REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”)
is
entered into as of the 18th
day of
January 2008, by and between GPS Industries, Inc., a Nevada corporation (the
“Company”),
and
Uplink Corporation, a Texas corporation (“Uplink,”
together with the Company, the “Parties”).
WHEREAS,
the
Company is acquiring from Uplink all of the assets relating to its business
of
manufacturing, selling, leasing and servicing of devices for use on golf courses
employing global positioning systems;
WHEREAS,
the
Parties have entered into an Asset Purchase Agreement, dated as of
August 31, 2007, as amended (the “Asset
Purchase Agreement”),
pursuant to which the Company is concurrently issuing to Uplink 142,083,334
shares of its common stock (the “Shares”),
of
which a maximum of 59,675,000 Shares are subject to the Company’s right to
repurchase, in accordance with the terms and conditions set forth in the Asset
Purchase Agreement (defined terms not defined herein shall have the meanings
ascribed to them in the Asset Purchase Agreement);
WHEREAS,
Uplink
and the Company desire to enter into this Agreement to provide Uplink with
certain rights relating to the registration of the Company’s securities held by
Uplink and/or the Distributees;
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements set forth herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS. The
following capitalized terms used herein have the following
meanings:
“Agreement”
means
this Agreement, as amended, restated, supplemented, or otherwise modified from
time to time.
“Asset
Purchase Agreement”
means
the Asset Purchase Agreement dated as of August 31, 2007, as amended, by and
between the Company and Uplink.
“Commission”
means
the Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common
Stock”
means
the common stock of the Company.
“Company”
is
defined in the preamble to this Agreement.
“Distributees”
is
defined in Section 6.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect
at
the time.
“Indemnified
Party”
is
defined in Section 4.3.
“Indemnifying
Party”
is
defined in Section 4.3.
“Notices”
is
defined in Section 6.2.
“Piggyback
Registration”
is
defined in Section 2.1.
“Register,”
“Registered”
and
“Registration”
mean
a
registration affected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act,
and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities”
mean
the Shares and any shares of the Company’s Common Stock issuable pursuant to the
exercise of the Warrants which may be issued pursuant to Section 2.4.1(d) of
the
Asset Purchase Agreement, including any shares of Common Stock issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of such securities. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act; (c) such securities
may
be sold under Rule 144 without regard to any volume limitations; or (d) such
securities shall have ceased to be outstanding.
“Registration
Statement”
means
a
registration statement filed by the Company with the Commission in compliance
with the Securities Act and the rules and regulations promulgated thereunder
for
a public offering and sale of Common Stock (other than a registration statement
on Form S-8, or its successors, or such other form which does not include
substantially the same information as would be required in a form for the
general registration of securities or would not be available for the Registrable
Securities).
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Shares”
mean
142,083,334 shares of Common Stock (subject to adjustment for stock splits,
recapitalization, etc.), of which up to 42% are subject to repurchase by the
Company under Section 2.4.1 of the Asset Purchase Agreement, in accordance
with
the terms and conditions set forth therein.
2
“Underwriter”
means
a
securities dealer who purchases any Registrable Securities as principal in
an
underwritten offering and not as part of such dealer’s market-making
activities.
2. REGISTRATION
RIGHTS
2.1. PIGGYBACK
RIGHTS.
If, at
any time on or after the date hereof, the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering
of
equity securities, or securities or other obligations exercisable or
exchangeable for, or convertible into, equity securities, by the Company for
its
own account or for shareholders of the Company for their account (or by the
Company and by shareholders of the Company), then the Company shall
(x) give written notice of such proposed filing to the holders of
Registrable Securities as soon as practicable but in no event less than
ten (10) days before the anticipated filing date, which notice shall
describe the amount and type of securities to be included in such offering,
the
intended method(s) of distribution, and the name of the proposed managing
Underwriter or Underwriters, if any, of the offering, and (y) offer to
Uplink in such notice the opportunity to register the sale of such number of
shares of Registrable Securities as Uplink may request in writing within
ten (10) days following receipt of such notice (a “Piggy-Back
Registration”).
The
Company shall cause such Registrable Securities to be included in such
registration, to the extent the
Company may do so, on
the
same terms and conditions as any similar securities of the Company,
without
violating the registration rights of others as in effect from time to
time, subject
to customary underwriter cutbacks applicable to all holders of registration
rights (which cutbacks shall be pro
rata
according to the shares that the holders of Registration Rights wish to sell)
and subject to obtaining any required consent of any selling stockholder(s)
to
such inclusion under such registration statement.
