REGISTRATION RIGHTS AGREEMENT
EXHIBIT
4.3
This
Registration Rights Agreement (this “Agreement”)
is
made and entered into as of September 16, 2004, by and among Mobilepro Corp.,
a
Delaware corporation (the “Company”),
and
the persons and entities listed on Exhibit A
attached
hereto (the “Noteholders”)
and
the persons and entities listed on Exhibit
B
attached
hereto (the “New
Stockholders”).
A. Pursuant
to that certain Agreement and Plan of Merger (the “Merger
Agreement”)
dated
of even date herewith, by and among the Company, The River Internet Access
Company, an Arizona corporation and
the
Stockholders identified therein (the “Merger”),
the
Stockholders have been issued, as part of the Merger Consideration (as such
term
is defined in the Merger Agreement), certain Convertible Promissory Notes
(the
“Notes”).
B. Pursuant
to Section 4.5(d) of the Merger Agreement, as part of any increase in the
Merger
Consideration, the Company may issue shares of the Company’s Common Stock to the
New Stockholders.
C. Pursuant
to the Merger Agreement, the Company is required to provide the Noteholders
and
the New Stockholders certain registration rights with respect to the shares
of
the Company’s Common Stock issuable upon conversion of the Notes or issued
pursuant to Section 4.5(d) of the Merger Agreement.
1. REGISTRATION
RIGHTS.
1.1 Definitions.
For
purposes of this Section 1:
(a) Common
Stock.
The
term “Common
Stock”
means
the Company’s common stock, $0.001 par value per share.
(b) Registration.
The
terms “register,”“registration”
and
“registered”
refer
to a registration effected by preparing and filing a registration statement
in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement.
(c) Registrable
Securities.
The
term “Registrable
Securities”
means
the
Common Stock issuable upon conversion of the Notes and Common Stock issued
pursuant to Section 4.5(d) Merger Agreement.
(d) Registrable
Securities Then Outstanding.
The
number of shares of “Registrable
Securities then outstanding”
shall
mean the number of shares of Common Stock which are Registrable Securities
that
are then (1) issued and outstanding or (2) issuable pursuant
to the
exercise or conversion of then outstanding and then exercisable and qualifying
options, warrants or convertible securities.
(e) Holder.
The
term “Holder”
means
any person owning of record Registrable Securities or any assignee of record
of
such Registrable Securities to whom rights set forth herein have been duly
assigned in accordance with this Agreement; provided,
however,
that
for purposes of this Agreement, a record holder of the Notes convertible
into
such Registrable Securities shall be deemed to be the Holder of such Registrable
Securities; provided,
further,
that
the Company shall in no event be obligated to register shares of Common Stock,
and that Holders of Registrable Securities will not be required to convert
their
Notes into shares of Common Stock in order to exercise the registration rights
granted hereunder, until immediately before the closing of the offering to
which
the registration relates.
(f) SEC.
The
term “SEC”
or
“Commission”
means
the U.S. Securities and Exchange Commission.
1.2 Piggyback
Registrations.
The
Company shall notify all Holders of Registrable Securities in writing at
least
thirty (30) days prior to filing any registration statement under the Securities
Act for purposes of effecting a public offering of securities of the Company
(including, but not limited to, registration statements relating to secondary
offerings of securities of the Company, but excluding
registration statements relating to any employee benefit plan or a corporate
reorganization or other transaction covered by Rule 145 promulgated under
the
Securities Act, or a registration on any registration form which does not
permit
secondary sales or does not include substantially the same information as
would
be required to be included in a registration statement covering the sale
of
Registrable Securities) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder. Each Holder desiring to include in any
such
registration statement all or any part of the Registrable Securities held
by
such Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company in writing, and in such notice
shall inform the Company of the number of Registrable Securities such Holder
wishes to include in such registration statement. If a Holder decides not
to
include all of its Registrable Securities in any registration statement
thereafter filed by the Company, such Holder shall nevertheless continue
to have
the right to include any Registrable Securities in any subsequent registration
statement or registration statements as may be filed by the Company with
respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(a) Underwriting.
