Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of December 15, 2000
(this "AGREEMENT"), is made by and between MICROWARE SYSTEMS CORPORATION, an
Iowa corporation, with headquarters located at 0000 Xxxxxxxxx 000xx Xxxxxx. Xxx
Xxxxxx, Xxxx 00000, ATTN: CFO, Telephone No.: (000) 000-0000, Telecopier No.:
(000) 000-0000 (the "COMPANY"), and ELDER COURT, LLC, a Cayman Islands limited
liability company, with headquarters located at x/x Xxxxxxxxx Xxxxxxxxxx, X.X.
Xxx 000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx, Telephone: (000) 000-0000,
Facsimile: (000) 000-0000 (the "INVESTOR").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of the Private
Equity Credit Agreement, dated as of December 15, 2000, between Investor and the
Company (the "PRIVATE EQUITY CREDIT AGREEMENT"), the Company has agreed to issue
and sell to Investor shares of its Common Stock, no par value and the BLACKOUT
SHARES, as defined in Section 3(l) below (collectively, the "SHARES");
WHEREAS, the Company has agreed to issue warrants to Investor in
connection with the issuance of the Shares (the "WARRANTS"); and
WHEREAS, to induce Investor to execute and deliver the Private Equity
Credit 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, the "SECURITIES
ACT"), with respect to the Shares and the Warrant Shares (as defined below).
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
Investor hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "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 continuous basis, and the declaration or ordering of
effectiveness of such Registration Statement by the United States Securities
and Exchange Commission (the "SEC");
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(b) "REGISTRABLE SECURITIES" mean the Shares, including the Put
Shares, and the shares of Common Stock issuable upon exercise of the Warrants
(the "Warrant Shares"); and
(c) "REGISTRATION STATEMENT" means a registration statement of the
Company under the Securities Act, or an amendment to an existing registration
statement.
Terms not otherwise defined herein shall have the meanings ascribed to
them in the Private Equity Credit Agreement.
2. REGISTRATION.
(a) REGISTRATION. If the Company elects to avail itself of the
benefit of the Private Equity Credit Agreement, the Company shall prepare and
file with the SEC, as soon as possible after the Subscription Date and no later
than ninety (90) days following the Subscription Date (the "REQUIRED FILING
DATE"), a Registration Statement on Form S-3, or other available form, or an
amendment to an existing Registration Statement (the "INITIAL REGISTRATION
STATEMENT"), in either event registering for resale by Investor 200% of (i) the
Shares and Warrant Shares that Investor would hold (assuming for this
calculation only) that on the Trading Day prior to the filing the Company Put
Shares to the Investor for the Maximum Commitment Amount and (ii) the Warrant
Shares that Investor would hold pursuant to Section 2.1(b)(i) of the Private
Equity Agreement assuming (for this calculation only) that on the Trading Day
prior to the filing of such Registration Statement the Commitment Period expired
and the Company was obligated to issue the Warrant Shares under such Section
2.1(b)(i). The Registration Statement (w) shall include only the Registrable
Securities and the "Registrable Securities" as defined in that certain
Registration Rights Agreement, dated as of November 28, 2000, by and between the
Company and Investor, and (x) shall state that, in accordance with Rule 416 and
457 under the Securities Act, it covers such indeterminate number of additional
Shares and Warrant Shares as may become issuable to prevent dilution resulting
from stock splits or stock dividends. The Company will thereafter use its
reasonable best efforts to cause such Registration Statement to be declared
effective on a date (a "REQUIRED EFFECTIVE DATE"), which is no later than the
earlier of (y) five (5) Business Days after notice by the SEC that it may be
declared effective or (z) one hundred eighty (180) days after the date hereof.
(b) FAILURE TO MAINTAIN EFFECTIVENESS OF A REGISTRATION STATEMENT.
Except as provided in Section 2.7 of the Private Equity Credit Agreement, in the
event the Company fails to maintain the effectiveness of any Registration
Statement (or the underlying prospectus), including the payment of all necessary
fees, until the earlier of the time that Investor either sells the Put Shares or
eighteen (18) months from the last day of the calendar month in which the Put
Notice pursuant to which Shares were issued was given (the "Registration
Period"), and the Investor holds any Put Shares or Warrant Shares included in
the Registration Statement at any time during the period of such ineffectiveness
(an "Ineffective Period"), the Company shall pay to the Investor liquidated
damages in immediately available
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funds into an account designated by the Investor an amount equal to three
percent (3%) of the aggregate Purchase Price of Put Shares resulting from any
Put Notice, then held by the Investor for each thirty (30) calendar day period
(prorated for partial periods) of such Ineffective Period. The payments required
by this Section shall be made on the first Trading Day after the earliest to
occur of (i) the expiration of the Commitment Period, or (ii) the expiration of
an Ineffective Period (or if an Ineffective Period shall last more than thirty
(30) calendar days, the expiration of each thirty (30) calendar days of an
Ineffective Period).
