REGISTRATION RIGHTS AGREEMENT
Exhibit
10.5
This
REGISTRATION
RIGHTS AGREEMENT
(this
“Agreement”)
is
made as of the date of the signature of the Company set forth on the signature
pages hereto, by and among
MDU COMMUNICATIONS INTERNATIONAL, INC., a
Delaware corporation, with its principal offices at 00-X Xxxxxxxx Xxx, Xxxxxx,
Xxx Xxxxxx 00000 (including its wholly-owned subsidiary, MDU Communications
(USA) Inc., as more fully described below, the “Company”),
and
each person identified as a Holder on the signature pages hereto (collectively,
the “Holders”).
All
terms used herein but not defined herein shall have the meaning given to them
in
the Purchase Agreement (as defined below).
WITNESSETH:
WHEREAS,
the Company and the Holders have entered into a Warrant to Purchase Common
Stock
dated as of September 11, 2006, providing, among other things, for the right
of
the Holders to acquire for each (1) warrant (1) share (each a “Share,”
collectively, the “Shares”)
of
the Company’s common stock, par value $0.001 per share (the “Common
Stock”),
at an
exercise price of $___ per share (each a “Warrant,”
collectively the “Warrants”);
and
WHEREAS,
it is a condition to the closing of the Loan and Security Agreement between
Holder and MDU Communications (USA) Inc. dated as of even date herewith that
the
Company execute and deliver this Agreement and provide for the registration
rights set forth herein.
NOW,
THEREFORE, the parties, in consideration of the mutual covenants and agreements
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, hereby agree as
follows:
SECTION
1
DEFINITIONS
For
purposes of this Agreement the following terms shall be defined as
follows:
The
term
the “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
The
terms
“register,” “registered”
and
“registration”
refer to
a registration effected by preparing and filing a registration statement or
statements or similar documents 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 (“Rule
415”),
and
the declaration or ordering of effectiveness of such registration statement
or
document by the SEC.
The
term
“Registrable
Securities”
means
the Warrants and any securities issued or issuable in respect thereof in
connection with, among other things, a dividend, distribution or split,
recapitalization, merger, consolidation, any reorganization or other
distribution with respect to or in exchange for or in replacement of the and
the
shares of Common Stock issued upon the exercise of the Warrants (the
“Warrant
Shares”).
The
term
“Registration
Statement”
means
any registration statement or comparable document of the Company under the
Securities Act through which a public sale or distribution of the Company's
securities may be registered (except a form exclusively for the sale or
distribution of securities in connection with an employee or consultant stock
option or purchase plan or for use exclusively in connection with a business
combination), the prospectus contained therein and all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
The
term
the “Securities
Act”
means
the Securities Act of 1933, as amended.
SECTION
2
REGISTRATION
RIGHTS
2.1 Shelf
Registration.
(a) Upon
demand by Holder of the Warrant, the
Company shall prepare and file a Registration Statement on a form that shall
(A)
be available for the sale of the Registrable Securities by the selling Holders
thereof and (B) comply as to form with the requirements of the applicable form
on which such Registration Statement is filed and include all financial
statements required by the SEC to be filed therewith (“Shelf
Registration”)
with
the SEC to provide for the offer and sale of the Registrable Securities within
_____________ days of such demand and shall cause the Shelf Registration to
become effective under the Act no later than the earlier of (i) ________ days
from the date of such demand, and (ii) the sixth (6th)
business day following the date on which the Company is notified by the SEC
that
such Shelf Registration will not be reviewed or is no longer subject to further
review and comments (“Effective
Date”).
(b) In
the
event the Shelf Registration is not declared effective by the Effective Date,
the Company shall promptly, but no later than ten (10) days from the Effective
Date, issue to the Holder, any designee or assignee thereof, or each then holder
of the Registrable Securities (“Holder”)
a
number of shares of Common Stock equal to four percent (4%) of the sum of the
number of Common Stock issuable upon exercise of the Warrants issued to the
Holder. In addition, for each thirty (30) day period (each such period
consisting of thirty consecutive days) after the Effective Date that the Shelf
Registration has not been declared effective (each a “Default
Period”),
the
Company shall be obligated to issue to the Holder (or any assignee thereof)
a
number of shares of Common Stock equal to two percent (2%) of the sum of the
number of (x) shares of Common Stock issuable upon exercise of the Warrants
issued to the Holder and (y) the number of Liquidated Damages Shares (as defined
below) issuable pursuant to this Section 2.1(b) prior to the date of
determination. Any issuances of Common Stock the Company is obligated to make
for subsequent Default Periods shall be made no later than ten (10) days from
the last day of such Default Period. Each share of Common Stock issued pursuant
to this Section 2.1(b) shall be hereinafter referred to as a “Liquidated
Damages Share.”
