EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This agreement, dated as of March 15, 2006 (this "Agreement") is
entered into by and among Catcher Holdings, Inc., a Delaware corporation (the
"Company"), and the persons and entities listed on EXHIBIT A hereto (each an
"Investor" and collectively, the "Investors").
RECITALS
WHEREAS, the Company and the Investors have entered into a Securities
Purchase Agreement of even date herewith (the "Purchase Agreement") pursuant to
which the Investors will purchase 1,341,000 Units (the "Units") consisting in
the aggregate of 2,682,000 shares of the Company's common stock (the "Shares")
and Series D Warrants (the "Warrants") to purchase an aggregate of 1,341,000
additional shares of the Company's common stock (the "Warrant Shares"); and
WHEREAS, the Company and the Investors desire to provide for certain
arrangements with respect to the registration of the Shares and Warrant Shares
under the Securities Act of 1933, as amended (the "Securities Act");
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
As used in this agreement, the following terms shall have the following
respective meanings:
1.1. The term "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
1.2. The term "Effectiveness Date" means, with respect to any
registration statement required to be filed hereunder, the six month anniversary
of the Filing Date.
1.3. The term "Filing Date" means, (a) with respect to the
initial registration statement required to be filed hereunder, the 45th calendar
day following the Initial Closing Date (as defined in the Purchase Agreement),
(b) with respect to a registration statement required to be filed pursuant to
Section 2.2 hereunder, the later of (i) the one-year anniversary of the date on
which the initial registration statement referred to in (a) above is declared
effective and (ii) the one-year anniversary of the Effectiveness Date, and (c)
with respect to any additional registration statements which may be required to
be filed pursuant to Section 3.13, the 30th calendar day following the date on
which the Company first knows, or reasonably should have known, that such
additional registration statement is required hereunder.
1.4. The term "Holder" shall mean any person owning or having
the right to acquire Registrable Securities or any permitted transferee of a
Holder.
1.5. The terms "register," "registered" and "registration"
refer to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or order of effectiveness of such registration statement or
document.
1.6. The term "Registrable Securities" shall mean the Shares
and any securities issued or issuable upon any stock split, dividend or other
distribution, recapitalization or similar event with respect to the foregoing;
provided, however, that such securities shall only be treated as Registrable
Securities if and only for so long as they (i) have not been disposed of
pursuant to a registration statement declared effective by the Commission; (ii)
have not been sold in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act so that all transfer restrictions
and restrictive legends with respect thereto are removed upon the consummation
of such sale; and (iii) are held by a Holder.
1.7. The term "Registrable Warrant Shares" shall mean the
Warrant Shares and any securities issued or issuable upon any stock split,
dividend or other distribution, recapitalization or similar event with respect
to the foregoing; provided, however, that such securities shall only be treated
as Registrable Warrant Shares if and only for so long as they (i) have not been
disposed of pursuant to a registration statement declared effective by the
Commission; (ii) have not been sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act so that
all transfer restrictions and restrictive legends with respect thereto are
removed upon the consummation of such sale; and (iii) are held by a Holder.
1.8. The term "Selling Holders" shall mean the Holders selling
their Registrable Securities or Registrable Warrant Shares.
2. MANDATORY REGISTRATION. The Company agrees that:
2.1. on or prior to each relevant Filing Date, it will file a
registration statement on Form SB-2 (or on such other form appropriate for such
purpose) (the "Mandatory Registration") covering the resale of the Registrable
Securities.
2.2. on or prior to the relevant Filing Date, it will file a
registration statement on Form SB-2 (or on such other form appropriate for such
purpose) covering the resale of the Registrable Warrant Shares.
2.3. it will use its commercially reasonable efforts and will
cooperate fully with the Commission to cause such registration statement to be
declared effective by the Commission as promptly as possible after the filing
thereof, including without limitation by using its commercially reasonable
efforts to respond to any comments of the Commission within thirty (30) calendar
days following receipt of the initial comments from the Commission and within
fifteen (15) business days following receipt of any additional comments received
from the Commission.