(c) TERMINATION OF OBLIGATIONS. The parties agree that if the
Initial Registration Statement is not filed by the Required Filing Date or
effective on or before the Required Effective Date, the Investor shall have the
right, upon five (5) days written notice, to terminate any commitment of the
Investor under the Private Equity Credit Agreement which shall in no event
affect the Company's obligations to pay amounts and Warrants pursuant to Section
2.1(b) of the Private Equity Agreement for failing to draw the Minimum
Commitment Amount.
3. OBLIGATIONS OF THE COMPANY. In connection with the Registration
of the Registrable Securities, the Company shall, if it elects to avail itself
of the benefit of the Private Equity Credit Agreement, do each of the following:
(a) Prepare promptly, and file with the SEC by the Required
Filing Date, a Registration Statement with respect to not less than the number
of Registrable Securities provided in SECTION 2(a) above, and thereafter use its
reasonable best efforts to cause such Registration Statement relating to
Registrable Securities to become effective by the Required Effective Date and
keep the Registration Statement effective at all times during 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 light of the
circumstances in 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, 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 such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof as set forth in the Registration Statement;
(c) The Company shall permit a single firm of counsel designated
by Investor to review the Registration Statement and all amendments and
supplements thereto a reasonable period of time (but not less than three (3)
Business Days) prior to their filing with the SEC, and not file any document in
a form to which such counsel reasonably objects;
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(d) Notify Investor and Investor's legal counsel identified to
the Company (which, until further notice, shall be deemed to be Law Offices of
Xxxxxxx X. Xxxxxxxxx, Esq., ATTN: Xxxxxxx X. Xxxxxxxxx, Esq.; "INVESTOR'S
COUNSEL") (and, in the case of (i)(A) below, not less than ten (10) calendar
days 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 with respect
to a Registration Statement (copies or, in the case of oral comments, summaries
of such comments shall be promptly furnished by the Company to Investor); 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 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 underwriting 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 best knowledge of
the Company makes any statement made in the 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 the
Registration Statement, 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 light of the circumstances under which they were made, not misleading. In
addition, the Company shall furnish Investor with copies of all intended written
responses to the comments contemplated in clause (C) of this SECTION 3(d) not
later than one (1) Business Day in advance of the filing of such responses with
the SEC so that Investor shall have the opportunity to comment thereon;
(e) Furnish to Investor and Investor's Counsel: (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, two (2) copies of the Registration Statement, each
preliminary prospectus and prospectus, and each amendment or supplement thereto;
and (ii) such number of copies of a prospectus, and all amendments and
supplements thereto and such other documents, as Investor may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
Investor;
(f) As promptly as practicable after becoming aware thereof,
notify
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Investor 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 an 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 light of the circumstances under which they were made, not
misleading, and use its best efforts promptly to prepare a supplement or
amendment to the Registration Statement or other appropriate filing with the SEC
to correct such untrue statement or omission, and deliver a number of copies of
such supplement or amendment to Investor as Investor may reasonably request;
(g) As promptly as reasonably practicable after becoming aware
thereof, notify Investor 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 practicable time;
(h) Use its reasonable efforts to secure and maintain the
designation of all the Registrable Securities covered by the Registration
Statement on a Principal Market;
(i) Provide a transfer agent for the Registrable Securities not
later than the effective date of the Registration Statement;
(j) Cooperate with Investor 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 Investor may reasonably 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 Investor) such opinion of counsel as may reasonably
be required by the Transfer Agent; and
(k) Take all other reasonable actions necessary to expedite and
facilitate disposition by Investor of the Registrable Securities pursuant to the
Registration Statement.
(l) If, (a) within fifteen (15) Trading Days following any
Closing Date (as defined in the Private Equity Line Agreement), the Company
gives a Blackout Notice (as defined in Section 4(c) below) to Investor of a
Blackout Period (as defined in Section 4(c) below), and (b) the Bid Price on the
Trading Day immediately preceding such Blackout Period ("OLD BID PRICE") is
greater than the Bid Price on the first Trading Day following such Blackout
Period that Investor may sell its Registrable Securities pursuant to an
effective Registration Statement ("NEW BID PRICE"), then the Company shall issue
to Investor the number of additional shares of Registrable Securities (the
"BLACKOUT SHARES") equal to the difference between (i) the product of the number
of Put Shares held by Investor immediately prior to the Blackout Period that
were issued on the most recent Closing Date (the
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"REMAINING PUT SHARES") multiplied by the Old Bid Price, divided by the New Bid
Price, and (ii) the Remaining Put Shares. All capitalized terms in this Section
3(l) which are not otherwise defined in this Agreement, shall have the meanings
ascribed to them in the Private Equity Line Agreement.
4. OBLIGATIONS OF INVESTOR. In connection with the Registration of
the Registrable Securities, Investor 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 Investor, that Investor shall 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 execute such documents in connection with such
Registration as the Company may reasonably request. At least five (5) calendar
days prior to the first anticipated filing date of the Registration Statement,
the Company shall notify Investor of the information the Company requires from
Investor (the "REQUESTED INFORMATION"). If at least two (2) Business Days prior
to the filing date the Company has not received the Requested Information from
Investor, then the Company need not file the Registration Statement until
receiving the response of Investor and the Company shall incur no penalties for
not making such filing solely as a result of any delay due to Investor's failure
to reasonably cooperate with the Company or to provide information reasonably
required by the Company from Investor in connection with the preparation of the
Registration Statement;
(b) Investor, by accepting 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, unless
Investor has notified the Company in writing of its election to exclude all of
the Registrable Securities from the Registration Statement; and
(c) Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in SECTION 3(f) OR
3(g), above (a "Blackout Notice"), Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until Investor receives the copies of the
supplemented or amended prospectus contemplated by SECTION 3(f) OR 3(g) (a
"Blackout Period").
