REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.2
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of January 11, 2007, by and among
SmartVideo™
Technologies, Inc., a Delaware corporation, d/b/a uVuMobile™ (the “Company”),
and
the investors signatory hereto (each an “Investor”
and
collectively, the “Investors”).
This
Agreement is made pursuant to that certain General Release and Settlement
Agreement, dated January 11, 2007 between the Company and the Investors (the
“Settlement
Agreement”).
The
Company and the Investors hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Settlement Agreement shall have the meanings given such terms in the Settlement
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
“Advice”
shall
have the meaning set forth in Section 6(b).
“Agreement”
shall
have the meaning set forth in the first paragraph hereto.
“Blackout
Period”
shall
have the meaning set forth in Section 2(b).
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
the common stock, par value $0.001 of the Company.
“Company”
shall
have the meaning set forth in the first paragraph hereto.
“Effectiveness
Date”
means
April 5, 2007, provided,
that,
if the
Commission notifies the Company that the Registration Statement will be reviewed
and is subject to comment by the Commission (a “Commission
Review”),
then
the Company shall use its best efforts to have the Registration Statement
declared effective by the Commission as soon as reasonably practicable following
the Commission Review, and the Effectiveness Date shall mean the date the
Registration Statement is declared effective by the Commission.
“Effectiveness
Period”
shall
have the meaning set forth in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Filing
Date”
means
February 12, 2007.
“Holder”
or
“Holders”
means
the holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified
Party”
shall
have the meaning set forth in Section 5(c).
“Indemnifying
Party”
shall
have the meaning set forth in Section 5(c).
“Investor”
or
“Investors”
shall
have the meaning set forth in the first paragraph hereto.
“Losses”
shall
have the meaning set forth in Section 5(a).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a
deposition).
“Prospectus”
means
the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), 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 a Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the Shares, together with any securities issued or issuable upon any stock
split, dividend or other distribution, recapitalization or similar event with
respect to the foregoing.
“Registration
Statement”
means
the registration statement required to be filed hereunder, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
424”
means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Settlement
Agreement”
shall
have the meaning set forth in the second paragraph hereto.
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“Shares”
means
the 6,000,000 shares of Common Stock issued to the Investors pursuant to the
Settlement Agreement in the respective amounts as determined pursuant to the
Settlement Agreement.
“Special
Counsel”
means
Xxxx X. Xxxxx, special counsel to the Investors.
2. Registration.
(a) On
or
prior to the Filing Date, the Company shall prepare and file with the Commission
a Registration Statement on Form S-1 or any other appropriate form covering
the
resale of all Registrable Securities for an offering to be made on a continuous
basis pursuant to Rule 415; provided,
that,
the
parties agree that the Registration Statement shall contain (except if otherwise
directed by the Holders) the “Plan of Distribution” attached hereto as
Annex
A.
The
Company shall use its best efforts to cause the Registration Statement to be
declared effective under the Securities Act as promptly as possible after the
filing thereof, but in any event on or prior to the Effectiveness Date, and
shall use its best efforts to keep each Registration Statement continuously
effective under the Securities Act, subject to Section 2(b) hereof, until the
date which is five years after the date that such Registration Statement is
declared effective by the Commission or such earlier date when all Registrable
Securities covered by such Registration Statement have been sold or may be
sold
without volume restrictions pursuant to Rule 144(k) promulgated by the
Commission pursuant to the Securities Act, as determined by the counsel to
the
Company pursuant to a written opinion letter to such effect, addressed and
acceptable to the Company's transfer agent (the “Effectiveness
Period”).
(b) Notwithstanding
anything herein to the contrary, the Company shall have the right to suspend
the
use of the Registration Statement for a period of not greater than thirty (30)
consecutive days and for not more than seventy-five (75) days in any twelve
(12)
month period (“Blackout
Period”),
if,
in the good faith opinion of the Board of Directors of the Company, after
consultation with counsel, material, nonpublic information exists (including
without limitation, due to the passage of time or the existence of pending
material corporate developments) the public disclosure of which would be
necessary to cause the Registration Statement to be materially true and to
contain no material misstatements or omissions, and in each such case, where,
in
the good faith opinion of the Board of Directors, such disclosure will require
time to develop or would be reasonably likely to have a material adverse effect
on the Company. The Company must give the Investors written notice promptly
upon
knowledge that a Blackout Period (without indicating the nature of such Blackout
Period) will occur. Upon the conclusion of a Blackout Period the Company shall
provide the Investors written notice that the Registration Statement is again
available for use.
