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EXHIBIT 10.122
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April 25,
2001, by and between USURF AMERICA, INC., a Nevada corporation, (the
"Company"), and FUSION CAPITAL FUND II, LLC (together with it permitted
assigns, the "Buyer"). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth in the Common
Stock Purchase Agreement by and between the parties hereto dated as of
April 25, 2001 (as amended, restated, supplemented or otherwise modified
from time to time, the "Purchase Agreement").
WHEREAS:
A. The Company has agreed, upon the terms and subject to the conditions of
the Purchase Agreement, to issue to the Buyer up to Ten Million Dollars
($10,000,000) of the Company's common stock, par value $.0001 per share
(the "Common Stock") (the "Purchase Shares"); and
B. In connection with the Purchase Agreement, the Company has issued to the
Buyer (i) 800,000 shares of Common Stock (the "Commitment Shares") and
(ii) 645,000 common stock purchase warrants (the "Warrants") granting the
Buyer the right to purchase from the Company 645,000 shares of Common Stock
(the "Warrant Shares"); and
C. To induce the Buyer to enter into the Purchase Agreement, the Company
has agreed to provide certain registration rights under the Securities Act
of 1933, as amended, and the rules and regulations thereunder, or any
similar successor statute (collectively, the "1933 Act"), and applicable
state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Buyer
hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
a. "Investor" means the Buyer, any transferee or assignee thereof to whom a
Buyer assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section 9 and
any transferee or assignee thereof to whom a transferee or assignee assigns
its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 9.
b. "Person" means any person or entity including any corporation, a limited
liability company, an association, a partnership, an organization, a
business, an individual, a governmental or political subdivision thereof or
a governmental agency.
c. "Register," "registered," and "registration" refer to a registration
effected by preparing and filing one or more registration statements of the
Company in compliance with the 1933 Act and pursuant to Rule 415 under the
1933 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(s) by the United States
Securities and Exchange Commission (the "SEC").
d. "Registrable Securities" means collectively: (1) the Purchase Shares
which have been, or which may from time to time be, issued or issuable upon
purchases of the Available Amount under the Purchase Agreement (without
regard to any limitation or restriction on purchases), (2) the Warrant
Shares which have been, or which may from time to time be, issued or
issuable upon exercise of the Warrants under the Warrant Agreement (without
regard to any limitation or restriction on exercise), and (3) the 800,000
Commitment Shares issued to the Investor at or prior to the Commencement,
and any shares of capital stock issued or issuable with respect to the
Purchase Shares, the Commitment Shares, Warrant Shares or the Purchase
Agreement or the Warrant Agreement as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitation on purchases under the Purchase Agreement or
exercise under the Warrant Agreement.
e. "Registration Statement" means the registration statement of the Company
which the Company has agreed to file pursuant to Section 4(a) of the
Purchase Agreement with respect to the sale of the Registrable Securities.
2. REGISTRATION.
a. Mandatory Registration. The Company shall use best efforts to keep the
Registration Statement effective pursuant to Rule 415 promulgated under the
1933 Act and available for sales of all of the Registrable Securities at
all times until the earlier of (i) the date as of which the Investor may
sell all of the Registrable Securities without restriction pursuant to Rule
144(k) promulgated under the 1933 Act (or successor thereto) or (ii) the
date on which (A) the Investor shall have sold all the Registrable
Securities and no available amount remains under the Purchase Agreement
(the "Registration Period"). The Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein) shall
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading.
b. Rule 424 Prospectus. The Company shall, as required by applicable
securities regulations, from time to time file with the SEC, pursuant to
Rule 424 promulgated under the 1933 Act, the prospectus and prospectus
supplements, if any, to be used in connection with sales of the Registrable
Securities under the Registration Statement. The Investor and its counsel
shall have a reasonable opportunity to review and comment upon such
prospectus prior to its filing with the SEC. The Investor shall use its
reasonable best efforts to comment upon such prospectus within one (1)
Trading Day from the date the Investor receives the final version of such
prospectus.
c. Sufficient Number of Shares Registered. In the event the number of
shares available under the Registration Statement is insufficient to cover
all of the Registrable Securities, the Company shall amend the Registration
Statement or file a new registration statement (a "New Registration
Statement"), so as to cover all of such Registrable Securities as soon as
practicable, but in any event not later than ten (10) Trading Days after
the necessity therefor arises. The Company shall use it best efforts to
cause such amendment and/or New Registration Statement to become effective
as soon as practicable following the filing thereof. The Investor and its
counsel shall have a reasonable opportunity to review and comment upon any
such amendment and/or New Registration Statement prior to its filing with
the SEC. The Investor shall use its reasonable best efforts to comment
upon any such amendment and/or New Registration Statement within two (2)
Trading Days from the date the Investor receives the final version of any
such amendment and/or New Registration Statement.
