EXHIBIT 10.1
FORM OF AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement, dated as of
February 2, 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 (formerly known as U.S. Telesis Holdings,
Inc.("UST")) and the Investors have previously entered into that certain
Registration Rights Agreement, dated as of May 4, 2005, by and among the Company
and the investors listed on Exhibit A thereto (the "PRIOR AGREEMENT");
WHEREAS, Catcher, Inc., a Delaware corporation ("CATCHER"), issued an
aggregate of 447,749.5 shares of its capital stock in the form of its Series A
Preferred Stock and its common stock to certain founders set forth on Exhibit A
to the Prior Agreement (the "FOUNDERS");
WHEREAS, Catcher engaged in a private offering to certain private
investors (the "PRIVATE INVESTORS") of 162,013 Units consisting in the aggregate
of 324,026 shares of Catcher's common stock and Series A Warrants and Series B
Warrants (collectively, the "ORIGINAL WARRANTS") to purchase an aggregate of
324,026 additional shares of Catcher's common stock (the "Private Offering");
WHEREAS, the Company (then know as UST) and the Purchasers previously
entered into a Stock Exchange Agreement dated May 4, 2005 (the "EXCHANGE
AGREEMENT") pursuant to which the Company acquired Catcher by (a) issuing its
Series A Preferred Stock (the "PREFERRED STOCK") to certain of the Founders and
its common stock (the "COMMON STOCK") to the Private Investors and certain other
Founders (such Private Investors and Founders, hereinafter referred to as the
"PURCHASERS") and (b) assuming the obligation under the Original Warrants to
issue the Company's common stock;
WHEREAS, concurrently with the entering into of this Agreement, the
Company is issuing Series C Warrants (the "NEW WARRANTS", and collectively with
the Original Warrants, the "WARRANTS") to purchase an aggregate of _________
additional shares of the Company's Common Stock;
WHEREAS, the Prior Agreement provides in Section 10.6 thereof that the
Prior Agreement may be amended with the written consent of the Company and the
holders of a majority of the Registrable Securities (as defined in the Prior
Agreement);and
WHEREAS, the Company and holders of a majority of the Registrable
Securities desire to amend and restate the Prior Agreement as set forth herein.
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 "Holder" shall mean any person owning or having
the right to acquire Registrable Securities or any permitted transferee of a
Holder.
1.3 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.
1.4 The term "Registrable Securities" shall mean (a) the Common
Stock (including the Common Stock issuable upon exercise of the Warrants) and
(b) the Common Stock issuable upon conversion of the Preferred Stock, provided,
however, that 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.
1.5 The term "Selling Holders" shall mean the Holders selling
their Registrable Securities.
1.6 The term "Securities Act" shall mean the Securities Act of
1933, as amended.
2. REGISTRATION RIGHTS. The Company agrees that:
2.1 Subject to the conditions of this Section 2, if the Company
shall receive, at any time after the consummation of one or more equity
financings by the Company after the date hereof in which the Company receives
gross proceeds of at least $10,000,000 in the aggregate (the "NEXT FINANCING"),
a written request from the Holders of a majority or more of the Registrable
Securities then outstanding (the "INITIATING HOLDERS") that the Company file a
registration statement under the Securities Act covering the registration of at
least twenty-five percent (25%) of the then outstanding Registrable Securities
representing an anticipated aggregate offering price (net of underwriting
discounts and commissions) in excess of $5,000,000, then the Company shall,
within twenty (20) days of the receipt thereof, give written notice of such
request to all Holders, and subject to the limitations of this Section 2, use
commercially reasonable efforts to effect, as soon as practicable, the
registration under the Securities Act of all Registrable Securities that the
Holders request to be registered in a written request received by the Company
within twenty (20) days of the mailing of the Company's notice pursuant to this
Section 2.1.