3. Registration
Procedures
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less
than two business days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company
shall
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furnish
to Special Counsel copies of all such documents proposed to be filed, other
than
exhibits to any such filing.
(b) Subject
to Section 2(b), (i) prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement and the
Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the Registrable Securities
for the Effectiveness Period; (ii) cause the related Prospectus to be amended
or
supplemented by any required Prospectus supplement, and as so supplemented
or
amended to be filed pursuant to Rule 424; (iii) respond as promptly as
reasonably possible, and in any event within twenty business days, to any
comments received from the Commission with respect to a Registration Statement
or any amendment thereto; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by a Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the Holders thereof set forth in such Registration Statement
as
so amended or in such Prospectus as so supplemented.
(c) Notify
the Holders of Registrable Securities to be sold and their Special Counsel
as
promptly as reasonably possible (and, in the case of (i)(A) below, not less
than
two business days prior to such filing) (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment to a Registration Statement
is
proposed to be filed; (B) when the Commission notifies the Company whether
there
will be a “review” of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement; and (C) with respect to
a
Registration Statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to a Registration Statement
or Prospectus or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement covering any or all of the Registrable Securities or the initiation
of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (v) of the occurrence of any event or passage of time that makes
the financial statements included in a Registration Statement ineligible for
inclusion therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires any revisions to
such
Registration Statement, Prospectus or other documents so that, in the case
of a
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) Use
its
commercially reasonable efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a Registration
Statement, or (ii) any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
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(e) Furnish
to each Holder and their Special Counsel, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to
be
incorporated therein by reference, and all exhibits to the extent requested
by
such person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(f) Promptly
deliver to each Holder and their Special Counsel, without charge, as many copies
of the Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such persons may reasonably request. The
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders in connection with the
offering and sale of the Registrable Securities covered by such Prospectus
and
any amendment or supplement thereto.
(g) Prior
to
any public offering of Registrable Securities, use its commercially reasonable
efforts to register or qualify or cooperate with the selling Holders and their
Special Counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any Holder requests in writing, to
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period and to do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a Registration Statement;
provided,
that,
the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, nor shall the Company be subject
to any material tax in any such jurisdiction where it is not then so
subject.
(h) Cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to a Registration Statement and to enable such Registrable Securities
to be in such denominations and registered in such names as any such Holders
may
reasonably request.
(i) Subject
to Section 2(b), upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment,
including a post-effective amendment, to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to
be incorporated therein by reference, and file any other required document
so
that, as thereafter delivered, neither such Registration Statement nor such
Prospectus will contain 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, in light of the circumstances under which they were made,
not misleading.
(j) The
Company may require each selling Holder to furnish to the Company (i) a
certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and the controlling person thereof, if applicable, (ii)
a
description of any material relationship between such Holder and the Company,
its predecessors or affiliates, within the past three years and (iii) any other
information required for inclusion in any document to be filed with or furnished
to the Commission.
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4. Registration
Expenses.
All
fees and expenses incident to the performance of or compliance with this
Agreement by the Company shall be borne by the Company whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The
fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
trading market on which the Common Stock is then listed for trading, and
(B) in compliance with applicable state securities or Blue Sky laws), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and of printing prospectuses if the
printing of prospectuses is reasonably requested by the holders of a majority
of
the Registrable Securities included in the Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the
Company so desires such insurance, and (vi) fees and expenses of all other
persons retained by the Company in connection with the consummation of the
transactions contemplated by this Agreement. In addition, the Company shall
be
responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and
the
fees and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange as required hereunder. Other than as
set
forth herein, the Holders shall bear each of their own expenses, including
any
underwriter discounts or fees and any accounting fees or expenses or legal
fees,
including fees of Special Counsel.