3. RELATED OBLIGATIONS.
With respect to the Registration Statement and whenever any Registrable
Securities are to be registered pursuant to Section 2(b) including on any
New Registration Statement, the Company shall use its reasonable best
efforts to effect the registration of the Registrable Securities in
accordance with the intended method of disposition thereof and, pursuant
thereto, the Company shall have the following obligations:
a. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to any registration
statement and the prospectus used in connection with such registration
statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep the Registration Statement
or any New Registration Statement effective at all times during the
Registration Period, and, during such period, comply with the provisions of
the 1933 Act with respect to the disposition of all Registrable Securities
of the Company covered by the Registration Statement or any New
Registration Statement until such time as all of such Registrable
Securities shall have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in
such registration statement.
b. The Company shall permit the Investor to review and comment upon the
Registration Statement or any New Registration Statement and all amendments
and supplements thereto at least two (2) Trading Days prior to their filing
with the SEC, and not file any document in a form to which Investor
reasonably objects. The Investor shall use its reasonable best efforts to
comment upon the Registration Statement or any New Registration Statement
and any amendments or supplements thereto within two (2) Trading Days from
the date the Investor receives the final version thereof. The Company
shall furnish to the Investor, without charge any correspondence from the
SEC or the staff of the SEC to the Company or its representatives relating
to the Registration Statement or any New Registration Statement.
c. The Company shall furnish to the Investor, (i) promptly after the same
is prepared and filed with the SEC, at least one copy of such registration
statement and any amendment(s) thereto, including financial statements and
schedules, all documents incorporated therein by reference and all
exhibits, (ii) upon the effectiveness of any registration statement, ten
(10) copies of the prospectus included in such registration statement and
all amendments and supplements thereto (or such other number of copies as
the Investor may reasonably request) and (iii) such other documents,
including copies of any preliminary or final prospectus, as the Investor
may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by the Investor.
d. The Company shall use reasonable best efforts to (i) register and
qualify the Registrable Securities covered by a registration statement
under such other securities or "blue sky" laws of such jurisdictions in the
United States as the Investor reasonably requests, (ii) prepare and file in
those jurisdictions, such amendments (including post-effective amendments)
and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration
Period, (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (x) qualify to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify the
Investor who holds Registrable Securities of the receipt by the Company of
any notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the
securities or "blue sky" laws of any jurisdiction in the United States or
its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.
e. As promptly as practicable after becoming aware of such event or facts,
the Company shall notify the Investor in writing of the happening of any
event or existence of such facts as a result of which the prospectus
included in any registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
and promptly prepare a supplement or amendment to such registration
statement to correct such untrue statement or omission, and deliver ten
(10) copies of such supplement or amendment to the Investor (or such other
number of copies as the Investor may reasonably request). The Company
shall also promptly notify the Investor in writing (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed, and
when a registration statement or any post-effective amendment has become
effective (notification of such effectiveness shall be delivered to the
Investor by facsimile on the same day of such effectiveness and by
overnight mail), (ii) of any request by the SEC for amendments or
supplements to any registration statement or related prospectus or related
information, and (iii) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be appropriate.
f. The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of any
registration statement, or the suspension of the qualification of any
Registrable Securities for sale in any jurisdiction and, if such an order
or suspension is issued, to obtain the withdrawal of such order or
suspension at the earliest possible moment and to notify the Investor of
the issuance of such order and the resolution thereof or its receipt of
actual notice of the initiation or threat of any proceeding for such purpose.
g. The Company shall (i) cause all the Registrable Securities to be listed
on each securities exchange on which securities of the same class or series
issued by the Company are then listed, if any, if the listing of such
Registrable Securities is then permitted under the rules of such exchange,
or (ii) secure designation and quotation of all the Registrable Securities
on the Nasdaq SmallCap System. The Company shall pay all fees and expenses
in connection with satisfying its obligation under this Section.
h. The Company shall cooperate with the Investor to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant to
any registration statement and enable such certificates to be in such
denominations or amounts as the Investor may reasonably request and
registered in such names as the Investor may request.