(c) Notwithstanding
the foregoing, the Company’s obligation to issue the Liquidated Damages Shares
in connection therewith shall cease one (1) year from the date hereof so long
as
the Company has remained current, and remains current for at least one (1)
contiguous year thereafter, with respect to all of its filings required under
to
the Exchange Act (the “Filings”).
Further, should the Company be not be listed on any securities exchange at
the
time of the demand, it shall incur no liability for Liquidated Damages Shares.
(d) The
Holder may demand the Company register such Registrable Securities at any time
and up to three times in total, provided however that all such costs incurred
in
connection with such Registration shall be borne as follows: (i) the expenses
for the first demand shall be borne by the Company except to the extent such
demand occurs within one (1) year from the date hereof , in which case the
expenses shall be borne by the Holder; (ii) the expenses for the demands after
the first year following the date hereof shall be borne by the Holder except
to
the extent Holder bore the expenses for a demand in the first year following
the
date hereof, in which case Company shall bear the cost for the second demand
and
Holder shall bear the cost for the third demand.
2.2 Piggyback
Registration.
From and
after the Closing Date and until such time as the Registrable Securities are
freely saleable under Rule 144 promulgated under the Securities Act without
volume limitations, if the Company shall determine to proceed with the
preparation and filing of a Registration Statement in connection with the
proposed offer and sale of any of its securities by it or any of its security
holders (other than a registration statement on Form X-0, X-0 or other
limited purpose form), the Company will give written notice of its determination
to all record holders of the Registrable Securities. Upon receipt of a written
request from any such holder within thirty (30) days after receipt of any such
notice from the Company, the Company will, except as herein provided, cause
all
the Registrable Securities owned by such holders to be included in such
Registration Statement, all to the extent requisite to permit the sale or other
disposition by the prospective seller or sellers of the Registrable Securities
to be so registered. If any registration pursuant to this Section 2.2 shall
be underwritten in whole or in part, the Company may require that the
Registrable Securities requested for inclusion pursuant to this Section 2.2
be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. The obligation of
the
Company under this Section 2.2 shall be unlimited as to the number of
Registration Statements to which it applies.
2
SECTION
3
REGISTRATION
PROCEDURES
If
and
whenever the Company is required by the provisions of Sections 2.1 or 2.2
to effect the registration of Registrable Securities under the Securities Act,
the Company will:
3.1 use
its
best efforts to cause such a Registration Statement to become and remain
effective for a period of two (2) years; provided,
however,
that
any Registration Statement filed pursuant to Section 2.2 may be kept effective
for such lesser period of time until which all Registrable Securities included
thereunder are freely salable (without restriction, except with regard to
Registrable Securities held by persons deemed to be “affiliates” of the Company)
under Rule 144, if applicable.
3.2 prepare
and file with the SEC such amendments to such Registration Statement and
supplements to the prospectus contained therein as may be necessary to keep
such
Registration Statement effective for the period of time described in paragraph
(a) above.