In the event that (i) the Company fails to file a registration statement
covering the resale of Registrable Securities on or before the Filing Deadline
(the "Default Date"), (ii) the Company fails to use its commercially reasonable
efforts to respond to any comments of the Commission within thirty (30) calendar
days following receipt of the initial comments from the Commission and within
fifteen (15) business days following receipt of any additional comments received
from the Commission, (iii) a registration statement filed or required to be
filed hereunder is not declared effective by the Commission on or prior to the
Effectiveness Date of such registration statement or (iv) after a registration
statement is first declared effective by the Commission, it ceases for any
reason to remain continuously effective as to all Registrable Securities or
Registrable Warrant Shares for which it is required to be effective for more
than an aggregate of fifteen (15) trading days during any 12-month period, the
Company shall issue to each
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Investor, as liquidated damages and not as a penalty, that number of Shares and
Warrants equal to one percent (1%) of the respective number of Shares and
Warrants sold to such Investor pursuant to the Purchase Agreement for no
additional cost to such Investor. Additionally, for every thirty (30) calendar
days (i) following the Default Date until the date such registration statement
has been filed with the Commission, (ii) that the Company continues to fail to
use commercially reasonable efforts to respond to any comments of the Commission
within thirty (30) calendar days following receipt of the initial comments from
the Commission and within fifteen (15) business days following receipt of any
additional comments received from the Commission, (iii) following the
Effectiveness Date that a registration statement filed or required to be filed
hereunder is not declared effective by the Commission, or (iv) that a
registration statement ceases for any reason to remain continuously effective as
to all Registrable Securities or Registrable Warrant Shares for which it is
required to be effective for more than an aggregate of fifteen (15) trading days
during any 12-month period, then the Company shall issue to each Holder, as
liquidated damages and not as a penalty, an additional number of Shares and
Warrants equal to one percent (1%) of the respective number of Shares and
Warrants sold to such Investor pursuant to the Purchase Agreement at no
additional cost to such Investor.
2.4. the rights under this Section 2 shall be senior to and
have priority over any additional registration rights that the Company may have
granted prior to the date hereof, including, but not limited to, rights granted
under the Amended and Restated Registration Rights Agreement, dated as of
February 2, 2006, as amended from time to time, by and among the Company and the
investors listed on Exhibit A attached thereto. Consequently, no other
securities shall be included in the Mandatory Registration unless and until all
Registrable Securities hereunder have been included in such Mandatory
Registration.
2.5. Each Holder agrees to furnish to the Company a completed
Questionnaire in the form attached to this Agreement as Annex B (a "Selling
Holder Questionnaire"). The Company shall not be required to include the
Registrable Securities of a Holder in a Registration Statement and shall not be
required to pay any liquidated or other damages under Section 2.3 to any Holder
who fails to furnish to the Company a fully completed Selling Holder
Questionnaire at least ten trading days prior to the Filing Date.
3. REGISTRATION PROCEDURES. Whenever required under this Agreement to
include Registrable Securities in a registration statement, the Company shall,
as expeditiously as commercially, reasonably possible:
3.1. Use its commercially reasonable efforts to cause such
registration statement to remain effective until the later to occur of (i) two
(2) years from the date of this Agreement, or (ii) two (2) years from the date
the Investors convert the Warrants to Warrant Shares, or (iii) such time that
all of such Registrable Securities and Registrable Warrant Shares are no longer,
by reason of Rule 144(k) under the Securities Act, required to be registered for
the sale thereof by such Holders. The Company will also use commercially
reasonable efforts to, during the period that such registration statement is
required to be maintained hereunder, file such post-effective amendments and
supplements thereto as may be required by the Securities Act and the rules and
regulations thereunder; provided, however, that if applicable rules under the
Securities Act governing the obligation to file a post-effective amendment
permits, in lieu of filing a post-effective amendment that (A) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (B) reflects
facts or events representing a material or fundamental change in the information
set forth in the registration statement, the Company may incorporate by
reference information required to be included in (A) and (B) above to the extent
such information is contained in periodic reports filed pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), in the registration statement.
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3.2. Prepare and file with the Commission 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.