i. The Company shall at all times provide a transfer agent and registrar
with respect to its Common Stock.
j. If reasonably requested by the Investor, the Company shall (i)
immediately incorporate in a prospectus supplement or post-effective
amendment such information as the Investor believes should be included
therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of
Registrable Securities being sold, the purchase price being paid therefor
and any other terms of the offering of the Registrable Securities; (ii)
make all required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment; and (iii) supplement or
make amendments to any registration statement.
k. The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by the any registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to consummate the disposition of such
Registrable Securities.
l. Within one (1) Trading Day after any registration statement which
includes the Registrable Securities is ordered effective by the SEC, the
Company shall deliver, and shall cause legal counsel for the Company to
deliver, to the transfer agent for such Registrable Securities (with copies
to the Investor) confirmation that such registration statement has been
declared effective by the SEC in the form attached hereto as Exhibit A.
m. The Company shall take all other reasonable actions necessary to
expedite and facilitate disposition by the Investor of Registrable
Securities pursuant to any registration statement.
4. OBLIGATIONS OF THE INVESTOR.
a. The Company shall notify the Investor in writing of the information the
Company reasonably requires from the Investor in connection with any
registration statement hereunder. The Investor shall furnish to the
Company such information regarding itself, the Registrable Securities held
by it and the intended method of disposition of the Registrable Securities
held by it as shall be reasonably required to effect the registration of
such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request.
b. The Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of
any registration statement hereunder.
c. The Investor agrees that, upon receipt of any notice from the Company of
the happening of any event or existence of facts of the kind described in
Section 3(f) or the first sentence of 3(e), the Investor will immediately
discontinue disposition of Registrable Securities pursuant to any
registration statement(s) covering such Registrable Securities until the
Investor's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3(f) or the first sentence of 3(e). Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to
promptly deliver shares of Common Stock without any restrictive legend in
accordance with the terms of the Purchase Agreement in connection with any
sale of Registrable Securities with respect to which an Investor has
entered into a contract for sale prior to the Investor's receipt of a
notice from the Company of the happening of any event of the kind described
in Section 3(f) or the first sentence of 3(e) and for which the Investor
has not yet settled.
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than sales or brokerage commissions,
incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and accounting
fees, and fees and disbursements of counsel for the Company, shall be paid
by the Company.
6. INDEMNIFICATION.
a. To the fullest extent permitted by law, the Company will, and hereby
does, indemnify, hold harmless and defend the Investor, each Person, if
any, who controls the Investor, the members, the directors, officers,
partners, employees, agents, representatives of the Investor and each
Person, if any, who controls the Investor within the meaning of the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934 Act")
(each, an "Indemnified Person"), against any losses, claims, damages,
liabilities, judgments, fines, penalties, charges, costs, attorneys' fees,
amounts paid in settlement or expenses, joint or several, (collectively,
"Claims") incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether
or not an indemnified party is or may be a party thereto ("Indemnified
Damages"), to which any of them may become subject insofar as such Claims
(or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact in the Registration Statement,
any New Registration Statement or any post-effective amendment thereto or
in any filing made in connection with the qualification of the offering
under the securities or other "blue sky" laws of any jurisdiction in which
Registrable Securities are offered ("Blue Sky Filing"), or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such
registration statement, or contained in the final prospectus (as amended or
supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein
any material fact necessary to make the statements made therein, in light
of the circumstances under which the statements therein were made, not
misleading, (iii) any violation or alleged violation by the Company of the
1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the
offer or sale of the Registrable Securities pursuant to the Registration
Statement or any New Registration Statement or (iv) any material violation
of this Agreement (the matters in the foregoing clauses (i) through (iv)
being, collectively, "Violations"). The Company shall reimburse each
Indemnified Person promptly as such expenses are incurred and are due and
payable, for any legal fees or other reasonable expenses incurred by them
in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not
apply to a Claim by an Indemnified Person arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person expressly
for use in connection with the preparation of the Registration Statement,
any New Registration Statement or any such amendment thereof or supplement
thereto, if such prospectus was timely made available by the Company
pursuant to Section 3(c); (ii) with respect to any preliminary prospectus,
shall not inure to the benefit of any such person from whom the person
asserting any such Claim purchased the Registrable Securities that are the
subject thereof (or to the benefit of any person controlling such person)
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected in the prospectus, as then amended or
supplemented, if such prospectus was timely made available by the Company
pursuant to Section 3(c), and the Indemnified Person was promptly advised
in writing not to use the incorrect prospectus prior to the use giving rise
to a violation and such Indemnified Person, notwithstanding such advice,
used it; (iii) shall not be available to the extent such Claim is based on
a failure of the Investor to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely
made available by the Company pursuant to Section 3(c); and (iv) shall not
apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent
shall not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Indemnified Person and shall survive the transfer of the Registrable
Securities by the Investor pursuant to Section 9.