If a
registration statement under which the Company gives notice under this Section
1.2
is for
an underwritten offering, then the Company shall so advise the Holders of
Registrable Securities. In such event, the right of any such Holder’s
Registrable Securities to be included in a registration pursuant to this
Section
1.2
shall be
conditioned upon such Holder’s participation in such underwriting and the
inclusion of such Holder’s Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the managing underwriter or underwriter(s) selected
for
such underwriting. Notwithstanding any other provision of this Agreement,
if the
managing underwriter determine(s) in good faith that marketing factors require
a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares (including Registrable Securities) from
the
registration and the underwriting, and the number of shares that may be included
in the registration and the underwriting shall be allocated, first,
to the
Company, second
to
Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the number
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of
Registrable Securities each such Holder has requested to be included in the
registration. If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice, given in
accordance with Section 3.1
hereof,
to the Company and the underwriter, delivered at least twenty (20) days prior
to
the effective date of the registration statement. Any Registrable Securities
excluded or withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder that is a partnership or corporation,
the
partners, retired partners and shareholders of such Holder, or the estates
and
family members of any such partners and retired partners and any trusts for
the
benefit of any of the foregoing persons shall be deemed to be a single “Holder,”
and any pro rata reduction with respect to such “Holder” shall be based upon the
aggregate amount of shares carrying registration rights owned by all entities
and individuals included in such “Holder,” as defined in this
sentence.
(b) Expenses.
All
expenses incurred in connection with a registration pursuant to this Section
1.2,
including without limitation all registration and qualification fees up to
a
maximum of $50,000, printers’ and accounting fees, fees and disbursements of
counsel for the Company (but excluding underwriters’ discounts and commissions)
shall be borne by the Company. Each Holder participating in a registration
pursuant to this Section 1.2
shall
bear such Holder’s proportionate share (based on the number of shares sold by
such Holder over the total number of shares included in such registration
at the
time it goes effective) of any registration and qualification fees in excess
of
$50,000 and all
discounts, commissions or other amounts payable to underwriters or brokers
in
connection with such offering and the fees and disbursements of any counsel
for
the participating Holders.
1.3 Obligations
of the Company.
Whenever required to effect the registration of any Registrable Securities
under
this Agreement, the Company shall, subject to the provisions of Section
1.3(g)
below,
as expeditiously as reasonably possible:
(a) Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use reasonable efforts to cause such registration statement
to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for up to ninety (90) days during which the Company has not exercised
its right to suspend the registration statement pursuant to Section 1.3(g)
below.
(b) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(c) Furnish
to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them that are included
in
such registration.
(d) Use
reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that
the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process
in
any such states or jurisdictions.
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(e) In
the
event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form,
with
the managing underwriter(s) of such offering. Each Holder participating in
such
underwriting hereby agrees to also enter into and perform its obligations
under
such an agreement.
(f) Notify
each Holder of Registrable Securities covered by such registration statement
at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such 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
not
misleading in the light of the circumstances then existing.
(g) Notwithstanding
any other provision of this Agreement, from and after the time a registration
statement filed under this Section 2 covering Registrable Securities is declared
effective, the Company shall have the right to suspend the registration
statement and the related prospectus in order to prevent premature disclosure
of
any material non-public information related to corporate developments by
delivering notice of such suspension to the Holders, provided,
however,
that the
Company may exercise the right to such suspension only once in any 12-month
period and for a period not to exceed 90 days. From and after the date of
a
notice of suspension under this Section 1.3(g),
each
Holder agrees not to use the registration statement or the related prospectus
for resale of any Registrable Security until the earlier of (1) notice from
the
Company that such suspension has been lifted or (2) the 90th
day
following the giving of the notice of suspension.
1.4 Furnish
Information.
It
shall be a condition precedent to the obligations of the Company to take
any
action pursuant to Section 1.2
that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method
of
disposition of such securities as shall be required to timely effect the
registration of their Registrable Securities.
1.5 Delay
of Registration.
No
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such registration as the result of any controversy
that
might arise with respect to the interpretation or implementation of this
Section 1.
1.6 Indemnification.
In the
event any Registrable Securities are included in a registration statement
under
Section 1.2:
(a) By
the
Company.
