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EXHIBIT 10.35
REGISTRATION RIGHTS AGREEMENT
OF
WORLD WIRELESS COMMUNICATIONS, INC.
Agreement made as of the 31st day of March, 2000, by and among World
Wireless Communications, Inc., a Nevada corporation currently having its office
and principal place of business at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxxxx Xxxx, Xxxx
00000 (the "Corporation"), and each party hereto who acquires shares of Common
Stock of the Corporation in the offering to purchase such securities made
pursuant to the Confidential Private Placement Memorandum of the Company dated
February 24, 2000 (the "Offering") (each of the last named persons shall
hereinafter be referred to individually as a "Shareholder" or "Seller" and
collectively as the "Shareholders" or "Sellers").
WHEREAS, upon the final closing of the offering of up to 13,646,000
shares of the Company's Common Stock pursuant to the Memorandum (the "Effective
Date"), as defined in the Offering, the Shareholders will collectively own up to
4,548,667 shares of Common Stock, $.001 par value per share, of the Corporation
(shares of such common stock, being referred to as the "Shares" and collectively
as the "Stock");
WHEREAS, as of the Effective Date, the Corporation and the Shareholders
desire to provide for certain registration rights for the Stock of the
Corporation or any interest therein now owned by the Shareholders;
NOW, THEREFORE, effective upon the Effective Date, in consideration of
the mutual covenants and conditions herein contained, each of the parties hereby
agrees as follows:
1. Registration Rights.
1.1 (a) The Corporation shall file a registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), on or
before December 31, 2000, covering, at a minimum, all of the shares of Common
Stock sold pursuant to the Offering. The Corporation shall give written notice
as promptly as possible of such proposed registration to each Shareholder.
(b) A registration filed pursuant to this Section
1.1(a) shall not be deemed to have been effected unless the registration
statement related thereto (i) has become effective under the Securities Act and
(ii) has remained effective for a period of at least nine months (or such
shorter period of time in which all of the
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Stock registered thereunder has actually been sold thereunder); provided,
however, that if, after any registration statement filed pursuant to Section
1.1(a) becomes effective and prior to the time the registration statement has
been effective for a period of at least nine months, such registration statement
is interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court solely due to actions or
omissions to act of the Corporation, such registration statement shall not be
considered one of the registrations applicable pursuant to Section 1.1(a).
1.2 Delay or Suspension of Registration. Notwithstanding any
other provision of this Section 1 to the contrary, if the Corporation shall
furnish to the Holder or Holders:
(a) a certificate signed by the President of the
Corporation stating that, in the good faith judgment of a majority of the
members of the entire Board of Directors of the Corporation, it would adversely
and materially affect the Corporation's ability to enter into an agreement with
respect to, or to consummate, a bona fide material transaction to which it is or
would be a party, or the Corporation has a plan to register Stock to be sold for
its own account within a 90-day period after the filing of the registration
statement under Section 1.1(a), for the Corporation to use its reasonable best
efforts to effect the registration of the Stock; or
(b) both (A) a certificate signed by the President of
the Corporation stating that, in the good faith judgment of a majority of the
members of the entire Board of Directors of the Corporation, a material fact
exists which the Corporation has a bona fide business purpose for preserving as
confidential and (B) an opinion of counsel to the Corporation to the effect that
the registration by the Corporation (following the offer or sale by the Holder
or Holders of the Stock pursuant to an effective registration statement) would
require disclosure of the material fact which is referenced in the President's
certificate required under Section 1.2(b)(A) and which, in such counsel's
opinion, is not otherwise required to be disclosed, then the Corporation's
obligations pursuant to Section 1.1 with respect to any such registration shall
be deferred or offers and sales of the Stock by the Holder or Holders shall be
suspended, as the case may be, until the earliest of: (1) the date on which, as
applicable (a) the Corporation's use of reasonable best efforts to effect the
registration of the Stock would no longer have such a material adverse effect or
(b) the material fact is disclosed to the public or ceases to be material; (2)
135 days from the date of receipt by the Holder or Holders of the materials
referred to in Section 1.2(a) and (b) above; and (3) such time as the
Corporation notifies the Holder or Holders that it has resumed use of its
reasonable best efforts to effect registration of the Stock or that offers and
sales of Stock pursuant to an effective registration statement may be resumed,
as the case may be.