2.1.1. If
Uplink
proposes to distribute its securities through a Piggy-Back Registration that
involves an Underwriter or Underwriters, then Uplink shall enter into an
underwriting agreement in customary form for selling shareholders with the
Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2. CUTBACK
PURSUANT TO RULE 415.
In the
event a cutback is requested by the Commission in a written comment to the
Company pursuant to Rule 415 of the Securities Act, the number of shares of
Registrable Securities to be included in a registration statement shall, subject
to contrary advice by the Underwriter, if any, be subject to a reduction in
the
following priority; (a) first to any securities being registered on behalf
of
the Company; (b) second, as to any securities which are being registered
pursuant to any demand or mandatory registration rights; (c) next as to any
securities which have priority with respect to registrations; and (d) then
to
the Registrable Securities.
3. REGISTRATION
PROCEDURES
3.1. FILINGS;
INFORMATION.
Whenever the Company is required to effect the registration of any Registrable
Securities pursuant to Section 2
of this
Agreement, the Company shall use its best efforts to effect the registration
and
sale of such Registrable Securities in accordance with the intended method(s)
of
distribution thereof as expeditiously as practicable, and in connection with
any
such request:
3
3.1.1. COPIES.
The
Company shall, prior to filing a Registration Statement or prospectus, or any
amendment or supplement thereto, furnish without charge to Uplink and its legal
counsel, copies of such Registration Statement as proposed to be filed, each
amendment and supplement to such Registration Statement (in each case including
all exhibits thereto and documents incorporated by reference therein), the
prospectus included in such Registration Statement (including each preliminary
prospectus), and such other documents as Uplink or its legal counsel may request
in order to facilitate the disposition of the Registrable Securities owned
by
it.
3.1.2. AMENDMENTS
AND SUPPLEMENTS.
The
Company shall prepare and file with the Commission as expeditiously as possible
such amendments, including post-effective amendments, and supplements to such
Registration Statement and the prospectus used in connection therewith as may
be
necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act until all Registrable Securities and other
securities covered by such Registration Statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement, such securities have been withdrawn, or such securities
may be sold without volume restrictions pursuant to Rule 144(k) of the
Securities Act.
3.1.3. NOTIFICATION.
After
the filing of a Registration Statement, the Company shall promptly, and in
no
event more than two (2) business days after such filing, notify Uplink of
such filing, and shall further notify Uplink promptly and confirm such advice
in
writing in all events within two (2) business days of the occurrence of any
of the following: (i) when such Registration Statement becomes effective;
(ii) when any post-effective amendment to such Registration Statement
becomes effective; (iii) the issuance or threatened issuance by the
Commission of any stop order (and the Company shall take all actions required
to
prevent the entry of such stop order or to remove it if entered); and
(iv) any request by the Commission for any amendment or supplement to such
Registration Statement or any prospectus relating thereto or for additional
information or of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered
to
the purchasers of the securities covered by such Registration Statement, such
prospectus will not contain an 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 not misleading, and promptly make available to Uplink any
such supplement or amendment; except that before filing with the Commission
a
Registration Statement or prospectus or any amendment or supplement thereto,
including documents incorporated by reference, the Company shall furnish to
Uplink and its legal counsel copies of all such documents proposed to be filed
sufficiently in advance of filing to provide Uplink and its legal counsel with
a
reasonable opportunity to review such documents and comment thereon, and the
Company shall not file any Registration Statement or prospectus or amendment
or
supplement thereto, including documents incorporated by reference, to which
Uplink or its legal counsel shall object.
4
3.1.4. STATE
SECURITIES LAWS COMPLIANCE.
The
Company shall use commercially reasonable efforts to (i) register or
qualify the Registrable Securities covered by the Registration Statement under
such securities or “blue sky” laws of such jurisdictions in the United States as
Uplink (in light of its intended plan of distribution) may request and
(ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by
such
other Governmental Authorities as may be necessary by virtue of the business
and
operations of the Company and do any and all other acts and things that may
be
necessary or advisable to enable the holders of Registrable Securities included
in such Registration Statement to consummate the disposition of such Registrable
Securities in such jurisdictions; PROVIDED, HOWEVER, that the Company shall
not
be required to qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3.1.4 or
subject itself to taxation in any such jurisdiction.