3.3 furnish
to the security holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies
of such Registration Statement, preliminary prospectus, final prospectus and
such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
3.4 use
its
best efforts to register or qualify the securities covered by the Registration
Statement under such state securities or blue sky laws of such jurisdictions
as
such participating holders may reasonably request in writing within twenty
(20)
days following the original filing of such Registration Statement, except that
the Company shall not for any purpose be required to execute a general consent
to service of process or to qualify to do business as a foreign corporation
in
any jurisdiction wherein it is not so qualified;
3.5 in
the
event that a registration involves an underwritten offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter or such offering;
3.6 notify
the security holders participating in such registration, promptly after it
shall
receive notice thereof, of the time when the Registration Statement has become
effective or a supplement to any prospectus forming a part of the Registration
Statement has been filed;
3.7 notify
such holders promptly of any request by the SEC for the amending or
supplementing the Registration Statement or prospectus or for additional
information;
3.8 notify
such holders promptly of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement or prospectus would be
appropriate;
3.9 prepare
and file with the SEC, promptly upon the request of any such holders, any
amendments or supplements to the Registration Statement or prospectus which,
in
the opinion of counsel for such holders (and concurred in by counsel for the
Company), is required under the Securities Act or the rules and regulations
thereunder in connection with the distribution of the Registrable
Shares;
3
3.10 prepare
and promptly file with the SEC and promptly notify such holders of the filing
of
such amendment or supplement to the Registration Statement or prospectus as
may
be necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under the
Securities Act, any event shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
3.11 advise
such holders, promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of the Registration Statement or the initiation or threatening
of
any proceeding for that purpose and promptly use its best efforts to prevent
the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued;
3.12 at
the
request of holders of a majority of the Registrable Securities included in
the
Registration Statement, furnish to the underwriters on the date that the
Registrable Securities are delivered to underwriters for sale in connection
with
a registration pursuant to this Agreement (i) an opinion, dated such date,
of
the counsel representing the Company for the purposes of such registration,
in
form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters and (ii) a letter dated such
date, from the independent certified accountants of the Company, in form an
substance as is customarily given by independent certified public accountants
to
underwriters in an underwritten public offering, addressed to the
underwriters;
3.13 make
available for inspection by any underwriters participating in an offering
covering Registrable Securities, and the counsel, accountants or other agents
retained by any such underwriter, all pertinent financial and other records,
corporate documents, and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such underwriters in connection with such offering;
3.14 if
the
Common Stock is then listed on a national securities exchange, cause the
Registrable Securities to be listed on such exchange, or if reported on NASDAQ,
to be reported on NASDAQ;
3.15 provide
a
transfer agent and registrar, which may be a single entity, for the Registrable
Securities not later than the effective date of the Registration Statement
in
which Registrable Securities are included; and
3.17 comply
with all applicable rules and regulations of the Commission and make generally
available to its security holders earning statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder no later than
forty five (45) days after the end of any twelve (12) month period (or ninety
(90) days after the end of any twelve (12) month period if such period is a
fiscal year) commencing on the first day of the first fiscal quarter of the
Company, after the effective date of the Shelf Registration Statement, which
statements shall cover said twelve (12) month period.
SECTION
4
EXPENSES
With
respect to each inclusion of Registrable Securities in a Registration Statement
pursuant to Sections 2.1 and 2.2 hereof, the fees, costs and expenses of
registration to be borne by the Company (except as set forth in Section 2.1(c)
shall include, all registration, filing, and NASD fees; printing expenses,
fees
and disbursements of counsel and accountants for the Company; all legal fees
and
disbursements and other expenses of complying with state securities or blue
sky
laws of any jurisdictions in which the securities to be offered are to be
registered and qualified. Fees and disbursements of counsel and accountants
for
the selling security holders shall be borne by the selling security holders,
and
security holders participating in such registration shall bear their pro rata
share of the underwriting discounts and commissions and transfer
taxes.
4
SECTION
5
CERTAIN
OBLIGATIONS OF HOLDERS
Each
Holder agrees that, upon receipt of any notice from the Company of the happening
of (i) any event of the kind described in 3.6, 3.7, 3.8, 3.10 or 3.11 hereof,
or
(ii) a determination by the Company’s Board of Directors that it is advisable to
suspend use of the prospectus for a discrete period of time due to pending
corporate developments such as negotiation of a material transaction which
the
Company, in its sole discretion after consultation with legal counsel,
determines it would be obligated to disclose in the Shelf Registration, which
disclosure the Company believes would be premature or otherwise inadvisable
at
such time or would have a material adverse effect on the Company and its
stockholders, such Holder will forthwith discontinue disposition of such
Registrable Securities covered by the Shelf Registration or prospectus until
such Holder’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.2 hereof, or until such Holder is advised in writing
by the Company that the use of the applicable prospectus may be resumed, and
has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such prospectus. The period of
time
in which the use of a prospectus or Shelf Registration is so suspended shall
be
referred to as a “Black-Out
Period.”
The
Company agrees to so advise such Holder promptly of the commencement and
termination of any such Black-Out Period, and the Holder agrees to keep the
fact
of such Black-Out Period confidential. The Company shall not impose a Black-Out
Period under this Section 5 for more than thirty (30) consecutive days and
not
more than twice in any given twelve (12) month period; provided,
that at
least ninety (90) days must pass between Black-Out Periods. Notwithstanding
the
foregoing, the Company may suspend the effectiveness of any Shelf Registration
if the Commission rules and regulations prohibit the Company from maintaining
the effectiveness of a Shelf Registration because its financial statements
are
stale at a time when its fiscal year has ended or it has made an acquisition
reportable under Item 2 of Form 8-K or any other similar situation until the
earliest time in which the SEC would allow the Company to re-effect a Shelf
Registration (provided that the Company shall use its reasonable best efforts
to
cure any such situation as soon as possible so that the Shelf Registration
can
be made effective at the earliest possible time).