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A particular material transaction to which the Corporation is or would be a
party or a particular material fact shall not give rise to more than one
deferral or suspension notice by the Corporation pursuant to the provisions of
this Section 1.2.
1.3 In connection with any registration or qualification
pursuant to the provisions of this Section 1, the Corporation shall, except as
prohibited under the blue sky or securities laws of any jurisdiction under which
a registration or qualification is being effected, pay all filing, registration
and qualification fees of the Securities and Exchange Commission, printing
expenses, fees and disbursements of legal counsel and all accounting expenses,
except that the Sellers shall bear the fees and expenses of their own legal
counsel, and the underwriting or brokerage discounts and commissions, expenses
of their brokers or underwriters and fees of the National Association of
Securities Dealers, Inc. attributable to their Stock; provided, however, that
the Corporation shall not be required in the case of any registration hereunder
to make blue sky filings in more than 15 states.
1.4 (a) In each case of registration of shares of Stock under
the Securities Act pursuant to these registration provisions, the Corporation
shall unconditionally indemnify and hold harmless each of the Sellers, each
underwriter (as defined in the Securities Act), and each person who controls any
such underwriter within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Securities Exchange Act of 1934 (the Sellers and each such
underwriter, and each such person who controls any such underwriter being
referred to for purposes of this Section 1.4, as an "Indemnified Person") from
and against any and all losses, claims, damages, liabilities and expenses
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any registration statement under which such shares
of the Stock were registered under the Securities Act, any prospectus or
preliminary prospectus contained therein or any amendment or supplement thereto
(including, in each case, any documents incorporated by reference therein), or
arising out of any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any of the Sellers or
any underwriter and furnished to the Corporation or the Registering
Shareholders, as the case may be, in writing by any of the Sellers or such
underwriter expressly for use therein; provided that the foregoing
indemnification with respect to a preliminary prospectus shall not inure to the
benefit of any underwriter (or to the benefit of any person controlling such
underwriter) from whom the person asserting any such losses, claims, damages,
liabilities or
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expenses purchased shares of the Stock to the extent such losses, claims,
damages or liabilities result from the fact that a copy of the final prospectus
had not been sent or given to such person at or prior to written confirmation of
the sale of such shares to such person.
(b) In each case of a registration of shares of the
Stock under the Securities Act pursuant to these registration provisions, each
of the Sellers participating in the registration, severally and not jointly,
shall unconditionally indemnify and hold harmless the Corporation (and its
directors and officers) each underwriter and each person, if any, who controls
the Corporation or such underwriter within the meaning of Section 15 of the
Securities Act of Section 20(a) of the Securities Exchange Act of 1934, to the
same extent as the foregoing indemnity from the Corporation to the Sellers but
only with reference to information relating to such Seller and furnished to the
Corporation by such Seller for use in the registration statement, any prospectus
or preliminary prospectus contained therein or any amendment or supplement
thereto. Each Seller will use all reasonable efforts to cause any underwriters
of shares of Stock to be sold by any of the Sellers to indemnify the Corporation
on the same terms as the Sellers agree to indemnify the Corporation or the
Registering Shareholders, as the case may be, but only with reference to
information furnished in writing by such underwriter for use in the registration
statement.
(c) In case any action or proceeding shall be brought
against or instituted which involves any Indemnified Person, such Indemnified
Person shall promptly notify the person against whom such indemnity may be
sought (the "Indemnifying Person") in writing and the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such action or proceeding, any Indemnified Person
shall have the right to obtain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person has agreed to the retention of such counsel at its expense
or (ii) the named parties to any such action or proceeding include both the
Indemnifying Person and the Indemnified Person, and the Indemnified Person has
been advised by counsel that there may be one or more defenses available to such
Indemnified Person which are different from or additional to those available to
the Indemnifying Person (in which case, if the Indemnified Person notifies the
Indemnifying Person that it wishes to employ separate counsel at the expense of
the Indemnifying Person, the Indemnifying Person shall not have the right to
assume the defense of such action or proceeding on behalf of such Indemnified
Person). It is understood that the Indemnifying Person shall not be liable for
the fees and
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expenses of more than one separate firm of attorneys at any time for all such
similarly situated Indemnified Persons. The Indemnifying Person shall not be
liable for any settlement of any action or proceeding effected without its
written consent.
(d) In the event the indemnifications provided for in
this Section 1.4 are unavailable or insufficient, then the Sellers shall each
contribute to the amount paid or payable as a result of such losses, claims,
damages, liabilities, actions and expenses in such proportion as is appropriate
to reflect (A) the relative benefits received by each Seller and (B) the
relative fault of each Seller.
