Exhibit 10.02
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 13th day of June 2002, by and among MID-POWER SERVICE
CORPORATION, a Nevada corporation (the "Company") and EDWARD MIKE DAVIS, an
individual residing in the State of Nevada ("Davis").
Recitals:
A. Reference is herein made to that certain Acquisition Agreement dated
as of June 13th, 2002 (the "Acquisition Agreement"), between and among the
Company, Red Star, Inc., a Nevada corporation and Edward Mike Davis, an
individual.
B. In order to induce Davis to enter into and consummate the
transactions contemplated by the Acquisition Agreement, the Company has agreed
to immediately register for resale 17,125,365 shares of the common stock issued
to Davis under the Acquisition Agreement (the "Mid-Power Stock") on the terms
and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the foregoing recitals and
the mutual covenants contained herein, the sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, do hereby agree
as follows:
Section 1. Definitions and References.
(a) When used in this Agreement, the following terms shall have the
respective meanings assigned to them in this section 1 or in the sections,
subsections or other subdivisions referred to below:
"Acquisition Agreement and Plan of Merger" shall mean certain
Acquisition Agreement and Plan of Merger dated as of June 13, 2002
between and among the Company, Red Star, Inc., a Nevada corporation and
Edward Mike Davis, an individual.
"Agreement" shall mean this Agreement, as hereafter changed,
modified or amended in accordance with the terms hereof.
"Common Stock" shall mean the common stock of the Company,
$0.001 par value per share.
"Company" shall have the meaning assigned to it in the
introductory paragraph hereof.
"Company Indemnified Parties" shall have the meaning assigned
to it in section 5(b).
"Davis" shall have the meaning assigned to it in the
introductory paragraph hereof.
"Demand Registration" shall have the meaning assigned to it in
section 2.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated under such act.
"Filing Date" shall have the meaning assigned to it in
Section 2.
"Holder Indemnified Parties" shall have the meaning assigned
to it in section 5(a).
"Mid-Power Stock" shall have the meaning assigned to such term
in paragraph B of the Recitals hereto.
"Person" shall mean any individual, corporation, partnership,
joint venture, limited partnership, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Registrable Securities" shall mean the Mid-Power Stock.
"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with the registration rights
granted hereunder, including (without limitation) all registration,
filing, listing and NASD fees, fees and expenses of compliance with
securities and blue-sky laws, all word processing, duplicating,
printing and engraving expenses, messenger, telephone and delivery
expenses, and fees and disbursements of counsel for the Company, of its
independent certified public accountants, and any of its independent
reserve engineers, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable
Securities being registered, and fees and disbursements of underwriters
(excluding discounts and commissions); provided, that Registration
Expenses shall not include any Selling Expenses (except for any fees
incurred by Davis in connection with legal fees incurred in order to
dispose of the Registrable Securities). Without limiting the generality
of any other provision hereof, no holder of Registrable Securities
shall be responsible for any allocation of general and administrative
(including all employee and compensation expenses) expenses incurred by
the Company in connection with an offering.
"SEC" shall mean the Securities and Exchange Commission (or
any successor body thereto).
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations under such act.
"Selling Expenses" shall mean any selling commissions and
stock transfer taxes attributable to sales of Registrable Securities
and the fees and expenses of counsel for Davis.
(b) All references in this Agreement to sections, subsections and other
subdivisions refer to corresponding sections, subsections and other subdivisions
of this Agreement unless expressly provided otherwise. Titles appearing at the
beginning of any of such subdivisions are for convenience only and shall not
constitute part of such subdivisions and shall be disregarded in construing the
language contained herein. The words "this Agreement," "this instrument,"
"herein," "hereof," "hereby," "hereunder" and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly
so limited. Words in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise requires. Pronouns in masculine,
feminine and neuter genders shall be construed to include any other gender.
Section 2. Demand Registration Rights.
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(a) The Company agrees that within 30 days from the Financial Statement
Filing Date, as set forth in Section 6.11 of the Acquisition Agreement (the
"Filing Date"), that it will cause to be filed with the SEC a registration by
the Company under the Securities Act of all the Registrable Securities (a
"Demand Registration").
Section 3. Registration Procedures.