2.2 Notwithstanding any other provision of this Section 2, if
the Company determines, based on advice of legal counsel that it is desirable in
order to comply with the requirements of the Commission that the number of
securities to be registered (including Registrable Securities) in such
registration be reduced, then the Company shall so advise all Holders of
Registrable Securities that would otherwise be registered pursuant hereto, and
the number of shares that may be included in the registration shall be allocated
to as follows: First, to the Holders of the securities sold in the Next
Financing; and Second, to the holders of Registrable Securities under this
Agreement and to each other holder of the Company's securities that the Company
has granted, prior to the date hereof, or does grant, after the date hereof,
rights to registration, on a pro rata basis (as nearly as practicable) based on
the number of Registrable Securities or other securities held by all such
holders, provided that no Registrable Securities held by any officers or
directors of the Company shall be included in such registration unless and until
all Registrable Securities requested to be included in such registration are in
fact so included.
2.3 In the event that (i) less than 70% of the Registrable
Securities requested to be registered by the Holders thereof under Section 2.1
above have been included in the registration statement to be filed in connection
with the Company's Next Financing (the "New Financing Registration Statement")
(such excluded securities, hereinafter referred to as the "Excluded Registrable
Securities") and (ii) the Company fails to file an additional registration
statement covering such Excluded Registrable Securities (the "Additional
Registration Statement") within ninety (90) days following the effectiveness of
the New Financing Registration Statement, the Company shall pay to each Private
Investor, at the election of each Private Investor, either (A) each Private
Investor's prorated portion of an aggregate of $45,000 or (B) each Private
Investor's prorated portion of additional Original Warrants and shares of Common
Stock that would have been purchasable in the Private Offering for an aggregate
of $45,000. Additionally, for every thirty (30) days that the Company continues
to fail to file the Additional Registration Statement (prorated for partial
periods), the Company shall pay to each Private Investor, at
the election of each Private Investor, either (A) each Private Investor's
prorated portion of an aggregate of $45,000 or (B) each Private Investor's
prorated portion of additional Original Warrants and shares of Common Stock that
would have been purchasable in the Private Offering for an aggregate of $45,000.
In each case, a Private Investor's pro rata amount shall be calculated based
upon such Private Investor's percentage ownership of the total number of
Registrable Securities originally issued in the Private Offering.
2.4 If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2 and the Company shall include such information in the written
notice referred to in Section 2.1 above. In such event the right of any Holder
to include its Registrable Securities in such registration shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company (which underwriter or underwriters shall be
reasonably acceptable to a majority in interest of the Initiating Holders).
Notwithstanding any other provision of this Section 2, if the underwriter
advises the Company that marketing factors require a limitation of the number of
securities underwritten (including Registrable Securities), then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
underwritten pursuant hereto, and the number of shares that may be included in
the underwriting shall be allocated to the Holders of such Registrable
Securities on the same basis as set forth in Section 2.2 above. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the registration.
2.5 The Company shall not be required to effect a registration
pursuant to this Section 2:
(a) after the Company has effected one (1) registration
pursuant to this Section 2, and such registration has been declared or ordered
effective;
(b) if the Company shall furnish to Holders requesting a
registration pursuant to this Section 2, a certificate signed by the Company's
Chief Executive Officer or Chairman of the Board stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration to be
effected at such time, in which event the Company shall have the right to defer
such filing for a period of not more than one hundred twenty (120) days after
receipt of the request of the Initiating Holders, provided that such right to
delay a request shall be exercised by the Company not more than once in any
twelve (12)-month period and provided further, that the Company shall not
register any other of its shares during such one hundred twenty (120) day
period;
(c) during the period starting with the date thirty (30)
days prior to the Company's good faith estimate of the date of the filing of,
and ending on a date seventy-five (75) days following the effective date of, any
registration of Company securities (other than on Form S-8 or similar forms); or
(d) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to service in
such jurisdiction and except as may be required under the Securities Act.
2.6 If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock or other
securities under the Securities Act in connection with the public offering of
such securities (other than a registration relating solely to the sale of
securities to participants in a Company stock plan, a registration relating to a
corporate reorganization or other transaction under Rule 145 of the Act, a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities that are also being registered), the Company shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of each Holder given within twenty (20) days after mailing of
such notice by the Company, the Company shall, subject to the provisions of
Sections 2.2
and 2.4 above, use its commercially reasonable efforts to cause to be registered
under the Securities Act all of the Registrable Securities that each such Holder
has requested to be registered.