(e) Notwithstanding anything in this Section 1.4 to
the contrary, the Corporation shall not be liable to any Seller for any losses,
claims, damages or liabilities arising out of or caused by (A) any reasonable
delay (1) in filing or processing any registration statement or any preliminary
or final prospectus, amendment or supplement thereto after the inclusion of such
Seller's Stock in such registration statement, or (2) in requesting such
registration statement be declared effective by the Commission and (B) the
failure of the Commission for any reason to declare effective any registration
statement.
2. MISCELLANEOUS.
2.1 Notices. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be considered as duly given on (a) the date of delivery, if delivered in person,
by nationally recognized overnight delivery service or by facsimile or (b) three
days after mailing if mailed from within the continental United States by
registered or certified mail, return receipt requested to the party entitled to
receive the same, if to the Corporation, World Wireless Communications, Inc.,
0000 Xxxxx 0000 Xxxx, Xxxx Xxxxxx Xxxx, Xxxx 00000, with a copy to Law Offices
of Xxxxxxx X. Field, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attn: Xxxxxxx X.
Field, Esq.; and if to any Shareholder, at his or its address as set forth in
the books and records of the Corporation. Any party may change his address by
giving notice to the other party stating his or its new address. Commencing on
the 10th day after the giving of such notice, such newly designated address
shall be such party's address for the purpose of all notices or other
communications required or permitted to be given pursuant to this Agreement.
2.2 Governing Law. This Agreement and the rights of the
parties hereunder shall be governed by and construed in accordance with the laws
of the State of Utah, determined without regard to its conflicts of law
principles. All parties hereto (i) agree that any legal suit, action or
proceeding arising out of or
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relating to this Agreement shall be instituted only in a federal or state court
in Salt Lake City, Utah, (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding, and (iii) irrevocably submit to the jurisdiction of any federal or
state court in Salt Lake City, Utah, in any such suit, action or proceeding, but
such consent shall not constitute a general appearance or be available to any
other person who is not a party to this Agreement. All parties hereto agree that
the mailing of any process in any suit, action or proceeding in accordance with
the notice provisions of this Agreement shall constitute personal service
thereof.
2.3 Entire Agreement; Waiver of Breach. This Agreement
constitutes the entire agreement among the parties and supersedes any prior
agreement or understanding among them with respect to the subject matter hereof,
and it may not be modified or amended in any manner other than as provided
herein; and no waiver of any breach or condition of this Agreement shall be
deemed to have occurred unless such waiver is in writing, signed by the party
against whom enforcement is sought, and no waiver shall be claimed to be a
waiver of any subsequent breach or condition of a like or different nature.
2.4 Binding Effect; Assignability. This Agreement and all the
terms and provisions hereof shall be binding upon and shall inure to the benefit
of the parties and their respective heirs, successors and permitted assigns.
This Agreement and the rights of the parties hereunder shall not be assigned
except with the written consent of all parties hereto.
2.5 Captions. Captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit or extend
the scope or intent of this Agreement or any provision hereof.
2.6 Number and Gender. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
2.7 Severability. If any provision of this Agreement shall be
held invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid or
unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable provision
were not contained herein.
2.8 Amendments. This Agreement may not be amended except in a
writing signed by all of the parties hereto.
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2.9 Compliance with Securities Laws. Commencing with the
Effective Date, the Corporation will use its best efforts to comply thereafter
with the applicable provisions of the Securities Act and the Securities Exchange
Act of 1934.
2.10 Restrictions on Resale. Notwithstanding anything
contained herein to the contrary, each Seller agrees that, after the
registration statement described in Section 1.1(a) becomes effective, such
Seller will not sell, transfer, pledge or otherwise dispose of more than 15% of
the total number of shares of Common Stock purchased pursuant to the Offering
and owned by such Seller in any one calendar month, commencing with the month in
which such registration statement becomes effective.
2.11 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. In addition, this Agreement may contain
more than one counterpart of the signature page and this Agreement may be
executed by the affixing of such signature pages executed by the parties to one
copy of the Agreement; all of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first above written.
WORLD WIRELESS COMMUNICATIONS, INC.
By: ________________________________
Xxxxx X. Xxxxxx, President
Number of Shares Purchased Name of Holder
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