5. Indemnification.
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Holder, the officers, directors, agents and employees of
each
of them, each Person who controls any such Holder (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, reasonable costs
of
preparation and reasonable attorneys' fees) and expenses (collectively,
“Losses”),
as
incurred, arising out of or relating to any untrue or alleged untrue statement
of a material fact contained in a Registration Statement, any Prospectus or
any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus
or
supplement thereto, in light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent, that (1) such
untrue statements or omissions are based solely upon information regarding
such
Holder furnished in writing to the Company by such Holder expressly for use
therein, or to the extent that such information relates to such Holder or such
Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use
in a
Registration Statement, such Prospectus or such form of Prospectus or in any
amendment or supplement thereto (it being understood that such Holder has
approved Annex A hereto for this purpose) or (2) in the case of the suspension
of the use of the Registration
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Statement
pursuant to Section 2(b) or an occurrence of an event of the type specified
in
Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing that the
Prospectus is suspended, outdated or defective and prior to the receipt by
such
Holder of the Advice contemplated in Section 6(b). The Company shall notify
the
Holders promptly of the institution, threat or assertion of any Proceeding
of
which the Company is aware in connection with the transactions contemplated
by
this Agreement.
(b) Indemnification
by Holders.
Each
Holder shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or employees of
such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, arising solely out of or based solely
upon: (x) such Holder's failure to comply with the prospectus delivery
requirements of the Securities Act or (y) any untrue statement of a material
fact contained in any Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or arising solely out
of
or based solely upon any omission of a material fact required to be stated
therein 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 so furnished in writing by such Holder to the
Company specifically for inclusion in such Registration Statement or such
Prospectus or to the extent that (1) such untrue statements or omissions are
based solely upon information regarding such Holder furnished in writing to
the
Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder's proposed method of
distribution of Registrable Securities and was reviewed and expressly approved
in writing by such Holder expressly for use in a Registration Statement (it
being understood that such Holder has approved Annex A hereto for this purpose),
such Prospectus or such form of Prospectus or in any amendment or supplement
thereto or (2) in the case of the suspension of the use of the Registration
Statement pursuant to Section 2(b) or an occurrence of an event of the type
specified in Section 3(c)(ii)-(v), the use by such Holder of a suspended,
outdated or defective Prospectus after the Company has notified such Holder
in
writing that the Prospectus is suspended, outdated or defective and prior to
the
receipt by such Holder of the Advice contemplated in Section 6(b).
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought, asserted or threatened against any person entitled
to indemnity hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party
and
the payment of all fees and expenses incurred in connection with defense
thereof; provided,
that,
the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
except (and only) to the extent that it shall be finally determined by a court
of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially
adversely prejudiced the Indemnifying Party.
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An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to
such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified
Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
by counsel that a conflict of interest is likely to exist if the same counsel
were to represent such Indemnified Party and the Indemnifying Party (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing
that
it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense thereof
and such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of
the
Indemnified Party, effect any settlement of any pending Proceeding in respect
of
which any Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All
fees
and expenses of the Indemnified Party (including reasonable fees and expenses
to
the extent incurred in connection with investigating or preparing to defend
such
Proceeding in a manner not inconsistent with this Section) shall be paid to
the
Indemnified Party, as incurred, within fifteen business days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided,
that,
the
Indemnifying Party may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution.
If a
claim for indemnification under Section 5(a) or 5(b) is unavailable to an
Indemnified Party (by reason of public policy or otherwise), 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, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party 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 of a material
fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
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The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by
any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which
the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that
such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
6. Miscellaneous
(a) Compliance;
Agreements.
Each
Holder covenants and agrees that it will comply with the prospectus delivery
requirements of the Securities Act applicable to it in connection with sales
of
Registrable Securities pursuant to the Registration Statement. Each Holder
that
is affiliated with a registered broker-dealer further covenants and agrees
that,
at the time it acquires the Registrable Securities pursuant to the Settlement
Agreement, it will not have any agreement or understanding, directly or
indirectly, with any person to distribute any of such Registrable Securities.
