REGISTRATION RIGHTS AGREEMENT
Exhibit
10.24
This
Registration Rights Agreement (“Agreement”), dated as of January 12, 2007, is
made by and between EAGLE BROADBAND, INC., a Texas corporation (“Company”), and
BRITTANY CAPITAL MANAGEMENT LIMITED, a corporation organized and existing
under
the laws of the Bahamas (the “Subscriber”).
RECITALS
WHEREAS,
upon the terms and subject to the conditions of the Fourth Private Equity
Credit
Agreement (“Purchase Agreement”), between the Subscriber and the Company, the
Company has agreed to issue and sell to the Subscriber up to Five
Million dollars ($5,000,000) of
the
common stock of the Company (“Subscribed Shares”), $0.001 par value per share
(the “Common Stock”), and
WHEREAS,
to induce the Subscriber to execute and deliver the Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, “Securities Act”), and applicable state
securities laws with respect to the Subscribed Shares;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Company and the Subscriber hereby agree
as
follows:
1. Definitions.
(a) As
used
in this Agreement, the following terms shall have the following
meaning:
(i) “Potential
Material Event” means any of the following: (a) the possession by the Company of
material information not ripe for disclosure in a Registration Statement,
which
shall be evidenced by determinations in good faith by the Board of Directors
of
the Company that disclosure of such information in the Registration Statement
would be detrimental to the business and affairs of the Company, or (b) any
material engagement or activity by the Company which would, in the good faith
determination of the Board of Directors of the Company, be adversely affected
by
disclosure in a Registration Statement at such time, which determination
shall
be accompanied by a good faith determination by the Board of Directors of
the
Company that the Registration Statement would be materially misleading absent
the inclusion of such information.
(ii) “Subscription
Date” means the date of this Agreement.
(iii) “Subscriber”,
has the meaning set forth in the preamble to this Agreement.
(iv) “Register”,
“registered” and “registration” refer to a registration effected by preparing
and filing a Registration Statement or Statements in compliance with the
Securities Act and pursuant to Rule 415 under the Securities Act or any
successor rule providing for offering securities on a delayed or continuous
basis (“Rule 415”), and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange Commission
(the “SEC”).
(v) “Registrable
Securities” means the Subscribed Shares.
(vi) “Registration
Statement” means a registration statement of the Company under the Securities
Act.
(b) Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement.
2. Registration.
(a) Mandatory
Registration. The
Company shall prepare and file with the SEC, no later than ten (10) business
days after the Subscription Date, a Registration Statement on Form S-1
(“Registration Statement”), or such other appropriate Registration Statement,
pursuant to Rule 457(o) of the Securities Act, Shares of Common Stock covering
no less than 4,200,000 Shares of Common Stock. Such Registration Statement
shall
state that, in accordance with the Securities Act, it also covers such
indeterminate number of additional shares of Common Stock as may become issuable
to prevent dilution resulting from stock splits, or stock
dividends.
(b) Termination.
If the
Registration Statement covering the Registrable Securities required to be
filed
by the Company pursuant to Section 2(a) hereof is not declared effective
within
two hundred and seventy (270) days from the Subscription Date, through no
fault
of the Subscriber, then the commitment contained in the Purchase Agreement
and
in this Agreement (the “Commitment”) shall, at the option of the Subscriber,
terminate and the Subscriber shall be entitled to the sums set forth in Section
2.1(b) of the Purchase Equity Agreement.
3. Obligation
of the Company. In
connection with the registration of the Registrable Securities, the Company
shall do each of the following:
(a) Prepare
promptly, and file with the SEC within ten (10) days of the Subscription
Date, a
Registration Statement with respect to not less than the number of Registrable
Securities provided in Section 2(a) above, and, thereafter, use all diligent
efforts to cause the Registration Statement relating to the Registrable
Securities to become effective the earlier of (a) five (5) business days
after
notice from the Securities and Exchange Commission that the Registration
Statement may be declared effective, or (b) two hundred seventy (270) days
after
the Subscription Date, and keep the Registration Statement effective at all
times until the earliest of (i) the date that is one year after the completion
of the last Closing Date under the Purchase Agreement, (ii) the date when
the
Subscriber may sell all Registrable Securities under Rule 144 without volume
limitations, or (iii) the date the Subscriber no longer owns any of the
Registrable Securities (collectively, the “Registration Period”), which
Registration Statement (including any amendments or supplements, thereto
and
prospectuses contained therein) shall not contain any untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(b) Prepare
and file with the SEC such amendments (including post-effective amendments)
and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep the Registration
Statement effective at all times during the Registration Period, and, during
the
Registration Period, and to comply with the provisions of the Securities
Act
with respect to the disposition of all Registrable Securities of the Company
covered by the Registration Statement until the expiration of the Registration
Period.