3.1.5. COOPERATION.
The
principal executive officer of the Company, the principal financial officer
of
the Company, the principal accounting officer of the Company and all other
officers and members of the management of the Company shall cooperate fully
in
any offering of Registrable Securities hereunder, which cooperation shall
include, without limitation, the preparation of the Registration Statement
with
respect to such offering and all other offering materials and related documents,
and participation in meetings with Underwriters, attorneys, accountants and
potential investors.
3.1.6. COMPLIANCE
WITH LAWS; EARNINGS STATEMENT.
The
Company shall comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
days
after the end of any twelve month period (or 90 days after the end of any twelve
month period is a fiscal year) (i) commencing at the end of any fiscal quarter
in which Registrable Securities are sold to underwriters in a firm commitment
or
best efforts underwritten offering, and (ii) if not sold to underwriters in
such
an offering, commencing on the first day of the first fiscal quarter of the
Company, after the effective date of the Registration Statement, which statement
shall cover said 12-month period. Such time periods shall be adjusted as
appropriate to comply with applicable reporting periods and to satisfy the
conditions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act).
3.2. OBLIGATION
TO SUSPEND DISTRIBUTION.
Upon
receipt of any notice from the Company of the happening of any event of the
kind
described in Section 3.1.3(iv),
Uplink shall immediately discontinue disposition of such Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until Uplink receives the supplemented or amended prospectus contemplated by
Section 3.1.3(iv),
and, if so directed by the Company, Uplink will deliver to the Company all
copies, other than permanent file copies then in such holder’s possession, of
the most recent prospectus covering such Registrable Securities at the time
of
receipt of such notice.
3.3. REGISTRATION
EXPENSES.
The
Company shall bear all costs and expenses incurred in connection with any
Piggy-Back Registration, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or “blue sky” laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities);
(iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees); (v) fees and disbursements of counsel for the Company and fees
and expenses for independent certified public accountants retained by the
Company; and (vi) the fees and expenses of any special experts retained by
the Company in connection with such registration. The Company shall have no
obligation to pay any underwriting discounts or selling commissions attributable
to the Registrable Securities being sold by the holders thereof, which
underwriting discounts or selling commissions shall be borne by such holders.
5
3.4. INFORMATION.
Uplink
(and any designee of Uplink) shall provide such information as may reasonably
be
requested by the Company, or the managing Underwriter, if any, in connection
with the preparation of any Registration Statement, including amendments and
supplements thereto, in order to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 2
of this
Agreement and in connection with the Company’s obligation to comply with federal
and applicable state securities laws.
4. INDEMNIFICATION
AND CONTRIBUTION
4.1. INDEMNIFICATION
BY THE COMPANY.
The
Company shall indemnify and hold harmless Uplink and its respective officers
and
directors, from and against any expenses, losses, judgments, claims, damages
or
liabilities, whether joint or several, arising out of or based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in any
Registration Statement under which the sale of such Registrable Securities
was
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or
any
amendment or supplement thereto, or arising out of or based upon any omission
(or alleged omission) to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading, or any violation or
alleged violation by the Company of the Securities Act, the Exchange Act or
the
violation by the Company of any rule, law or regulation (including state
securities laws) relating to the offer and sale of Registrable Securities;
and
the Company shall promptly reimburse Uplink and its respective officers and
directors (as such expenses are incurred) for any legal and any other expenses
reasonably incurred by Uplink and its respective officers and directors in
connection with investigating and defending any such expense, loss, judgment,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company will
not
be liable in any such case to the extent that any such expense, loss, claim,
damage or liability arises out of or is based upon any untrue statement or
allegedly untrue statement or omission or alleged omission made in such
Registration Statement, preliminary prospectus, final prospectus, or summary
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by Uplink
expressly for use therein.
6
4.2. INDEMNIFICATION
BY UPLINK.
Uplink
will, in the event that any registration is being effected under the Securities
Act pursuant to this Agreement, indemnify and hold harmless the Company, each
of
its directors and officers and each underwriter (if any), and each other person,
if any, who controls the Company or such underwriter within the meaning of
the
Securities Act, against any losses, claims, judgments, damages or liabilities,
whether joint or several, insofar as such losses, claims, judgments, damages
or
liabilities (or actions in respect thereof) arise out of or are based upon
any
untrue statement or allegedly untrue statement of a material fact contained
in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or
any
amendment or supplement thereto, or arise out of or are based upon any omission
or the alleged omission to state a material fact required to be stated therein
or necessary to make the statement therein not misleading, if the statement
or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such selling holder expressly for use therein,
and
shall reimburse the Company, its directors and officers, and each such
controlling person for any legal or other expenses reasonably incurred by any
of
them in connection with investigation or defending any such loss, claim, damage,
liability or action. On the transfer of shares to Uplink's shareholders, the
indemnification obligations hereunder shall be several and not joint and shall
be limited to the amount of any net proceeds (after payment of any underwriting
fees, discounts, commissions or taxes) actually received by such selling
holder.