To the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, the partners, officers and directors of each Holder, any underwriter
(as
defined in the Securities Act) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities
Act or
the Securities Exchange Act of 1934, as amended, (the “Exchange
Act”),
against any losses, claims, damages, or liabilities (joint or several) to
which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, the “Violations”
and,
individually, a “Violation”):
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(1) any
untrue statement or alleged untrue statement of a material fact contained
in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto;
or
(2) 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;
or
(3) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or
state
securities law in connection with the offering covered by such registration
statement.
The
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, within three months after a request for reimbursement has
been
received by the Company, in connection with investigating or defending any
such
loss, claim, damage, liability or action; provided however,
that
the indemnity agreement contained in this Section 1.6(a)
shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation
which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder, partner,
officer, director, underwriter or controlling person of such
Holder.
(b) By
Selling Holders.
To the
extent permitted by law, each selling Holder will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed
the
registration statement, each person, if any, who controls the Company within
the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder’s
partners, directors or officers or any person who controls such Holder within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities (joint or several) to which the Company or
any
such director, officer, controlling person, underwriter or other such Holder,
partner or director, officer or controlling person of such other Holder may
become subject under the Securities Act, the Exchange Act or other federal
or
state law, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereto) arise out of or are based upon any Violation, in each case
to
the extent (and only to the extent) that such Violation occurs in reliance
upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration. Each such Holder will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection
with
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investigating
or defending any such loss, claim, damage, liability or action; within three
months after a request for reimbursement has been received by the indemnifying
Holder, provided,
however,
that
the indemnity agreement contained in this Section 1.6(b)
shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the
Holder, which consent shall not be unreasonably withheld; and provided further,
that
the total amounts payable in indemnity by a Holder under this
Section 1.6(b)
in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation
arises.
(c) Notice.
Promptly after receipt by an indemnified party under this
Section 1.6
of
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 under this Section 1.6,
deliver
to the indemnifying party a written notice of the commencement thereof. 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 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
fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would
be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party
of
any liability to the indemnified party under this Section 1.6,
but the
failure to deliver written notice to the indemnifying party will not relieve
it
of any liability that it may have to any indemnified party otherwise than
under
this Section 1.6.
(d) Defect
Eliminated in Final Prospectus.
The
foregoing indemnity agreements of the Company and Holders are subject to
the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with
the
SEC at the time the registration statement in question becomes effective
or the
amended prospectus filed with the SEC pursuant to SEC Rule 424(b)
(the
“Final
Prospectus”),
such
indemnity agreement shall not inure to the benefit of any person if a copy
of
the Final Prospectus was furnished to the indemnified party and was not
furnished to the person asserting the loss, liability, claim or damage at
or
prior to the time such action is required by the Securities Act.
(e) Contribution.
If the
indemnification provided for in this Section 1.6
is held
by a court of competent jurisdiction to be unavailable to an indemnified
party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying the indemnified
party, shall contribute to the amount paid or payable by such indemnified
party
with respect to such loss, liability, claim, damage or expense in the proportion
that is appropriate to reflect the relative fault of the indemnifying party
and
the indemnified party in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as any
other
relevant equitable considerations. The relative fault of the indemnifying
party
and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or
the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. In any such case, (A) no such Holder will
be
required to contribute any amount in excess of the public offering price
of all
such Registrable Securities offered and sold by such Holder pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person or entity who was not
guilty of such fraudulent misrepresentation.
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(f) Conflict
with Underwriting Agreement.
Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement
entered
into in connection with the underwritten public offering are in conflict
with
the foregoing provisions, the provisions in the underwriting agreement will
control.
(g) Survival.
The
obligations of the Company and Holders under this Section 1.6
shall
survive the completion of any offering of Registrable Securities in a
registration statement, and otherwise.
1.7 Rule 144
Reporting.
With a
view to making available the benefits of certain rules and regulations of
the
Commission which may at any time permit the sale of the Registrable Securities
to the public without registration, the Company agrees to:
(a) Make
and
keep public information available, as those terms are understood and defined
in
Rule 144 under the Securities Act;
(b) Use
reasonable, diligent efforts to file with the Commission in a timely manner
all
reports and other documents required of the Company under the Securities
Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) So
long
as a Holder owns any Registrable Securities, to furnish to the Holder forthwith
upon request a written statement by the Company as to its compliance with
the
reporting requirements of said Rule 144 (at any time after ninety
(90) days
after the effective date of the first registration statement filed by the
Company for an offering of its securities to the general public), and of
the
Securities Act and the Exchange Act (at any time after it has become subject
to
the reporting requirements of the Exchange Act), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as a Holder may reasonably request in availing itself of any
rule
or regulation of the Commission allowing a Holder to sell any such securities
without registration (at any time after the Company has become subject to
the
reporting requirements of the Exchange Act).