(c) Permit
a
single firm of counsel designated by Subscriber to review the Registration
Statement and all amendments and supplements thereto a reasonable period
of time
(but not less than three (3) Business Day) prior to their filing with the
SEC,
and not file any document in a form to which such counsel reasonably
objects.
(d)
Notify
Subscriber and Subscriber’s legal counsel identified to the Company (which,
until further notice, shall be deemed to be Xxxxxxx & Xxxxxx, LLP, ATTN:
Xxxxxx Xxxxxxx, Esq.; “Subscriber’s
Counsel”)
(and,
in the case of (i)(A) below, not less than one (1) Business Day prior to
such
filing) and (if requested by any such person) confirm such notice in writing
no
later than one (1) Business Day following the day (i): (A) when a prospectus
or
any prospectus supplement or post-effective amendment to the Registration
Statement is proposed to be filed; (B) whenever the SEC notifies the Company
whether there will be a “review” of such Registration Statement; (C) whenever
the Company receives (or a representative of the Company receives on its
behalf)
any oral or written comments from the SEC respect of a Registration Statement
(copies or, in the case of oral comments, written or oral summaries of such
comments shall be promptly furnished by the Company to Subscriber’s Counsel);
and (D) with respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (ii) of any request by the
SEC or
any other Federal or state governmental authority for amendments or supplements
to the Registration Statement or the prospectus or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement covering any or all of the Registrable Securities
or the initiation of any proceedings for that purpose; (iv) if at any time
any
of the representations or warranties of the Company contained in any agreement
(including any securities purchase agreement) contemplated hereby ceases
to be
true and correct in all material respects; (v) 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 (vi) of the occurrence of any event that to the knowledge of
the
Company makes any statement made in the Registration Statement or the prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires any revisions to the
Registration Statement, the prospectus or other documents so that, in the
case
of the 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 the light of the circumstances under which they were made, not misleading.
In
addition, the Company shall furnish Subscriber’s Counsel with copies of all
intended written responses to the comments contemplated in clause (C) of
this
Section not later than one (1) Business Day in advance of the filing of such
responses with the SEC so that Subscriber shall have the opportunity to comment
thereon.
(e) Furnish
to Subscriber, (i) promptly after the same is prepared and publicly distributed,
filed with the SEC, or received by the Company, one (1) copy of the Registration
Statement, each preliminary prospectus and the prospectus, and each amendment
or
supplement thereto, and (ii) such number of copies of a prospectus, including
a
preliminary prospectus, and all amendments and supplements thereto and such
other documents, as the Subscriber may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by the
Subscriber;
(f) Use
all
diligent efforts to (i) register and/or qualify the Registrable Securities
covered by the Registration Statement under such other securities or blue
sky
laws of not more than ten (10) jurisdictions as the Subscriber may reasonably
request and in which significant volumes of shares of Common Stock are traded,
(ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof
at all
times during the Registration Period, (iii) take such other actions as may
be
necessary to maintain such registrations and qualification in effect at all
times during the Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in
such
jurisdictions: provided,
however,
that
the Company shall not be required in connection therewith or as a condition
thereto to (A) qualify to do business in any jurisdiction where it would
not
otherwise be required to qualify but for this Section 3(f), (B) subject itself
to general taxation in any such jurisdiction, (C) file a general consent
to
service of process in any such jurisdiction, (D) provide any undertakings
that
cause more than nominal expense or burden to the Company or (E) make any
change
in its charter or bylaws or any then existing contracts, which in each case
the
Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders;
(g) As
promptly as practicable after becoming aware of such event, notify the
Subscriber of the happening of any event of which the Company has knowledge,
as
a result of which the prospectus included in the Registration Statement,
as then
in effect, includes any untrue statement of a material fact or omits to state
a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (“Registration Default”), and uses all diligent efforts to promptly
prepare a supplement or amendment to the Registration Statement or other
appropriate filing with the SEC to correct such untrue statement or omission,
and any other necessary steps to cure the Registration Default, and deliver
a
number of copies of such supplement or amendment to the Subscriber as the
Subscriber may reasonably request. Failure to cure the Registration Default
within ten (10) business days shall result in the Company including liquidated
damages of 2% of the cost of all common stock then held by the investor for
each
thirty (30) day period or portion thereof, beginning on the date of suspension.