3.3. Upon receipt of a confidentiality agreement reasonably
acceptable to the Company, make available for inspection upon reasonable notice
during the Company's regular business hours by each Selling Holder, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such Selling
Holder or underwriter, all financial and other records, pertinent 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 Selling Holder, underwriter, attorney, accountant or agent in connection
with such registration statement.
3.4. Furnish to the Selling Holders such numbers of copies of
a prospectus, including a preliminary prospectus as amended or supplemented from
time to time, 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 Registrable Securities or Registrable Warrant Shares owned by
them.
3.5. Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under state
securities laws of such jurisdictions as shall be reasonably requested by the
Selling Holders; provided, however, 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, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
3.6. 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 of such offering. Each Selling
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
3.7. 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: (i) when the registration
statement or any post-effective amendment and supplement thereto has become
effective; (ii) of the issuance by the Commission of any stop order or the
initiation of proceedings for that purpose (in which event the Company shall
make every reasonable effort to obtain the withdrawal of any order suspending
effectiveness of the registration statement at the earliest possible time or
prevent the entry thereof); (iii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities or Registrable Warrant Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and (iv) when
the Company notifies the Commission 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.
3.8. Cause all such Registrable Securities or Registrable
Warrant Shares registered hereunder to be listed on each securities exchange or
quotation service on which similar securities issued by the Company are then
listed or quoted.
3.9. Provide a transfer agent and registrar for all
Registrable Securities or Registrable Warrant Shares registered pursuant hereto
and with the CUSIP number for all such Registrable Securities or Registrable
Warrant Shares, in each case not later than the effective date of such
registration.
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3.10. Cooperate with the Selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities or Registrable Warrant
Shares to be sold, which certificates will not bear any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, shall request at least two
business days prior to any sale of the Registrable Securities or Registrable
Warrant Shares to the underwriters.
3.11. Comply with all applicable rules and regulations of the
Commission.
3.12. If the offering is underwritten and at the request of
any Selling Holder, use its commercially reasonable efforts to furnish on the
date that Registrable Securities or Registrable Warrant Shares are delivered to
the underwriters for sale pursuant to such registration: (i) opinions dated such
date of counsel representing the Company for the purposes of such registration,
addressed to the underwriters and the transfer agent for the Registrable
Securities or Registrable Warrant Shares so delivered, respectively, to the
effect that such registration statement has become effective under the
Securities Act and such Registrable Securities or Registrable Warrant Shares are
freely tradable, and covering such other matters as are customarily covered in
opinions of issuer's counsel delivered to underwriters and transfer agents in
underwritten public offerings and (ii) a letter dated such date from the
independent public accountants who have certified the financial statements of
the Company included in the registration statement or the prospectus, covering
such matters as are customarily covered in accountants' letters delivered to
underwriters in underwritten public offerings.
3.13. If at any time (i) after a registration statement
relating to the Registrable Securities is declared effective less than 90% of
the then Registrable Securities are then registered in one or more registration
statements, then the Company shall, upon written request of a majority in
interest of the Holders of Registrable Securities, file as soon as reasonably
practicable but in any case prior to the applicable Filing Date, an additional
registration statement covering the resale by the Holders of not less than 100%
of the number of then Registrable Securities, and (ii) after a registration
statement relating to the Registrable Warrant Shares is declared effective less
than 90% of the then Registrable Warrant Shares are then registered in one or
more registration statements, then the Company shall, upon written request of a
majority in interest of the Holders of Registrable Warrant Shares, file as soon
as reasonably practicable but in any case prior to the applicable Filing Date,
an additional registration statement covering the resale by the Holders of not
less than 100% of the number of then Registrable Warrant Shares. For purposes of
this Section 3.13, Registrable Securities or Registrable Warrant Shares held by
Holders who have not furnished a Selling Stockholder Questionnaire at the time a
registration statement referred to in (i) or (ii) above, as applicable, is
declared effective or who have requested that their Registrable Securities or
Registrable Warrant Shares not be included in a registration statement, shall
not be included in determining the percent of Registrable Securities or
Registrable Warrant Shares then registered pursuant to one or more registration
statements.