SECTION
6
INDEMNIFICATION.
6.1 The
Company will indemnify and hold harmless each holder of Registrable Securities
which are included in a Registration Statement pursuant to the provisions of
Sections 2.1 and 2.2 hereof, such Holder’s directors and officers, and any
underwriter (as defined in the Securities Act) for such holder and each person,
if any, who controls such holder or such underwriter within the meaning of
the
Securities Act, from and against, and will reimburse such holder and each such
underwriter and controlling person with respect to, any and all loss, damage,
liability, cost and expense to which such holder or any such underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused
by
any untrue statement or alleged untrue statement of any material fact contained
in a Registration Statement, any prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein 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; provided, however, that the Company will not
be
liable in any such case to the extent that any such loss, damage, liability,
cost or expenses arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
written information furnished by such holder, such underwriter or such
controlling person specifically for use in the preparation thereof.
5
6.2 Each
holder of Registrable Securities included in a registration pursuant to the
provisions of Sections 2.1 and 2.2 hereof will indemnify and hold harmless
the Company, its directors and officers, any controlling person and any
underwriter from and against, and will reimburse the Company, its directors
and
officers, any controlling person and any underwriter with respect to, any and
all loss, damage, liability, cost or expense to which the Company or any
controlling person and/or any underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, damages, liabilities,
costs
or expenses are caused by any untrue statement or alleged untrue statement
of
any material fact contained in the Registration Statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of or
are
based upon the omission or alleged omission to state therein 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, in each
case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance upon
and in strict conformity with written information furnished by or on behalf
of
such holder specifically for use in the preparation thereof and provided
further, that the maximum amount that may be recovered from any holder shall
be
limited to the net amount of proceeds received by such holder from the sale
of
the Registrable Securities.
6.3 Promptly
after receipt by an indemnified party under this Section 6 of a notice of the
commencement of any action (including any governmental action) such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party hereunder, deliver to the indemnifying party a written notice of the
commencement thereof. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 6 only to the extent prejudicial to its ability to defend such
action, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to an indemnified party
otherwise than under this Agreement. 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 parties; provided,
however,
that an
indemnified party 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 determination of counsel for the indemnifying party, representation
of such indemnified party by the counsel obtained by the indemnifying party
would be inappropriate due to actual or potential conflicting interests between
such indemnified party and any other party represented by such counsel in such
proceeding. 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 pursuant to the provisions of paragraph
6.1 or 6.2 above for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, unless (i) the indemnified party shall have
employed counsel in accordance with the provisions of the preceding sentence,
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after the notice of the commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying
party.
SECTION
7
ADDITIONAL
RIGHTS AND OBLIGATIONS
7.1 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 hereof
to
the extent permitted by law, provided that (i) no contribution shall be made
under circumstances where the maker would not have been liable for
indemnification pursuant to the provisions of Section 6 hereof, (ii) 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 (iii) contribution by any seller of
Registrable Securities shall be limited to the net amount of proceeds received
by such seller from the sale of such Registrable Securities.
6
7.2 Assignable
Rights.
The
rights with respect to the Registrable Securities under this Agreement shall,
in
addition to being for the benefit of the parties hereto, be for the benefit
of
and enforceable by a transferee of the Registrable Securities. The obligations
of the Company contained in this Agreement shall be binding upon any successor
to the Company and continue to be in effect with respect to any securities
issued by any successor to the Company in substitution or exchange for any
Registrable Securities.
7.3 Reports
Under Securities Exchange Act.
With a
view to making available to the holders of Registrable Securities the benefits
of SEC Rule 144 and any other rule or regulation of the SEC that may at any
time
permit the holders of the Registrable Securities to sell securities of the
Parent to the public without registration, the Company agrees to:
(a) make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144, at all times;
(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 each holder of Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the reporting
requirements of SEC 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 and (iii) such other information
as may be reasonably requested in availing the holders of any Registrable
Securities of any rule or regulation of the SEC which permits the selling of
any
such securities without registration.
SECTION
8
MISCELLANEOUS
PROVISIONS
8.1 Waivers
and Amendments.