(a) On or before the Filing Date, the Company will:
(i) prepare and file with the SEC a registration statement on
the appropriate form with respect to such Registrable Securities, and
use its reasonable best efforts to cause such registration statement to
become and remain effective as soon as reasonably practicable after the
filing thereof (provided, that before filing a registration statement
or prospectus or any amendments or supplements thereto, the Company
will furnish copies of all such documents proposed to be filed to Davis
covered by such registration statement for review by Davis, his
attorney(s), accountant(s) or other professionals retained by Davis);
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the earlier of (1) such time as all of such
Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the applicable prospectus
delivery period) or (2) 180 days after the effective date of such
registration statement, except with respect to any registration
statement filed pursuant to Rule 415 under the Securities Act, in which
case the Company shall use its best efforts to keep such registration
statement effective until such time as all of the Registrable
Securities covered thereby cease to be Registrable Securities; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration
statement;
(iii) notify Davis promptly after the Company causes such
registration statement to be filed with the SEC;
(iv) furnish to Davis, such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including, without
limitation, each preliminary prospectus) and such other documents as
such Davis may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by Davis (it being
understood that the Company consents to the use of the prospectus and
any amendment or supplement thereto by Davis);
(v) use its reasonable best efforts to register or qualify
such Registrable Securities under such other securities or blue-sky
laws of such jurisdictions within the United States as Davis reasonably
requests, to keep such registration or qualifications in effect for so
long as such registration statement remains in effect, and do any and
all other acts and things that may be reasonably necessary or advisable
to enable such Seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by Davis (provided
that the Company will not be required to qualify generally to do
business or subject itself to any general service of process in any
jurisdiction where it is otherwise not then so subject);
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(vi) notify Davis, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event (including those set forth in clauses (1)
through (6) of paragraph (vii) below) that requires the making of any
change in the prospectus included in such registration statement, so
that such document will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and at the
request of Davis, the Company will promptly prepare and furnish to
Davis, a reasonable number of copies of a supplement or amendment to
such prospectus so that such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(vii) The Company will also notify Davis promptly, and (if
requested by Davis) confirm such notice in writing, (1) when a
prospectus or any prospectus supplement or post-effective amendment has
been filed, and with respect to a registration statement or any
post-effective amendment, when the same has become effective under the
Securities Act and each applicable state law, (2) of any request by the
SEC or any other federal or state governmental authority for amendments
or supplements to a registration statement or related prospectus or for
additional information, (3) of the issuance by the SEC of any stop
order suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (4) if at any time the
representations or warranties of the Company or any subsidiary
contained in any agreement (including any underwriting agreement)
contemplated hereby cease to be true and correct in any material
respect, (5) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (6) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be
appropriate;
(viii) use its reasonable best efforts to immediately cause
all such Registrable Securities to be listed on each securities
exchange or exchanges, automated quotation system or over-the-counter
market upon which securities of the Company of the same class are then
listed;
(ix) enter into such customary agreements (including, without
limitation, underwriting agreements in customary form, substance and
scope) and take all such other action as Davis reasonably requests in
order to expedite or facilitate the disposition of such Registrable
Securities;
(x) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC and applicable state
securities authorities;
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in
such registration statement for sale in any jurisdiction, the Company
will use its reasonable best efforts promptly to obtain the withdrawal
of such order;
(xii) use its reasonable best efforts to cause such
Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable Davis thereof to consummate
the disposition of such Registrable Securities;
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(xiii) use its reasonable best efforts to obtain a signed
counterpart of a comfort letter from the Company's public accountants
in customary form and covering such matters of the type customarily
covered by comfort letters with respect to offerings of the type being
made pursuant to the registration statement as Davis shall reasonably
request and an opinion of counsel for the Company covering such matters
with respect to such registration statement as are customarily covered
in opinions of issuer's counsel and delivered to the underwriters in
underwritten public offerings of securities;
(xiv) the Company shall make available for inspection by Davis
and any attorney, accountant or other professional retained by the
Davis (in this subsection collectively referred to as "inspectors"),
all financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonable necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such inspectors in connection with such
registration statement;
(xv) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration agreement from and after a date
not later than the effective date of such registration.
(b) Davis will be deemed to have agreed as follows:
(i) upon receipt of notice from the Company of the happening
of any event of the kind described in section 3(a)(vi), Davis will
forthwith discontinue disposition of any such Registrable Securities
until Davis receives copies of the supplemented or amended prospectus
contemplated by section 3(a)(vi), or until he is advised in writing by
the Company that the use of the applicable prospectus may be resumed,
and he has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
prospectus (it being the agreement of the parties hereto, however, that
the obligation of the Company with respect to maintaining the subject
registration statement current and effective shall be extended by a
period of days equal to the period that Davis is required by this
section 3(b)(i) to discontinue disposition of such Registrable
Securities); and
(ii) furnish to the Company such information regarding Davis,
the Registrable Securities held by Davis, and the intended method of
disposition thereof as the Company shall reasonably request and as
shall be reasonably required in connection with the preparation of the
applicable registration statement and other actions taken by the
Company under this Agreement, and it shall be a condition precedent to
the obligation of the Company to take any action pursuant to this
Agreement in respect of the Registrable Securities owned by Davis that
such information has been furnished to the Company by Davis.
Section 4. Expenses of Registration. The Company shall pay all
Registration Expenses in connection with each registration effected pursuant to
sections 2. All Selling Expenses incurred by Davis in connection with a
registration effected pursuant to the terms hereof shall be borne by such
Seller, except for any and all opinions that Davis may be required to obtain in
connection with the sale of the Registrable Securities which in such case shall
be borne by the Company.
Section 5. Indemnification.