b. In connection with the Registration Statement or any New Registration
Statement, the Investor agrees to severally and not jointly indemnify, hold
harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its
officers who signs the Registration Statement or any New Registration
Statement, each Person, if any, who controls the Company within the meaning
of the 1933 Act or the 1934 Act (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim or
Indemnified Damages to which any of them may become subject, under the 1933
Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified
Damages 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 to the Company by the
Investor expressly for use in connection with such registration statement;
and, subject to Section 6(d), the Investor will reimburse any legal or
other expenses reasonably incurred by them in connection with investigating
or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of the Investor, which consent shall not be unreasonably
withheld; provided, further, however, that the Investor shall be liable
under this Section 6(b) for only that amount of a Claim or Indemnified
Damages as does not exceed the net proceeds to the Investor as a result of
the sale of Registrable Securities pursuant to such registration statement.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Investor pursuant
to Section 9.
c. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a
Claim, such Indemnified Person or Indemnified Party shall, if a Claim in
respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as
the case may be; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified
Party and the indemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The Indemnified Party or Indemnified Person shall cooperate
fully with the indemnifying party in connection with any negotiation or
defense of any such action or claim by the indemnifying party and shall
furnish to the indemnifying party all information reasonably available to
the Indemnified Party or Indemnified Person which relates to such action or
claim. The indemnifying party shall keep the Indemnified Party or
Indemnified Person fully apprised at all times as to the status of the
defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim
or proceeding effected without its written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or condition
its consent. No indemnifying party shall, without the consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment
or enter into any settlement or other compromise which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party or Indemnified Person of a release from all
liability in respect to such claim or litigation. Following
indemnification as provided for hereunder, the indemnifying party shall be
subrogated to all rights of the Indemnified Party or Indemnified Person
with respect to all third parties, firms or corporations relating to the
matter for which indemnification has been made. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party
of any liability to the Indemnified Person or Indemnified Party under this
Section 6, except to the extent that the indemnifying party is prejudiced
in its ability to defend such action.
d. The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or Indemnified Damages are incurred.
e. The indemnity agreements contained herein shall be in addition to (i)
any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be
liable under Section 6 to the fullest extent permitted by law; provided,
however, that: (i) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any seller of Registrable Securities
who was not guilty of fraudulent misrepresentation; and (ii) contribution
by any seller of Registrable Securities shall be limited in amount to the
net amount of proceeds received by such seller from the sale of such
Registrable Securities.
8. REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a view to making available to the Investor the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of
the SEC that may at any time permit the Investor to sell securities of the
Company to the public without registration ("Rule 144"), the Company agrees
to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements and the filing of such reports
and other documents is required for the applicable provisions of Rule 144; and
c. furnish to the Investor so long as the Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting and or disclosure provisions of
Rule 144, the 1933 Act and the 1934 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 to permit the Investor to sell such securities
pursuant to Rule 144 without registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights under this Agreement shall be automatically assignable by the
Investor to any transferee of all or any portion of Registrable Securities
if: (i) the Investor agrees in writing with the transferee or assignee to
assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment; (ii) the Company
is, within a reasonable time after such transfer or assignment, furnished
with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration
rights are being transferred or assigned; (iii) immediately following such
transfer or assignment the further disposition of such securities by the
transferee or assignee is restricted under the 1933 Act and applicable
state securities laws; (iv) at or before the time the Company receives the
written notice contemplated by clause (ii) of this sentence the transferee
or assignee agrees in writing with the Company to be bound by all of the
provisions contained herein; and (v) such transfer shall have been made in
accordance with the applicable requirements of the Master Facility Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions 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 the Investor.
11. MISCELLANEOUS.
a. A Person is deemed to be a holder of Registrable Securities whenever
such Person owns or is deemed to own of record such Registrable Securities.
If the Company receives conflicting instructions, notices or elections
from two or more Persons with respect to the same Registrable Securities,
the Company shall act upon the basis of instructions, notice or election
received from the registered owner of such Registrable Securities.
b. Any notices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated
and kept on file by the sending party); or (iii) one (1) Trading Day after
deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
USURF America, Inc.