(h) As
promptly as practicable after becoming aware of such event, notify the
Subscriber (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by the SEC of any notice of effectiveness or
any
stop order or other suspension of the effectiveness of the Registration
Statement at the earliest possible time;
(i) Notwithstanding
the foregoing, if at any time or from time to time after the date of
effectiveness of the Registration Statement, the Company notifies Investor
in
writing of the existence of a Potential Material Event (“Blackout Notice”),
Investor shall not offer or sell any Registrable Securities, or engage in
any
other transaction involving or relating to the Registrable Securities, from
the
time of the giving of notice with respect to a Potential Material Event until
Investor receives written notice from the Company that such Potential Material
Event either has been disclosed to the public or no longer constitutes a
Potential Material Event; provided,
however,
that (a)
the Company may not so suspend the right to such holders of Registrable
Securities for more than two ten (10) day periods in the aggregate during
any
12-month period (“Blackout Period”) with at least a ten (10) Business Day
interval between such periods, during the periods the Registration Statement
is
required to be in effect, or (b) that if such Blackout Period exceeds the
permitted ten (10) day periods, the Company shall pay damages of 2% of the
cost
of all common stock then held by the Investor for each thirty (30) day period
or
portion thereof, beginning on the date of the suspension.
(j) Use
its
commercially reasonable efforts, if eligible, either to (i) cause all the
Registrable Securities covered by the Registration Statement to be listed
on a
national securities exchange and on each additional national securities exchange
on which securities of the same class or series issued by the Company are
then
listed, if any, if the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) secure designation of all the
Registrable Securities covered by the Registration Statement as a National
Association of Securities Dealers Automated Quotations System (“Nasdaq) “Small
Capitalization” within the meaning of Rule 11Aa2-1 of the SEC under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
quotation of the Registrable Securities on the Nasdaq Small Cap Market; or
if,
despite the Company’s commercially reasonable efforts to satisfy the preceding
clause (i) or (ii), the Company is unsuccessful in doing so, to secure NASD
authorization and quotation for such Registrable Securities on the
over-the-counter bulletin board and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register with the
National Association of Securities Dealers, Inc. (“NASD”) as such with respect
to such registrable securities; provided, however,
that
the Subscriber acknowledges that the Company does not currently meet the
requirements for listing on a national securities exchange or the Nasdaq
Small
Cap Market pursuant to (i) or (ii) and that nothing in this section shall
be
construed to require the Company to pursue such qualification until such
time as
the Company satisfies such requirements for a period of not less than forty-five
(45) days:
(k) Provide
an unaffiliated broker/dealer and a transfer agent for the Registrable
Securities not later than the Subscription Date of the Registration
Statement;
(l) Cooperate
with the Subscriber to facilitate the timely preparation and delivery of
certificates for the Registrable Securities to be offered pursuant to the
Registration Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts as the case may be, as
the
Subscriber may reasonably request and registration in such names as the
Subscriber may request; and, within five (5) business days after a Registration
Statement which includes Registrable Securities is ordered effective by the
SEC,
the Company shall deliver, and shall cause legal counsel selected by the
Company
to deliver, to the transfer agent for the Registrable Securities (with copies
to
the Subscriber) an appropriate instruction and opinion of such counsel, if
so
required by the Company’s transfer agent; and
(m) Take
all
other reasonable actions necessary to expedite and facilitate distribution
to
the Subscriber of the Registrable Securities pursuant to the Registration
Statement.
4. Obligations
of the Subscriber.