Each Holder acknowledges that it may not use Registrable Shares to cover short
sales of Common Sock made prior to the date on which the Registration Statement
is declared effective by the Commission.
(b) Discontinued
Disposition.
Each
Holder agrees by its acquisition of such Registrable Securities pursuant to
the
Settlement Agreement that, upon receipt of a notice from the Company of the
suspension of the use of a Registration Statement pursuant to Section 2(b)
or
the occurrence of any event of the kind described in Section 3(c), such Holder
will forthwith discontinue disposition of such Registrable Securities under
the
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or until it is
advised in writing (the “Advice”)
by the
Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or
Registration Statement. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph.
(c) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given, unless the same shall be in writing
and
signed by the Company and the Holders of a majority in interest of the then
outstanding Registrable Securities.
(d) Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given
and
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effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number specified in this Section
prior to 6:30 p.m. (New York City time) on a business day, (ii) the business
day
after the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile number specified in this Agreement later than 6:30
p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York
City
time) on such date, (iii) the business day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth in the Settlement
Agreement or such other address as may be designated in writing hereafter,
in
the same manner, by such person.
(e) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors
and
permitted assigns of each of the parties and shall inure to the benefit of
each
Holder. Neither the Company nor any Holder may assign its rights or obligations
hereunder without the prior written consent of each Holder, with respect to
the
Company, and of the Company, with respect to a Holder.
(f) Execution
and Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
(g) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Georgia, without regard to the principles
of conflicts of law thereof. Each party agrees that all Proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated
by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the State
of
Georgia. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the State of Georgia
for
the adjudication of any dispute hereunder or in connection herewith or with
any
transaction contemplated hereby or discussed herein (including with respect
to
the enforcement of the any of this Agreement), and hereby irrevocably waives,
and agrees not to assert in any Proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such Proceeding is improper.
Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
Each party hereto hereby irrevocably waives, to the fullest extent permitted
by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby. If either party shall commence a Proceeding to enforce
any
-10-
provisions
of this Agreement, then the prevailing party in such Proceeding shall be
reimbursed by the other party for its attorneys’ fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such
Proceeding.
(h) Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(i) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(j) Independent
Nature of Investors' Obligations and Rights.
The
obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Investor pursuant
hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert with respect
to
such obligations or the transactions contemplated by this Agreement. Each
Investor shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose.
*******************
-11-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
SMARTVIDEO™
TECHNOLOGIES, INC.
(d/b/a
uVuMobile™)
By:
/s/
Xxxxxxx
X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chief Financial officer
INVESTORS:
/s/
Xxxxx
Xxxxx
XXXXX
XXXXX
/s/
Xxxxx
Xxxxx
XXXXX
XXXXX
/s/
Xxxxxx X. Xxxxx
XXXXXX
X.
XXXXX
/s/
Xxxxx
X. Xxxxxxxx
XXXXX
X.
XXXXXXXX
/s/
Xxxx
Xxxxx
XXXX
XXXXX
/s/
Xxxxxx Xxxxx
XXXXXX
XXXXX
/s/
Xxxxxxxx Xxxxxx
XXXXXXXX
XXXXXX
/s/
Xxxxxxx Xxxxxxxxx
XXXXXXX
XXXXXXXXX
/s/
Xxxxxx Xxxxxxxxx
XXXXXX
XXXXXXXXX
-12-
/s/
Xxxxx
Xxxxxx
XXXXX
XXXXXX
/s/
Xxxxx
X. Xxxxx
XXXXX
X.
XXXXX
/s/
Xxxxxx Xxxxxxxxxx
XXXXXX
XXXXXXXXXX
/s/
Xxxxxxx X. Xxxxx
XXXXXXX
X. XXXXX
/s/
Xxxxxx Xxxxxx
XXXXXX
XXXXXX
/s/
J.
Xxxx Xxxx
J.