4.3. CONDUCT
OF INDEMNIFICATION PROCEEDINGS.
Promptly after receipt by any person of any notice of any loss, claim, damage
or
liability or any action in respect of which indemnity may be sought pursuant
to
Section 4.1
or
4.2,
such
person (the “Indemnified
Party”)
shall,
if a claim in respect thereof is to be made against any other person for
indemnification hereunder, notify such other person (the “Indemnifying
Party”)
in
writing of the loss, claim, judgment, damage, liability or action; PROVIDED,
HOWEVER, that the failure by the Indemnified Party to notify the Indemnifying
Party shall not relieve the Indemnifying Party from any liability which the
Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such
failure. If the Indemnified Party is seeking indemnification with respect to
any
claim or action brought against the Indemnified Party, then the Indemnifying
Party shall be entitled to participate in such claim or action, and, to the
extent that it wishes, jointly with all other Indemnifying Parties, to assume
control of the defense thereof with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action,
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that in any action in which both the
Indemnified Party and the Indemnifying Party are named as defendants, the
Indemnified Party shall have the right to employ separate counsel (but no more
than one such separate counsel) to represent the Indemnified Party and its
controlling persons who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, with the fees and expenses of such counsel to be paid by
such Indemnifying Party if counsel of such Indemnified Party reasonably believes
that a material conflict of interest is likely to exist if the same counsel
were
to represent such Indemnified Party and the Indemnifying Party. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party, which
consent shall not be unreasonably withheld, consent to entry of judgment or
effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or
proceeding.
7
4.4. CONTRIBUTION.
4.4.1. If
the
indemnification provided for in the foregoing Sections 4.1,
4.2 and
4.3
of this
Agreement is unavailable to any Indemnified Party in respect of any loss, claim,
damage, liability or action referred to herein, then each such 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 loss,
claim, damage, liability or action in such proportion as is appropriate to
reflect the relative fault of the Indemnified Parties and the Indemnifying
Parties in connection with the actions or omissions which resulted in such
loss,
claim, damage, liability or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any Indemnifying
Party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
Indemnified Party or such Indemnifying Party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
4.4.2. The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.4
were
determined by PRO RATA allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding Section.
4.4.3. The
amount paid or payable by an Indemnified Party as a result of any loss, claim,
damage, liability or action referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.4,
no
holder of Registrable Securities shall be required to contribute any amount
in
excess of the dollar amount of the net proceeds (after payment of any
underwriting fees, discounts, commissions or taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such
contribution obligation. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not also guilty of such
fraudulent misrepresentation.
5. REPORTS
UNDER THE EXCHANGE ACT
With
a
view to making available to the holders of Registrable Securities the benefits
of Rule 144 promulgated under the Securities Act, the Company agrees
to:
5.1.1. make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144; and
5.1.2. file
with
the SEC in a timely manner all reports and other documents required to the
Company under the Securities Act and the Exchange Act.
8
6. MISCELLANEOUS
6.1. ASSIGNMENT;
NO THIRD PARTY BENEFICIARIES.
This
Agreement and the rights, duties and obligations of each of the Company and
Uplink hereunder may not be assigned or delegated by the Company or Uplink,
respectively, in whole or in part. This Agreement and the provisions hereof
shall be binding upon and shall inure to the benefit of each of the Parties
and
their respective successors. This Agreement is not intended to confer any rights
or benefits on any persons that are not party hereto other than as expressly
set
forth in Section 4
and this
Section 6.1.
Notwithstanding the foregoing, it is contemplated that certain of the
Registrable Securities will be distributed to or beneficially owned by employees
of Uplink and by the shareholders of Uplink (collectively, the “Distributees”).
The
rights and obligations of Uplink hereunder shall extend to the Distributees
upon
the execution by such Distributees of a joinder agreement substantially in
the
form attached hereto as Exhibit
A.
6.2. NOTICES.
All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”)
required or permitted to be given hereunder or which are given with respect
to
this Agreement shall be in writing and shall be personally served, delivered
by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to
such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission
if
personally served or transmitted by telegram, telex or facsimile; PROVIDED,
that
if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business
day.
Notice otherwise sent as provided herein shall be deemed given on the next
business day following timely delivery of such notice to a reputable air courier
service with an order for next-day delivery.