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; and
(b) Except as otherwise provided for in SCHEDULE 5(b) attached
hereto,
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neither the Company nor any of its subsidiaries has, 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. In the event any 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 Investor and its Affiliates and agents (each, an "INVESTOR
INDEMNIFIED PARTY"), against any losses, claims, damages, liabilities or
expenses (joint or several) incurred (collectively, "CLAIMS") to which any
Investor 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 any of the
following statements, omissions or violations in the Registration Statement, or
any post-effective amendment thereof, or any prospectus included therein: (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
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 light of the circumstances under which the statements therein
were made, not misleading; or (iii) any material violation or alleged material
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, "VIOLATIONS"). Subject to SECTION 6(b), the
Company shall reimburse Investor, promptly as such expenses are incurred and are
due and payable, for any legal fees or other reasonable expenses incurred by
them in connection with 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 a Claim 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 Investor Indemnified
Party expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (II) be available
to the extent such Claim is based on a failure of Investor to deliver or cause
to be delivered the prospectus made available
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by the Company; or (III) 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. Investor will indemnify the
Company and its Affiliates and agents, (each, a "COMPANY INDEMNIFIED PARTY")
against any losses, claims, damages, liabilities or expenses (joint or several)
incurred (collectively, "CLAIMS") to which any Investor 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 a Violation which occurs in reliance upon and in
conformity with information furnished in writing to the Company, by or on behalf
of Investor, expressly for use in connection with the preparation of the
Registration Statement, subject to such limitations and conditions as are
applicable to the Indemnification provided by the Company to this SECTION 6.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company Indemnified Party.
(b) Promptly after receipt by an indemnified party under this
SECTION 6 of notice of the commencement of any action (including any
governmental action), such indemnified party 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.
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
thereof, subject to the provisions herein stated and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this SECTION 6 for any legal or other reasonable out-of-pocket
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation, unless the
indemnifying party shall not pursue the action to its final conclusion. The
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and reasonable
out-of-pocket expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of the
action with counsel reasonably satisfactory to the indemnified party. 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 party 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
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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 SECURITIES ACT AND EXCHANGE ACT. With a view to
making available to 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 Investor to sell securities of the Company to the public without
Registration ("RULE 144"), the Company agrees 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 Securities Act and the Exchange Act;
and
(c) furnish to Investor so long as Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company that
it has complied with the reporting requirements of the Securities Act and the
Exchange Act and (ii) such other information as may be reasonably requested to
permit Investor to sell such securities pursuant to Rule 144 without
Registration.
(d) The Company will, at the request of any holder of
Registrable Securities, upon receipt from such holder of a certificate
certifying (i) that such holder has held such Registrable Securities for a
period of not less than one (1) year, (ii) that such holder has not been an
affiliate (as defined in Rule 144) of the company for more than the ninety (90)
preceding days, and (iii) as to such other matters as may be appropriate in
accordance with such Rule, remove from the stock certificate representing such
Registrable Securities that portion of any restrictive legend which relates to
the registration provisions of the Securities Act, provided, however, counsel to
Investor may provide such instructions and opinion to the transfer agent
regarding the removal of the restrictive legend.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The right to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by Investor to any permitted transferee of the
Registrable Securities pursuant to the Private Equity Credit Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS. 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
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and Investor. Any amendment or waiver effected in accordance with this Section
10 shall be binding upon Investor and the Company.
11. MISCELLANEOUS.
(a) Notices required or permitted to be given hereunder shall be
given in the manner contemplated by the Private Equity Credit Agreement.
(b) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(c) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California for contracts to be wholly
performed in such state and without giving effect to the principles thereof
regarding the conflict of laws. Each of the parties consents to the jurisdiction
of the federal courts whose districts encompass any part of the City of Los
Angeles in connection with any dispute arising under this Agreement and hereby
waives, to the maximum extent permitted by law, any objection, including any
objection based on FORUM NON COVENIENS, to the bringing of any such proceeding
in such jurisdictions. In the event of any dispute, the prevailing party shall
be entitled to recover its reasonable attorneys' fees.
(d) If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
(e) This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
(f) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
(h) This Agreement may be executed in one 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.
(i) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. There are no
restrictions, promises, warranties or
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undertakings, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof. This Agreement may be amended only by an
instrument in writing signed by the party to be charged with enforcement
thereof.
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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.
MICROWARE SYSTEMS CORPORATION, an Iowa corporation
By:
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Name:
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Title:
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ELDER COURT, LLC, a Cayman Islands limited liability
company
By:
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Name:
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Title:
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