XXXX
XXXX
/s/
Xxxxxxxxxxx Xxxxxx
XXXXXXXXXXX
XXXXXX
/s/
Xxxxxxx X. Xxxxxxx
XXXXXXX
X. XXXXXXX
/s/
Xxxx
X. Xxxxxxx
XXXX
X.
XXXXXXX
/s/
Xxxx
X. Xxxxxxx
XXXX
X.
XXXXXXX
/s/
Xxxxxx X. Xxxxxxxx
XXXXXX
X.
XXXXXXXX
/s/
Xxxxxx Xxxxxxxxx
XXXXXX
XXXXXXXXX
/s/
Xxxxx
Xxxxx
XXXXX
XXXXX
-13-
/s/
Xxxxxxxxxx Xxxxxxx
XXXXXXXXXX
XXXXXXX
/s/
Xxxxx
Xxxxxxx
XXXXX
XXXXXXX
/s/
Xxxxxx Xxxxxxxxxx
XXXXXX
XXXXXXXXXX
/s/
Xxxx
X. Xxxxx, Esquire
XXXX
X.
XXXXX, ESQUIRE
-14-
ANNEX
A
The
Selling Stockholders and any of their pledgees, donees, transferees, assignees
and successors-in-interest may, from time to time, sell any or all of their
shares of common stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be
at
fixed or negotiated prices. The Selling Stockholders may use any one or more
of
the following methods when selling shares:
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits investors;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
to
cover short sales and other hedging transactions made after the date
that
the registration statement of which this prospectus is a part is
declared
effective by the Securities and Exchange Commission
(“SEC”);
|
|
·
|
Broker-dealers
may agree with the Selling Stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act of 1933, as amended (the “Securities Act”), if available, rather than under
this prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
investor of shares, from the purchaser) in amounts to be negotiated. The Selling
Stockholders do not expect these commissions and discounts to exceed what is
customary in the types of transactions involved.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the Shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of common stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act amending the list of Selling
Stockholders to include
A-1
the
pledgees, transferees or other successors in interest as Selling Stockholders
under this prospectus.
Upon
our
being notified in writing by a Selling Stockholder that any material arrangement
has been entered into with a broker-dealer for the sale of common stock through
a block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, a supplement to this prospectus will be
filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing
(i) the name of each such Selling Stockholder and of the participating
broker-dealer(s), (ii) the number of shares involved, (iii) the price at which
such shares of common stock were sold, (iv) the commissions paid or discounts
or
concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information
set
out or incorporated by reference in this prospectus, and (vi) other facts
material to the transaction. In addition, upon our being notified in writing
by
a Selling Stockholder that a donee or pledgee intends to sell more than 500
shares of common stock, a supplement to this prospectus will be filed if then
required in accordance with applicable securities law.
The
Selling Stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this
prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, that can be attributed to the sale of
securities will be paid by the Selling Stockholders and/or the purchasers of
the
securities.
The
Selling Stockholder that is affiliated with a registered broker-dealer has
confirmed to us that, at the time it acquired the securities subject to the
registration statement of which this prospectus is a part, it did not have
any
agreement or understanding, directly or indirectly, with any person to
distribute any of such securities. The Company has advised each Selling
Stockholder that it may not use shares registered on the registration statement
of which this prospectus is a part to cover short sales of our common stock
made
prior to the date on which such registration statement was declared effective
by
the SEC.
The
Company is required to pay certain fees and expenses incident to the
registration of the shares. The Selling Stockholders shall bear each of their
own fees and expenses, including but not limited to, the fees and disbursements
of counsel to the Selling Stockholders. The Company has agreed to indemnify
the
Selling Stockholders against certain losses, claims, damages and liabilities.
The Company has agreed to use its best efforts to keep this prospectus effective
until the earlier of (i) the date that is five years after the date the
Registration Statement, of which this Prospectus is a part, is declared
effective by the SEC and (ii) the date when all securities covered by the
Registration Statement, of which this Prospectus is a part, have been sold
or
may be sold without volume restrictions pursuant to Rule 144(k) of the
Securities Act.
A-2