In
connection with the registration of the Registrable Securities, the Subscriber
shall have the following obligations;
(a) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of the Subscriber that the Subscriber shall timely furnish to
the
Company such information regarding itself, the Registrable Securities held
by
it, and the intended method of disposition of the Registrable Securities
held by
it, as shall be reasonably required to effect the registration of such
Registrable Securities and shall timely execute such documents in connection
with such registration as the Company may reasonably request.
(b) The
Subscriber by such Subscriber’s acceptance of the Registrable Securities agrees
to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of the Registration Statement
hereunder; and
(c) The
Subscriber agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(g) or 3(h) above,
the
Subscriber will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until the Subscriber receives the copies of the supplemented or amended
prospectus contemplated by Section 3(g) or 3(h) and, if so directed by the
Company, the Subscriber shall deliver to the Company (at the expense of the
Company) or destroy (and deliver to the Company a certificate of destruction)
all copies in the Subscriber’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
(d) The
Subscriber shall timely comply with its obligations under the Purchaser
Agreement.
5. Expenses
of Registration. (a)
All
reasonable expenses incurred in connection with Registrations, filings or
qualifications pursuant to Section
3,
including, without limitation, all Registration, listing, and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel
for
the Company shall be borne by the Company.
(b) Except
as
otherwise provided for in Schedule
5(b)
attached
hereto, neither the Company nor any of its subsidiaries has entered into,
as of
the date hereof, and the Company shall not on or after the date of this
Agreement enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to Investor in this Agreement or otherwise
conflicts with the provisions hereof. Except as otherwise provided for in
Schedule
5(b),
the
Company has not previously entered into any agreement granting any registration
rights with respect to any of its securities to any person. Except as otherwise
provided for in this Section
5,
and
without limiting the generality of the foregoing, without the written consent
of
Investor, the Company shall not grant to any person the right to request
the
Company to Register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights
in
full of Investor set forth herein, and are not otherwise in conflict or
inconsistent with the provisions of this Agreement and the other Transaction
Documents.
6. Indemnification. After
Registrable Securities are included in a Registration Statement under this
Agreement:
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless, the
Subscriber, the directors, if any, of such Subscriber, the officers, if any,
of
such Subscriber, each person, if any, who controls the Subscriber within
the
meaning of the Securities Act or the Exchange Act (each, an “Indemnified
Person”), against any losses, claims, damages, liabilities or expenses (joint or
several) incurred (collectively, “Claims”) to which any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar
as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
or
any post-effective amendment thereof or the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary
to make
the statements therein not misleading, (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
if
used prior to the Subscription Date of such Registration Statement, or contained
in the final prospectus (as amended or supplemented, if the Company files
any
amendment thereof or supplement thereto with the SEC) or the omission or
alleged
omission to state therein any material fact necessary to make the statements
made therein, in the light of the circumstances under which the statements
therein were made, not misleading or (iii) any violation or alleged violation
by
the Company of the Securities Act, the Exchange Act, any state securities
law or
any rule or regulation under the Securities Act, the Exchange Act or any
state
securities law (the matters in the foregoing clauses (i) through (iii) being
collectively referred to as “Violations”). The Company shall reimburse the
Subscriber, promptly as such expenses are incurred and are due and payable,
for
any reasonable legal fees or other reasonable expenses incurred by them in
connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(a) shall not (i) apply to any Claims arising
out of
or based upon a Violation which occurs in reliance upon and in conformity
with
information furnished in writing to the Company by or on behalf of any
Indemnified Person expressly for use in connection with the preparation of
the
Registration Statement or any such amendment thereof or supplement thereto,
if
such prospectus was timely made available by the Company pursuant to Section
3(b) hereof; (ii) with respect to any preliminary prospectus, inure to the
benefit of any such person from whom the person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to
the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; (iii)
be
available to the extent such Claim is based on a failure of the Subscriber
to
deliver or cause to be delivered the prospectus made available by the Company;
or (iv) apply to amounts paid in settlement of any Claim if such settlement
is
effected without the prior written consent of the Company, which consent
shall
not be unreasonably withheld. The Subscriber will indemnify the Company,
its
officers, directors and agents (including legal counsel) against any claims
arising out of or based upon a Violation which occurs in reliance upon and
in
conformity with information furnished in writing to the Company, by or on
behalf
of such Subscriber, expressly for use in connection with the preparation
of the
Registration Statement, subject to such limitations and conditions set forth
in
the previous sentence. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
or Indemnified Party.
