings not later than 90 days after his or
her
selection or appointment, and shall make a final award not later than 30 days
thereafter. The arbitrator shall apportion all costs and expenses of the
arbitration, including the arbitrator's fees and expenses and fees and expenses
of experts (“Arbitration
Costs”),
between the prevailing and non-prevailing party as the arbitrator shall deem
fair and reasonable. In circumstances where a Dispute has been asserted or
defended against on grounds that the arbitrator deems manifestly unreasonable,
the arbitrator may assess all Arbitration Costs against the non-prevailing
party
and may include in the award the prevailing party's attorney's fees and expenses
in connection with any and all proceedings under this Section 11.
12. Payment
Set Aside.
To the
extent that Eagle makes a payment or payments to Tail Wind pursuant to this
Agreement, the Promissory Note or the Convertible Notes (whether is cash, Common
Stock or otherwise) or Tail Wind enforces or exercises its rights hereunder
or
thereunder, and such payment or payments or the proceeds of such enforcement
or
exercise or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to Eagle, a trustee,
receiver or any other person under any law (including, without limitation,
any
bankruptcy or insolvency law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation
or
part thereof originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such
enforcement or setoff had not occurred.
13. Confidentiality.
The
Parties agree to
maintain as confidential and not disclose the existence of, or the terms or
conditions of, this Agreement (other than to its agents or representatives
which
shall keep same confidential), except to the extent required to be disclosed
pursuant to law or legal process and except to the extent required to be
disclosed in an SEC filing, provided
however,
that
(a) Eagle agrees to timely file any and all such documents and exhibits as
may
be required under the Securities Act or the Exchange Act in connection with
the
execution of this Agreement and the transactions contemplated hereby, and (b)
Eagle shall in any event, prior to the issuance of any Settlement Shares,
publicly disclose sufficient information concerning the terms and conditions
of
this Agreement such that Tail Wind is not in possession of any material
non-public information concerning Eagle. Eagle represents, warrants agrees
that
(i) it has not provided to Tail Wind any material non-public information
concerning Eagle (other than the existence of this Agreement), and (ii) it
will
not furnish to Tail Wind any material non-public information concerning Eagle
without Tail Wind’s prior written consent.
14. Miscellaneous.
(a) Listing.
Eagle
shall use its reasonable efforts to continue the uninterrupted listing of its
Common Stock on Amex and to comply in all material respects with Eagle’s
reporting, filing and other obligations under the rules of Amex while any
Shares, Conversion Shares or either of the Convertible Notes are
outstanding.
(b) No
Conflicting Agreements.
Eagle
will not, and will not permit its subsidiaries to, take any action, enter into
any agreement or make any commitment that would conflict or interfere in any
material respect with the obligations to Tail Wind hereunder or under the
Promissory Note or Convertible Notes.
(c) Successors
and Assigns.
Neither
this Agreement nor the respective obligations of the Parties hereunder may
be
assigned by either Party without the prior written consent of the other Parties
(provided that the registration provisions contained in Section 10 may be
assigned to any transferee of the Convertible Notes or the Registrable
Securities (excluding transferees receiving Settlement Shares sold pursuant
to a
Registration Statement) without such prior consent. The terms and conditions
of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the Parties.
(d) Counterparts.
This
Agreement may be executed by facsimile and in two or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(e) Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(f) Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given only upon delivery
to
each Party to be notified by (i) personal delivery, (ii) facsimile transmission,
or (iii) internationally recognized overnight air courier, addressed to the
Party to be notified at the address as follows, or at such other address as
such
Party may designate by ten days' advance written notice given hereunder to
the
other Party:
If
to
Eagle or Link:
Eagle
Broadband, Inc.
000
Xxxxxxxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000
Attn:
Xxxx Xxxxx, Corporate Counsel
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
with
a
copy to:
Xxxxx
X.
Xxxxxxxx, Esq.
White
Field, Inc.
0000
Xxxxx Xxx., #000
Xxxxx
Xxxx, XX 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If
to
Tail Wind:
The
Tail
Wind Fund Ltd.
c/o
Tail
Wind Advisory and Management Ltd.
Xxx
Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx
XX0X 0XX Xxxxxxx
Attn: Xxxxx
Xxxxx
Telephone: 00-000-000-0000
Facsimile: 00-000-000-0000
with
a
copy to:
Xxxxx
X.
Xxxxxxx, P.C.
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
(g) Amendments
and Waivers.
Any
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Eagle and
Tail
Wind.
(h) Entire
Agreement.
This
Agreement, the Promissory Note and the Convertible Notes constitute the entire
agreement between Eagle, Link and Tail Wind with respect to the subject matter
hereof and thereof, and supersede all prior agreements and understandings,
both
oral and written, between the parties with respect to the subject matter hereof
and thereof.
(i) Further
Assurances.
The
Parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
(j) Applicable
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York without regard to principles of conflicts of
laws.
[signature
page follows]
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be executed and delivered as of the date
hereof.
EAGLE
BROADBAND, INC.
By: /s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
President
LINK
TWO COMMUNICATIONS, INC.
By:
Eagle
Broadband, Inc., sole shareholder
By:
/s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title: President
of Eagle Broadband, Inc., sole
shareholder
THE
TAIL WIND FUND LTD.
By: TAIL
WIND
ADVISORY AND
MANAGEMENT
LTD., as investment
manager
By:
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
CEO