2.7 The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 2 prior to the effectiveness
of such registration whether or not any Holder has elected to include securities
in such registration. The expenses of such withdrawn registration shall be borne
by the Company in accordance with Section 5 hereof.
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 (A) two
(2) years from the date of this Agreement, or (B) two (2) years from the date
the Investors convert the Warrants to Common Stock, or (C) such time that all of
such Registrable Securities 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 its 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 (i) includes any prospectus required by Section
10(a)(3) of the Securities Act or (ii) 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 (i) and (ii) 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.
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 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 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 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 registered pursuant hereto and with the CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
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 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 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 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 so delivered, respectively, to
the effect that such registration statement has become effective under the
Securities Act and such Registrable Securities 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.
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 of any Selling Holder that such Holder shall furnish to the Company
such information regarding the Holder, the Registrable Securities 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.
5. REGISTRATION EXPENSES. The Company shall bear and pay all
Registration Expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to registrations pursuant
for each Holder, but excluding underwriting discounts and commissions relating
to Registrable Securities and excluding any costs to any of the Holders,
including without limitation, for accounting, financial, legal or other
professional advisors to any of the Holders.
6. UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, in addition
to the limitations set forth in Section 2.4 above, the Company shall not be
required to include any of the Holders' Registrable Securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled
to select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company.
7. DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any registration hereunder
as the result of any controversy that might arise with respect to the
interpretation or implementation of this Article.
8. INDEMNIFICATION. In the event that any Registrable Securities are
included in a registration statement under this Agreement:
8.1 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 8.1.
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.
8.2 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 8.2, in connection with investigating or defending any such loss, claim,
damage, liability, or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 8.2 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.
8.3 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 8.
8.4 If the indemnification provided for in this Section 8 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.
8.5 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.
8.6 The obligations of the Company and Holders under this
Section 8 shall survive the termination of this Agreement.
9. 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:
9.1 make and keep public information available, as those terms
are understood and defined in Rule 144, at all times;
9.2 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
9.3 furnish to any Holder, so long as the Holder owns any
Registrable Securities, 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.
10. GENERAL.
10.1 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.
10.2 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.
10.3 GOVERNING LAW. NOTWITHSTANDING THE PLACE WHERE THIS
AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY
AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE
WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO SUCH STATE'S
PRINCIPLES OF CONFLICTS OF LAW. IN THE EVENT THAT A JUDICIAL PROCEEDING IS
NECESSARY, THE SOLE FORUM FOR RESOLVING DISPUTES ARISING OUT OF OR RELATING TO
THIS AGREEMENT IS THE SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE
COUNTY OF NEW YORK OR THE FEDERAL COURTS FOR SUCH STATE AND COUNTY, AND ALL
RELATED APPELLATE COURTS AND THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE
JURISDICTION OF SUCH COURTS AND AGREE TO SAID VENUE. THE PARTIES each
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. THE PARTIES HEREBY WAIVE ANY RIGHT TO REQUEST A TRIAL BY
JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT
COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
10.4 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 (iii) 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.
39526 Charlestown Pike
Hamilton, Virginia 20158
Attention: Charles Sander
Copy to: Morrison & Foerster, LLP
12531 High Bluff Drive, Suite 100
San Diego, California 92130
Attention: Jeremy D. Glaser
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.
10.5 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, including without limitation, the Prior Agreement., which
Prior Agreement is amended and restated to read in its entirety as set forth in
this Agreement.
10.6 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; provided, that this agreement may be amended
with the consent of the holders of less than all Registrable 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 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.
10.7 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.
10.8 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.
10.9 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.
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IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
CATCHER HOLDINGS, INC.
By:________________________________
Name: Charles Sander
Title: President
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF INVESTORS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
AGREED AND ACCEPTED:
By: _________________________________
Name:
Title:
EXHIBIT A
INVESTORS