1.8 Termination
of the Company’s Obligations.
The
Company shall have no obligations pursuant to Section 1.2
with
respect to any Registrable Securities proposed to be sold by a Holder in
a
registration pursuant to Section 1.2
if, in
the opinion of counsel to the Company, all such Registrable Securities proposed
to be sold by a Holder may be sold in a three (3) month period without
registration under the Securities Act pursuant to Rule 144 under the
Securities Act.
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2. ASSIGNMENT
AND AMENDMENT.
2.1 Assignment.
Notwithstanding anything herein to the contrary:
(a) Registration
Rights.
The
registration rights of a Holder under Section 1
hereof
may be assigned only to a party who acquires at least 500,000 shares of Common
Stock (including the Common Stock issuable upon conversion of the Notes);
provided,
however
that no
party may be assigned any of the foregoing rights unless the Company is given
written notice by the assigning party at the time of such assignment stating
the
name and address of the assignee and identifying the securities of the Company
as to which the rights in question are being assigned; provided further,
that
any such assignee of such rights is not deemed by the Board of Directors
of the
Company, in its reasonable judgment, to be a competitor of the Company; and
provided further
that any
such assignee shall receive such assigned rights subject to all the terms
and
conditions of this Agreement, including without limitation the provisions
of
this Section 2.
Assignments may be made without the Company’s consent or obtaining the minimum
number of shares of Registrable Securities noted above if the assignment
is to a
partner, affiliate, shareholder, parent, child or spouse of the holder or
to the
holder’s estate, or with respect to the shares issuable upon conversion of the
Notes, otherwise in accordance with the assignment provisions of the
Notes.
2.2 Amendment
and Waiver of 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 and Holders
(and/or
any of their permitted successors or assigns) holding Registrable Securiteis
(including Notes representing and/or convertible into a majority of all the
Holders’ Shares (as defined below)); provided,
further,
that
the grant to third parties of piggyback registration rights under
Section 1.2
hereof
on a pari passu basis with the piggyback registration rights of the Holders
under Section 1.2
shall
not be deemed to be a material and adverse change to the piggyback registration
rights of the Holders under this Agreement and shall not require the consent
of
Holders. As used herein, the term “Holders’
Shares”
shall
mean the shares of Common Stock then issuable upon conversion of all then
outstanding Notes. Any amendment or waiver effected in accordance with this
Section 2.2
shall be
binding upon each Holder, each permitted successor or assignee of such Holder
and the Company.
3. GENERAL
PROVISIONS.
3.1 Notices.
Any and
all notices required or permitted to be given to a party pursuant to the
provisions of this Agreement will be in writing and will be effective and
deemed
to provide such party sufficient notice under this Agreement on the earliest
of
the following: (i) at the time of personal delivery, if delivery is
in
person; (ii) at the time of transmission by facsimile, addressed
to the
other party at its facsimile number specified herein (or hereafter modified
by
subsequent notice to the parties hereto), with confirmation of receipt made
by
both telephone and printed confirmation sheet verifying successful transmission
of the facsimile; (iii) one
(1) business day after deposit with an express overnight courier for United
States deliveries, or two (2) business days after such deposit for deliveries
outside of the United States, with proof of delivery from the courier requested;
or (iv) three (3) business days after deposit in the United States
mail by
certified mail (return receipt requested) for United States
deliveries.
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All
notices for delivery outside the United States will be sent by facsimile
or by
express courier. Notices by facsimile shall be machine verified as received.
All
notices not delivered personally or by facsimile will be sent with postage
and/or other charges prepaid and properly addressed to the party to be notified
at the address or facsimile number as follows, or at such other address or
facsimile number as such other party may designate by one of the indicated
means
of notice herein to the other parties hereto as follows:
(a) if
to a
Note Holder, at such Note Holder’s respective address as set forth on
Exhibit A
hereto.