To
the Company:
0000
000xx
Xx.,
Xxxxx 000
Xxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Attention:
Xxxxxx X. Xxxxxx, Chief Financial Officer
Tel:
(000) 000-0000
Fax:
(000) 000-0000
with
a
copy to:
TroyGould
PC
0000
Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
To
Uplink:
Xxxxxx
Xxxxxxxxxxx
Xxxxxxxx
XX, Xxxxx 00
0000
Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx X Xxxxxx, Xx., Chief Executive Officer
Tel:
(000) 000-0000
Fax:
(000) 000-0000
9
with
a
copy to:
Xxxxxx
Xxxxxxxxx Xxxxxx & Xxxxx
000
Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxxx Xxxxxx
Tel.:
(000) 000-0000
Fax:
(000) 000-0000
6.3. SEVERABILITY.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
6.4. COUNTERPARTS.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and
the
same instrument.
6.5. ENTIRE
AGREEMENT.
This
Agreement (including all agreements entered into pursuant hereto and all
certificates and instruments delivered pursuant hereto and thereto) constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties, whether oral
or written.
6.6. MODIFICATIONS
AND AMENDMENTS.
No
amendment, modification or termination of this Agreement shall be binding upon
any party unless executed in writing by such party.
6.7. TITLES
AND HEADINGS.
Titles
and headings of sections of this Agreement are for convenience only and shall
not affect the construction of any provision of this Agreement.
6.8. WAIVERS
AND EXTENSIONS.
Any
party to this Agreement may waive any right, breach or default, which such
party
has the right to waive, PROVIDED that such waiver will not be effective against
the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after
the right waived has arisen or the breach or default waived has occurred. Any
waiver may be conditional. No waiver of any breach of any agreement or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof nor of any other agreement or provision herein contained. No waiver
or
extension of time for performance of any obligations or acts shall be deemed
a
waiver or extension of the time for performance of any other obligations or
acts.
10
6.9. REMEDIES
CUMULATIVE.
In the
event that the Company fails to observe or perform any covenant or agreement
to
be observed or performed under this Agreement, Uplink may proceed to protect
and
enforce its rights by suit in equity or action at law, whether for specific
performance of any term contained in this Agreement or for an injunction against
the breach of any such term or in aid of the exercise of any power granted
in
this Agreement or to enforce any other legal or equitable right, or to take
any
one or more of such actions, without being required to post a bond. None of
the
rights, powers or remedies conferred under this Agreement shall be mutually
exclusive, and each such right, power or remedy shall be cumulative and in
addition to any other right, power or remedy, whether conferred by this
Agreement or now or hereafter available at law, in equity, by statute or
otherwise.
6.10. GOVERNING
LAW.
This
Agreement shall be governed by, interpreted under, and construed in accordance
with the internal laws of the State of Nevada applicable to agreements made
and
to be performed within the State of Nevada.
6.11. WAIVER
OF
TRIAL BY JURY.
Each
party hereby irrevocably and unconditionally waives the right to a trial by
jury
in any action, suit, counterclaim or other proceeding (whether based on
contract, tort or otherwise) arising out of, connected with or relating to
this
Agreement, the transactions contemplated hereby, or the actions of the Company
and Uplink in the negotiation, administration, performance or enforcement
hereof.
[Remainder
of Page Intentionally Left Blank.]
11
IN
WITNESS WHEREOF,
the
Parties have caused this Registration Rights Agreement to be executed and
delivered by their duly authorized representatives as of the date first written
above.
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a
Nevada corporation
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By:
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/s/
Xxxxxxx Xxxx
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Xxxxxxx
Xxxx
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Chief
Executive Officer
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UPLINK
CORPORATION,
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a
Texas corporation
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By:
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/s/
Xxxxx X. Xxxxxx, Xx.
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Xxxxx
X. Xxxxxx, Xx.
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Chief
Executive Officer
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12
Exhibit
H
Exhibit
A
Form
of Joinder Agreement
to
Intending
to be legally bound by the Registration Rights Agreement dated January__, 2008
(the “Registration
Rights Agreement”)
between Uplink Corporation and GPS Industries, Inc. (the “Company”)
the
undersigned has executed the Agreement by executing this Joinder, and an
authorized representative of the Company is authorized to attach this Joinder
to
the Registration Rights Agreement on such acceptance.
Effective
as of: ___________________ (Date)
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Name:
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Title:
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Date:
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Accepted:
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By:
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Name:
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Date:
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