3.14. Use commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (a) any order suspending
the effectiveness of a registration statement, or (b) any suspension of the
qualification (or exemption from qualification) of any of the Registrable
Securities or Registrable Warrant Shares for sale in any jurisdiction, at the
earliest practicable moment.
4. FURNISH INFORMATION. It shall be a condition precedent to the
obligation of the Company to take any action with respect to the Registrable
Securities or Registrable Warrant Shares of any Selling Holder that such Holder
shall furnish to the Company such information regarding the Holder, the
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Registrable Securities or Registrable Warrant Shares held by the Holder, and the
intended method of disposition of such securities as shall be reasonably
required by the Company to effect the registration of such Holder's Registrable
Securities or Registrable Warrant Shares.
5. REGISTRATION EXPENSES. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities or Registrable Warrant
Shares are sold pursuant to a registration statement. The fees and expenses
referred to in the foregoing sentence shall include, without limitation, (a) all
registration and filing fees (including, without limitation, fees and expenses
(i) with respect to filings required to be made with the trading market on which
the Common Stock is then listed for trading, and (ii) in compliance with
applicable state securities or Blue Sky laws reasonably agreed to by the Company
in writing (including, without limitation, fees and disbursements of counsel for
the Company in connection with Blue Sky qualifications or exemptions of the
Registrable Securities and Registrable Warrant Shares and determination of the
eligibility of the Registrable Securities and Registrable Warrant Shares for
investment under the laws of such jurisdictions as requested by the Holders),
(b) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities and Registrable Warrant Shares and of
printing prospectuses requested by the Holders), (c) messenger, telephone and
delivery expenses, (d) fees and disbursements of counsel for the Company, and
(e) fees and expenses of all other Persons retained by the Company in connection
with the consummation of the transactions contemplated by this Agreement. In
addition, the Company shall be responsible for all fees and expenses incurred in
connection with the listing of the Registrable Securities and Registrable
Warrant Shares on any securities exchange as required hereunder. In no event
shall the Company be responsible for any broker or similar commissions or any
legal fees or other costs of the Holders.
6. INDEMNIFICATION. In the event that any Registrable Securities are
included in a registration statement under this Agreement:
6.1. To the extent permitted by law, the Company will
indemnify and hold harmless 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 Exchange
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Securities Act, or the Exchange Act,
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 a "Violation") in connection with the
Company's obligations under this Agreement: (i) any 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, (ii) the omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein made,
under the circumstances in which they were made, not misleading, or (iii) any
violation by the Company of the Securities Act, the Exchange Act, or any rule or
regulation promulgated under the Securities Act, or the Exchange Act, and the
Company will pay to each such Holder, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 6.1. 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, 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 any such Holder, underwriter or controlling person. The Company
shall notify the Holders promptly of the institution, threat or assertion of any
proceeding or other action arising from or in connection with the transactions
contemplated by this Agreement of which the Company is aware.
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6.2. To the extent permitted by law, each Selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers, each person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, any other Holder selling securities in such
registration statement and any controlling person of any such underwriter or
other Holder, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Securities Act, or the Exchange Act, 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;
and each such Holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 6.2, in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 6.2 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. In no event shall the liability of any Selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds received by such
Holder upon the sale of the Registrable Securities or Registrable Warrant Shares
giving rise to such indemnification obligation.
6.3. Promptly after receipt by an indemnified party under this
Section 8 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 8,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel selected by
the indemnifying party and approved by the indemnified party (whose approval
shall not be unreasonably withheld); provided, however, that an indemnified
party (together with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the indemnifying party, if, in
the opinion of counsel to the indemnified party, representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing 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 6.
6.4. If the indemnification provided for in this Section 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
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other 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 of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the alleged
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. The parties
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hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6.4 were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 6.4, no Holder shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the proceeds actually
received by such Holder from the sale of the Registrable Securities and
Registrable Warrant Shares exceeds the amount of any damages that such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
6.5. Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in such underwriting
agreement shall control.
6.6. The obligations of the Company and Holders under this
Section 6 shall survive the termination of this Agreement.
7. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144 and any other rule or
regulation of the Commission that may at any time permit a Holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company agrees to:
7.1. make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
7.2. 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; and
7.3. furnish to any Holder, so long as the Holder owns any
Registrable Securities or Registrable Warrant Shares, forthwith upon request (i)
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 (ii) such other
information as may be reasonably requested in availing any Holder of any rule or
regulation of the Commission which permits the selling of any such securities
without registration or pursuant to such form.
8. GENERAL.
8.1. SEVERABILITY. The invalidity or unenforceability of any
provision of this agreement shall not affect the validity or enforceability of
any other provision of this agreement.
8.2. SPECIFIC PERFORMANCE. In addition to any and all other
remedies that may be available at law in the event of any breach of this
agreement, each Investor shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
8.3. GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Delaware, without regard to the principles of conflicts of law thereof. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of Wilmington, County of New Castle, for the
adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is
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not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence a proceeding to
enforce any provisions of this Agreement, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its attorneys' fees and
other costs and expenses incurred with the investigation, preparation and
prosecution of such proceeding.
8.4. NOTICES. All notices, requests, consents, and other
communications under this agreement shall be in writing and shall be deemed
delivered (i) in the case of Investors located in the United States only, two
business days after being sent by registered or certified mail, return receipt
requested, postage prepaid, and in the case of Investors located outside the
United States, ten days after being sent by air mail, postage prepaid, or (ii)
the scheduled delivery date after being sent via a reputable nationwide courier
service (no signed receipt being necessary), or (iii) by fax with electronic
confirmation of receipt, or (iv) by electronic mail, with no notice of delivery
failure, in each case to the intended recipient as set forth below:
If to the Company:
Catcher Holdings, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
Email: xxxxxxxx@xxxxxxxxxx.xxx
Copy to: Xxxxxxxx & Xxxxxxxx, LLP
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Email: xxxxxxx@xxxx.xxx
If to a Investor, at the address set forth on EXHIBIT A for such
Investor, or at such other address or addresses as may have been furnished to
the Company in writing by such Investor.
8.5. COMPLETE AGREEMENT. This agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
8.6. AMENDMENTS AND WAIVERS. Any term of this agreement may be amended
or terminated and the observance of any term of this agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of a
majority of the Registrable Shares and Registrable Warrant Shares; provided,
that this agreement may be amended with the consent of the holders of less than
all Registrable Shares and Registrable Warrant Shares only in a manner which
applies on its face to all such holders in substantially the same fashion. Any
such amendment, termination or waiver effected in accordance with this Section
-9-
10.6 shall be binding on all parties hereto, even if they do not execute such
consent. No waivers of or exceptions to any term, condition or provision of this
agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such term, condition or provision.
8.7. PRONOUNS. Whenever the context may require, any pronouns used in
this agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
8.8. COUNTERPARTS; FAXED SIGNATURES. This agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same document. This agreement
may be executed by faxed signatures.
8.9. SECTION HEADINGS. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
8.10. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not
assign its rights or obligations hereunder without the prior written consent of
all of the Holders of the then-outstanding Registrable Securities and
Registrable Warrant Shares. Each Holder may assign its respective rights
hereunder in the manner and to the persons as permitted under the Purchase
Agreement.
8.11. INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS. The
obligations of each Investor hereunder is several and not joint with the
obligations of any other Investor hereunder, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor hereunder. Nothing contained herein or in any other agreement or
document delivered at any closing, and no action taken by any Investor pursuant
hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Investors are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each
Investor shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose.
8.12. DISCONTINUED DISPOSITION. Each Holder agrees by its acquisition
of such Registrable Securities that, upon receipt of a notice from the Company
of the occurrence of any event of the kind described in Section 3.7, such Holder
will forthwith discontinue disposition of such Registrable Securities under a
Registration Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement, or until it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement.
[Remainder of page intentionally left blank]
-10-
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
CATCHER HOLDINGS, INC.