8748 Quarters Lake Road
Baton Rouge, Louisiana 70809
Telephone: (225) 922-7744
Facsimile: (225) 922-9123
Attention: David Loflin
With a copy to:
Newlan & Newlan
819 Ofice Park Circle
Lewisville, Texas 75057
Telephone: (972) 353- 3880
Facsimile: (972) 353 - 8304
Attention: Eric Newlan
If to the Investor:
Fusion Capital Fund II, LLC
222 Merchandise Mart Plaza, Suite 9-112
Chicago, IL 60654
Telephone: 312-644-6644
Facsimile: 312-644-6244
Attention: Steven G. Martin
or at such other address and/or facsimile number and/or to the attention of
such other person as the recipient party has specified by written notice
given to each other party three (3) Trading Days prior to the effectiveness
of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the
time, date, recipient facsimile number and an image of the first page of
such transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt
by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
d. The corporate laws of the State of Nevada shall govern all issues
concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of
the State of Illinois, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Illinois or any
other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Illinois. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting the City of Chicago, 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 not
personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue
of 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 for such 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. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
e. This Agreement, and the Purchase Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein.
This Agreement and the Purchase Agreement supersede all prior agreements
and understandings among the parties hereto with respect to the subject
matter hereof and thereof.
f. Subject to the requirements of Section 9, this Agreement shall inure to
the benefit of and be binding upon the permitted successors and assigns of
each of the parties hereto.
g. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical counterparts, each of which
shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
j. The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent and no rules of strict
construction will be applied against any party.
k. This Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
* * * * * *
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
THE COMPANY:
USURF AMERICA, INC.
By: /s/ David M. Loflin
Name: David M. Loflin
Title: President
BUYER:
FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS II, LLC
BY: SGM HOLDINGS CORP.
By: /s/ Steven G. Martin
Name: Steven G. Martin
Title: President
EXHIBIT A
TO REGISTRATION RIGHTS AGREEMENT
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[Date]
[TRANSFER AGENT]
[Address]
Attn: __________________
Ladies and Gentlemen:
We are counsel to USURF AMERICA, INC., a Nevada corporation (the
"Company"), and have represented the Company in connection with that
certain Common Stock Purchase Agreement (the "Common Stock Purchase
Agreement") entered into by and among the Company and FUSION CAPITAL FUND
II, LLC (the "Buyer") pursuant to which (i) the Company may sell to the
Buyer up to ___________ Dollars ($___________) of the Company's common
stock, par value $____ per share (the "Common Stock" and the shares of
Common Stock to be purchased thereunder are referred to herein as, the
"Purchase Shares"), and (ii) the Company has agreed to issue to the Buyer
_______ shares of Common Stock (the "Commitment Shares"). Pursuant to the
Common Stock Purchase Agreement, the Company also has entered into a
Warrant Agreement with the Buyer (the "Warrant Agreement") pursuant to
which the Company has issued to the Buyer 645,000 common stock purchase
warrants (the "Warrants") granting the Buyer the right to purchase from the
Company 645,000 shares of Common Stock (the "Warrant Shares"). Pursuant to
the Common Stock Purchase Agreement, the Company also has entered into a
Registration Rights Agreement with the Buyer (the "Registration Rights
Agreement") pursuant to which the Company agreed, among other things, to
register the Purchase Shares, the Commitment Shares and the Warrant Shares
under the Securities Act of 1933, as amended (the "1933 Act"). In
connection with the Company's obligations under the Common Stock Purchase
Agreement and the Registration Rights Agreement, on _____________, the
Company filed a Registration Statement (File No. 333-_____________) (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") relating to the sale of the Purchase Shares and the Commitment Shares.
In connection with the foregoing, we advise you that a member of the SEC's
staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER
TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no
knowledge, after telephonic inquiry of a member of the SEC's staff, that
any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC
and the Purchase Shares, the Commitment Shares and the Warrant Shares are
available for sale under the 1933 Act pursuant to the Registration Statement.
The Buyer has confirmed it shall comply with all securities laws and
regulations applicable to it including applicable prospectus delivery
requirements upon sale of the Commitment Shares, the Warrant Shares or the
Purchase Shares.
Very truly yours,
[Company Counsel]
By:____________________
cc: FUSION CAPITAL FUND II, LLC