(b) Promptly
after receipt by an Indemnified Person under this Section 6 of notice of
the
commencement of any action (including any governmental action), such Indemnified
Person shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party
a
written notice of the commencement thereof and the indemnifying party shall
have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to
assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person, as the case may be; provided,
however,
that an
Indemnified Person shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in
the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person and any other party represented by such counsel
in such proceeding. In such event, the Company shall pay for only one separate
legal counsel for the Subscriber selected by the Subscriber. The failure
to
deliver written notice to the indemnifying party within a reasonable time
of the
commencement of any such action shall not relieve such indemnifying party
of any
liability to the Indemnified Person under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend such action.
The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and
payable.
7. Contribution. To
the
extent any indemnification by an indemnifying party is prohibited or limited
by
law, the indemnifying party agrees to make the maximum contribution with
respect
to any amounts for which it would otherwise be liable under Section 6 to
the
fullest extent permitted by law; provided,
however,
that
(a) no contribution shall be made under circumstances where the maker would
not
have been liable for indemnification under the fault standards set forth
in
Section 6; (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act)
shall be entitled to contribution from any seller of Registrable Securities
who
was not guilty of such fraudulent misrepresentation; and (c) contribution
by any
seller of Registrable Securities shall be limited in amount to the net amount
of
proceeds received by such seller from the sale of such Registrable
Securities.
8. Reports
under Exchange Act.
With a
view to making available to the Investor the benefits of Rule 144 promulgated
under the Securities Act or any other similar rule or regulation of the SEC
that
may at any time permit the Investor to sell securities of the Company to
the
public without registration (“Rule 144”), the Company agrees to use its
reasonable best efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Exchange Act;
(c) furnish
to the Investor so long as the Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company that it has complied
with
the reporting requirements of Rule 144, the Securities Act and the Exchange
Act,
(ii) a copy of the most recent annual or quarterly report of the Company
and
such other reports and documents so filed by the Company solely if unavailable
by XXXXX, and (iii) such other information as may be reasonably requested
to
permit the Investors to sell such securities pursuant to Rule 144 without
registration; and
(d)
at
the
request of any Investor of Registrable Securities, give its Transfer Agent
irrevocable instructions (supported by an opinion of Company counsel, if
required or requested by the Transfer Agent) to the effect that, upon the
Transfer Agent’s receipt from such Investor of:
(i)
a
certificate (a “Rule 144 Certificate”) certifying (A) that such Investor has
held the shares of Registrable Securities which the Investor proposes to
sell
(the “Securities Being Sold”) for a period of not less than (1) year and (B) as
to such other matters as may be appropriate in accordance with Rule 144 under
the Securities Act, and
(ii)
an
opinion of counsel acceptable to the Company (for which purposes it is agreed
that the initial Investor’s Counsel shall be deemed acceptable if such opinion
is not given by Company Counsel) that, based on the Rule 144 Certificate,
Securities Being Sold may be sold pursuant to the provisions of Rule 144,
even
in the absence of an effective Registration Statement,
the
Transfer Agent is to effect the transfer of the Securities Being Sold and
issue
to the buyer(s) or transferee(s) thereof one or more stock certificates
representing the transferred Securities Being Sold without any restrictive
legend and without recording any restrictions on the transferability of such
shares on the Transfer Agent’s books and records (except to the extent any such
legend or restriction results from facts other than the identity of the
Investor, as the seller or transferor thereof, or the status, including any
relevant legends or restrictions, of the shares of the Securities Being Sold
while held by the Investor). If the Transfer Agent requires any additional
documentation at the time of the transfer, the Company shall deliver or cause
to
be delivered all such reasonable additional documentation as may be necessary
to
effectuate the issuance of an unlegended certificate.
9. Miscellaneous.
(a) Registered
Owners.
A person
or entity is deemed to be a holder of Registrable Securities whenever such
person or entity owns of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more
persons
or entities with respect to the same Registrable Securities, the Company
shall
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Securities.
(b) Rights
Cumulative; Waivers.