Except
as expressly provided herein, neither this Agreement nor any term hereof may
be
amended or waived except pursuant to a written instrument executed by the
Company and the Holders that hold at least two-thirds (66⅔%) of the Registrable
Securities held by all Holders. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon all Holders and the Company. The
failure of any party to exercise any right or remedy under this Agreement or
otherwise, or the delay by any party in exercising such right or remedy, shall
not operate as a waiver thereof.
8.2 Notices.
Any
notice, demand or other communication which any party hereto may be required,
or
may elect, to give to anyone interested hereunder shall be sufficiently given
if
delivered via fax, personally or by nationally recognized overnight courier
service or sent by registered or certified mail, return receipt requested,
addressed to such address as may be given herein; provided, however, that
notices with respect to Sections 3.6, 3.7 and 3.8 hereof may be delivered via
email; and, except as otherwise noted herein, must be addressed as
follows:
if
to the
Company, to:
MDU
Communications International, Inc.
00-X
Xxxxxxxx Xxx
Xxxxxx,
Xxx Xxxxxx 00000
Attn:
Xxxxxxx Xxxxxx
Facsimile:
(000) 000-0000
if
to any
Holder, to the address shown on such Holder’s signature page hereto, marked for
attention as there indicated,
7
or
to
such other address as the party to whom notice is to be given may have furnished
to the other parties in writing in accordance with the provisions of this
Section 8.2. Any such notice or communication will be deemed to have been
received: (A) in the case of facsimile, email or personal delivery, on the
date
of such delivery; (B) in the case of nationally-recognized overnight courier,
on
the next business day after the date sent; and (C) if by registered or certified
mail, on the third business day following the date postmarked.
8.3 Descriptive
Headings and References.
The
descriptive headings herein have been inserted for convenience only and are
not
deemed to limit or otherwise affect the construction of any provisions
hereof.
8.4 Applicable
Law; Jurisdiction.
This
Agreement shall be governed by and construed under the internal laws of the
State of New York without regard to conflict of law rules. The parties hereby
submit to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the Federal courts located in the Southern
District of New York, with respect to any action or legal proceeding commenced
by either party with respect to this Agreement or the Registrable Securities.
Each party irrevocably waives any objection it now has or hereafter may have
respecting the venue of any such action or proceeding or the inconvenience
of
such forum, and each party consents to the service of process in any such action
or proceeding in the manner set forth for the delivery of notices herein.
8.5 Waiver
of Jury Trial.
The
parties hereby waive their rights to a trial by jury in any action or proceeding
involving any matter arising out of or relating to this Agreement or to the
Registrable Securities.
8.6 Counterparts.
This
Agreement may by executed through the use of separate signature pages or in
any
number of counterparts, and each of such counterparts shall, for all purposes,
constitute one agreement binding on all the parties, notwithstanding that all
parties are not signatories to the same counterpart.
8.7 Entire
Agreement.
This
instrument contains the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated or referred
to
herein.
8.8 Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be deemed prohibited or invalid under such applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, and such prohibition or invalidity shall not invalidate the
remainder of such provision or the other provisions of this
Agreement.
8.9 Third
Party Beneficiaries.
Except
as expressly provided herein, no provision of this Agreement is intended to
confer any rights, benefits or remedies upon any person other than the parties
hereto and their respective successors and assigns.
8.10 Remedies.
The
Holders, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, shall be entitled to specific performance of
their rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by any Holder by reason
of a breach by it of the provisions of this Agreement and hereby agrees to
waive
in any action for specific performance the defense that a remedy at law would
be
adequate.
8.11 Further
Assurances.
Each of
the parties hereto shall execute and deliver such documents and perform such
further acts (including, without limitation, obtaining any consents, exemptions,
authorizations or other actions by, or giving any notices to, or making any
filings with, any governmental authority or any other Person) as may be
reasonably required or desirable to carry out or to perform the provisions
of
this Agreement.
8
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement on the day and year first set forth above.
| MDU COMMUNICATIONS INTERNATIONAL, INC. | ||
| |
|
|
| Date: ______________ | By: | |
|
Xxxxxxx Xxxxxx |
||
| President and Chief Executive Officer | ||
Attest:
By:
______________________________
Name:
____________________________
Title:
_____________________________
[HOLDER
SIGNATURE PAGES FOLLOW]
9
HOLDER
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
The
undersigned Holder hereby executes this counterpart signature page to the
Registration Rights Agreement, dated as of September 11, 2006 by and among
MDU
COMMUNICATIONS INTERNATIONAL, INC. and certain Holders, including the
undersigned.
| Holder: |
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