By:______________________________
Name: Xxxxxxx Xxxxxx
Title: President
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
AGREED AND ACCEPTED:
By: _____________________________
Name:
Title:
EXHIBIT A
INVESTORS
ANNEX B
CATCHER HOLDINGS, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial owner of common stock, par value $.001 per
share (the "COMMON STOCK"), of Catcher Holdings, Inc., a Delaware corporation
(the "COMPANY"), (the "REGISTRABLE SECURITIES") understands that the Company has
filed or intends to file with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form SB-2 (the "REGISTRATION
STATEMENT") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "SECURITIES ACT"), of the Registrable Securities, in
accordance with the terms of the Registration Rights Agreement, dated as of
February [___], 2006 (the "REGISTRATION RIGHTS AGREEMENT"), among the Company
and the Investors named therein. A copy of the Registration Rights Agreement is
available from the Company upon request at the address set forth below. All
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain legal consequences arise from being named as a selling
securityholder in the Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Registration
Statement and the related prospectus.
NOTICE
The undersigned beneficial owner (the "SELLING SECURITYHOLDER") of
Registrable Securities hereby elects to include the Registrable Securities owned
by it and listed below in Item 3 (unless otherwise specified under such Item 3)
in the Registration Statement.
The undersigned hereby provides the following information to the Company and
represents and warrants that such information is accurate:
QUESTIONNAIRE
1. NAME.
(a) Full Legal Name of Selling Securityholder
______________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities Listed in Item 3
below are held:
______________________________________________________________
(c) Full Legal Name of Natural Control Person (which means a
natural person who directly or indirectly alone or with others
has power to vote or dispose of the securities covered by the
questionnaire):
______________________________________________________________
2. ADDRESS FOR NOTICES TO SELLING SECURITYHOLDER:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Telephone: _____________________________________________________________________
Fax: ___________________________________________________________________________
Contact Person: ________________________________________________________________
3. BENEFICIAL OWNERSHIP OF REGISTRABLE SECURITIES:
(a) Type and Principal Amount of Registrable Securities
beneficially owned (not including the Registrable Securities
that are issuable pursuant to the Purchase Agreement):
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. BROKER-DEALER STATUS:
(a) Are you a broker-dealer?
Yes [ ] No [ ]
(b) If "yes" to Section 4(a), did you receive your Registrable
Securities as compensation for investment banking services to
the Company.
Yes [ ] No [ ]
Note: If no, the Commission's staff has indicated that you should
be identified as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
Yes [ ] No [ ]
(d) If you are an affiliate of a broker-dealer, do you certify
that you bought the Registrable Securities in the ordinary
course of business, and at the time of the purchase of the
Registrable Securities to be resold, you had no agreements or
understandings, directly or indirectly, with any person to
distribute the Registrable Securities?
Yes [ ] No [ ]
Note: If no, the Commission's staff has indicated that you should
be identified as an underwriter in the Registration Statement.
5. BENEFICIAL OWNERSHIP OF OTHER SECURITIES OF THE COMPANY OWNED BY THE SELLING
SECURITYHOLDER.
EXCEPT AS SET FORTH BELOW IN THIS ITEM 5, THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER
THAN THE REGISTRABLE SECURITIES LISTED ABOVE IN ITEM 3.
(a) Type and Amount of Other Securities beneficially owned by
the Selling Securityholder:
______________________________________________________________
______________________________________________________________
6. RELATIONSHIPS WITH THE COMPANY:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED NOR ANY OF ITS
AFFILIATES, OFFICERS, DIRECTORS OR PRINCIPAL EQUITY HOLDERS (OWNERS OF
5% OF MORE OF THE EQUITY SECURITIES OF THE UNDERSIGNED) HAS HELD ANY
POSITION OR OFFICE OR HAS HAD ANY OTHER MATERIAL RELATIONSHIP WITH THE
COMPANY (OR ITS PREDECESSORS OR AFFILIATES) DURING THE PAST THREE
YEARS.
State any exceptions here:
_______________________________________________________________________
_______________________________________________________________________
The undersigned agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof at any time while the Registration Statement
remains effective.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items 1 through 6 and the
inclusion of such information in the Registration Statement and the related
prospectus and any amendments or supplements thereto. The undersigned
understands that such information will be relied upon by the Company in
connection with the preparation or amendment of the Registration Statement and
the related prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated: ______________________ Beneficial Owner: ________________________
By: ______________________________________
Name:
Title:
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND
RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