The
rights of each of the parties under this Agreement are cumulative. The rights
of
each of the parties hereunder shall not be capable of being waived or varied
other than by an express waiver or variation in writing. Any failure to exercise
or any delay in exercising any of such rights shall not operate as a waiver
or
variation of that or any other such right. Any defective or partial exercise
of
any of such rights shall not preclude any other or further exercise of that
or
any other such right. No act or course of conduct or negotiation on the part
of
any party shall in any way preclude such party from exercising any such right
or
constitute a suspension or any variation of any such right.
(c) Benefit;
Successors Bound.
This
Agreement and the terms, covenants, conditions, provisions, obligations,
undertakings, rights, and benefits hereof, shall be binding upon, and shall
inure to the benefit of, the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
(d) Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect
to the
subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings, warranties, covenants or representations, oral
or
written, express or implied, between them with respect to this Agreement
or the
matters described in this Agreement, except as set forth in this Agreement
and
in the other documentation relating to the transactions contemplated by this
Agreement. Any such negotiations, promises, or understandings shall not be
used
to interpret or constitute this Agreement.
(e) Amendment.
Any
provision of this Agreement may be amended and the observance thereof may
be
waived (either generally or in a particular instance and either retroactively
or
prospectively), only with the written consent of the Company and Subscriber.
Any
amendment or waiver effected in accordance with this Section 9 shall be binding
upon the Company and any subsequent Transferees.
(f) Severability.
Each
part of this Agreement is intended to be severable. In the event that any
provision of this Agreement is found by any court or other authority of
competent jurisdiction to be illegal or unenforceable, such provision shall
be
severed or modified to the extent necessary to render it enforceable and
as so
severed or modified, this Agreement shall continue in full force and
effect.
(g) Notices.
Notices
required or permitted to be given hereunder shall be in writing and shall
be
deemed to be sufficiently given when personally delivered (by hand, by courier,
by telephone line facsimile transmission, receipt confirmed, or other means)
or
sent by certified mail, return receipt requested, properly addressed and
with
proper postage pre-paid (i) if to the Company, at its executive office and
(ii)
if to the Subscriber, at the address set forth under its name in the Purchase
Agreement, with a copy to its designated attorney, or at such other address
as
each such party furnishes by notice given in accordance with this Section
9(a),
and shall be effective, when personally delivered, upon receipt and, when
so
sent by certified mail, five (5) business days after deposit with the United
States Postal Service.
(h) Governing
Law; Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New York without regard to the principles of conflicts of law.
Each
of the Company and Investor hereby submit to the exclusive jurisdiction of
the
United States Federal and state courts located in New York with respect to
any
dispute arising under this Agreement, the agreements entered into in connection
herewith or the transactions contemplated hereby or thereby.
(i) Jury
Trial Waiver. The
Company and the Investor hereby waive a trial by jury in any action, proceeding
or counterclaim brought by either of the parties hereto against the other
in
respect of any matter arising out of or in connection with the Transaction
Documents.
(j) Consents.
The
person signing this Agreement on behalf of each party hereby represents and
warrants that he has the necessary power, consent and authority to execute
and
deliver this Agreement on behalf of that party.
(k) Further
Assurances.
In
addition to the instruments and documents to be made, executed and delivered
pursuant to this Agreement, the parties hereto agree to make, execute and
deliver or cause to be made, executed and delivered, to the requesting party
such other instruments and to take such other actions as the requesting party
may reasonably require to carry out the terms of this Agreement and the
transactions contemplated hereby.
(l) Section
Headings.
The
Section headings in this Agreement are for reference purposes only and shall
not
affect in any way the meaning or interpretation of this Agreement.
(m) Construction.
Unless
the context otherwise requires, when used herein, the singular shall be deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
(n) Execution
in Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party
hereto by telephone line facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement. A facsimile
transmission of this signed Agreement shall be legal and binding on all parties
hereto.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above
written.
COMPANY:
EAGLE
BROADBAND, INC.
By:___/s/
Xxxxx Micek________________________
Name:
Xxxxx Xxxxx
Title:
President and CEO
SUBSCRIBER:
BRITTANY
CAPITAL MANAGEMENT LIMITED
By:___/s/
Xxxxx X. Herman____________________
Name:
Xxxxx X. Xxxxxx
Title:
Director