(b) if
to the
Company, marked “Attention: President”, at 0000 Xxxxxxxxx Xxxx., Xxxxx 000,
Xxxxxxxx, XX 00000.
3.2 Entire
Agreement.
This
Agreement and the documents referred to herein, together with all the Exhibits
hereto, constitute the entire agreement and understanding of the parties
with
respect to the subject matter of this Agreement, and supersede any and all
prior
understandings and agreements, whether oral or written, between or among
the
parties hereto with respect to the specific subject matter hereof.
3.3 Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of Delaware, without giving effect to that body of laws pertaining
to
conflict of laws.
3.4 Severability.
If any
provision of this Agreement is determined by any court or arbitrator of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
such provision will be enforced to the maximum extent possible given the
intent
of the parties hereto. If such clause or provision cannot be so enforced,
such
provision shall be stricken from this Agreement and the remainder of this
Agreement shall be enforced as if such invalid, illegal or unenforceable
clause
or provision had (to the extent not enforceable) never been contained in
this
Agreement. Notwithstanding the forgoing, if the value of this Agreement based
upon the substantial benefit of the bargain for any party is materially
impaired, which determination as made by the presiding court or arbitrator
of
competent jurisdiction shall be binding, then both parties agree to substitute
such provision(s) through good faith negotiations.
3.5 Third
Parties.
Nothing
in this Agreement, express or implied, is intended to confer upon any person,
other than the parties hereto and their successors and assigns, any rights
or
remedies under or by reason of this Agreement.
3.6 Successors
And Assigns.
Subject
to the provisions of Section 2.1,
this
Agreement, and the rights and obligations of the parties hereunder, will
be
binding upon and inure to the benefit of their respective successors, assigns,
heirs, executors, administrators and legal representatives.
3.7 Titles
and Headings.
The
titles, captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to
“sections” and “exhibits” will mean “sections” and “exhibits” to this
Agreement.
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3.8 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered will be deemed an original, and all of which together
shall constitute one and the same agreement.
3.9 Costs
And Attorneys’ Fees.
In the
event that any action, suit or other proceeding is instituted concerning
or
arising out of this Agreement or any transaction contemplated hereunder,
the
prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and
all
appeals or petitions therefrom.
3.10 Adjustments
for Stock Splits, Etc.
Wherever
in this Agreement there is a reference to a specific number of shares of
Common
Stock of the Company of any class or series, then, upon the occurrence of
any
subdivision, combination or stock dividend of such class or series of stock,
the
specific number of shares so referenced in this Agreement shall automatically
be
proportionally adjusted to reflect the affect on the outstanding shares of
such
class or series of stock by such subdivision, combination or stock
dividend.
3.11 Further
Assurances.
The
parties agree to execute such further documents and instruments and to take
such
further actions as may be reasonably necessary to carry out the purposes
and
intent of this Agreement.
3.12 Facsimile
Signatures.
This
Agreement may be executed and delivered by facsimile and upon such delivery
the
facsimile signature will be deemed to have the same effect as if the original
signature had been delivered to the other party. The original signature copy
shall be delivered to the other party by express overnight delivery. The
failure
to deliver the original signature copy and/or the nonreceipt of the original
signature copy shall have no effect upon the binding and enforceable nature
of
this Agreement.
-10-
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date and year first
written above.
|
THE
COMPANY:
|
|||
|
Name:
|
|||
|
By:
|
Xxx
X. Xxxxxx
|
||
|
Title:
|
Chief
Executive Officer
|
||
|
NOTE
HOLDERS:
|
|||
|
[FOR
ENTITY INVESTOR USE
FOLLOWING
SIGNATURE BLOCK:]
|
[FOR
INDIVIDUAL INVESTOR USE
FOLLOWING
SIGNATURE BLOCK:]
|
||
|
Name:
|
Name:
|
||
|
[TYPE
NAME ON LINE]
|
|||
|
By:
|
By:
|
||
|
Title:
|
[SIGN
HERE]
|
||
SIGNATURE
PAGE TO REGISTRATION
RIGHTS
AGREEMENT
-11-
EXHIBIT A
List
of Note Holders
|
Name
and Address
|
Number
of Shares
of
Common Stock Underlying Notes Held
|
|
A-1