(a) The Company shall indemnify and hold harmless, with respect to any
registration statement filed by it, to the full extent permitted by law, Davis
and his agents, heirs and assigns, and each other Person, if any, who controls
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Davis within the meaning of Section 15 of the Securities Act (collectively,
"Holder Indemnified Parties") against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation), joint or several, to
which any such Holder Indemnified Party may become subject under the Securities
Act, the Exchange Act, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (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 contained in
any registration statement in which such Registrable Securities were included as
contemplated hereby or any omission or alleged omission to state therein 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, final or summary prospectus,
together with the documents incorporated by reference therein (as amended or
supplemented if the Company shall have filed with the SEC any amendment thereof
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) any violation by the Company of any federal,
state or common law rule or regulation applicable to the Company and relating to
action of or inaction by the Company in connection with any such registration,
and in each such case, the Company shall reimburse each such Holder Indemnified
Party for any reasonable legal or other expenses incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability, expense, action or proceeding; provided, however, that the Company
shall not be liable to any such Holder Indemnified Party in any such case to the
extent, that any such loss, claim, damage, liability or expense (or action or
proceeding, whether commenced or threatened, in respect thereof) arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment thereof or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder Indemnified Party for use in the
preparation thereof. Such indemnity and reimbursement of expenses and other
obligations shall remain in full force and effect regardless of any
investigation made by or on behalf of the Holder Indemnified Parties and shall
survive the transfer of such securities by such Holder Indemnified Parties.
(b) Davis shall indemnify and hold harmless, to the fullest extent
permitted by law, the Company, its directors, officers, employees and agents,
and each Person who controls the Company (within the meaning of Section 15 of
the Securities Act) (collectively, "Company Indemnified Parties") against all
losses, claims, damages, liabilities and expenses to which any Company
Indemnified Party may become subject under the Securities Act, the Exchange Act,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (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 contained in any registration
statement in which such Registrable Securities were included or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus, together with the documents
incorporated by reference therein (as amended or supplemented if the Company
shall have filed with the SEC any amendment thereof or supplement thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading to the
extent in the cases described in clauses (i) and (ii), that such untrue
statement or omission was furnished in writing by such Holder for use in the
preparation thereof, or (iii) any violation by Davis of any federal, state or
common law rule or regulation applicable to Davis and relating to action of or
inaction by Davis in connection with any such registration; provided, that each
Davis' liability under such indemnification shall be limited to the sales
proceeds from the sale of the Company's securities owned by Davis and sold by
Davis pursuant to such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, and in each such case,
Davis shall reimburse each such Company Indemnified Party for any reasonable
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legal or other expenses incurred by any of them in connection with investigating
or defending any such loss, claim, damage, liability, expense, action or
proceeding. Such indemnity obligation shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company Indemnified
Parties (except as provided above) and shall survive the transfer of such
securities by such Holder.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) of written notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing with respect to which a claim
for indemnification may be made pursuant to this section 5, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the threat or
commencement thereof; provided, however, that the failure to so notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. If any such claim or action
referred to under subsection (a) or (b) is brought against any indemnified party
and it then notifies the indemnifying party of the threat or commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense of any such claim or
action, the indemnifying party shall not be liable to such indemnified party
under this section 5 for any legal expenses of counsel or any other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation unless the indemnifying
party has failed to assume the defense of such claim or action or to employ
counsel reasonably satisfactory to such indemnified party. Under no
circumstances will the indemnifying party be obligated to pay the fees and
expenses of more than one law firm for all indemnified parties. The indemnifying
party shall not be required to indemnify the indemnified party with respect to
any amounts paid in settlement of any action, proceeding or investigation
entered into without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall consent
to the entry of any judgment or enter into any settlement without the consent of
the indemnified party unless (i) such judgment or settlement does not impose any
obligation or liability upon the indemnified party other than the execution,
delivery or approval thereof, and (ii) such judgment or settlement includes as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a full release and discharge from all liability in respect
of such claim for all Persons that may be entitled to or obligated to provide
indemnification or contribution under this section 5.
(d) Indemnification similar to that specified in the preceding
subsections of this section 5 (with appropriate modifications) shall be given by
the Company and Davis with respect to any required registration or qualification
of securities under any state securities or blue-sky laws.
(e) If the indemnification provided for in this section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) referred to in subsection (a) or (b) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party on the other in connection with the statements,
omissions, actions or inactions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
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a material fact relates to information supplied by the indemnifying party or the
indemnified party, any action or inaction by any such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement, omission, action or inaction. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses (or actions or proceedings in respect thereof) pursuant to this
subsection (e) shall be deemed to include, without limitation, any reasonable
legal or other expenses incurred by such indemnified party in connection with
investigating or defending any such action or claim (which shall be limited as
provided in subsection (c) if the indemnifying party has assumed the defense of
any such action in accordance with the provisions thereof), which is the subject
of this subsection (e). No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Promptly after receipt by an indemnified party under this
subsection (e) of written notice of the commencement of any action, suit,
proceeding, investigation or threat thereof made in writing with respect to
which a claim for contribution may be made against an indemnifying party under
this subsection (e), such indemnified party shall, if a claim for contribution
in respect thereof is to be made against an indemnifying party, give written
notice to the indemnifying party in writing of the commencement thereof (if the
notice specified in subsection (c) has not been given with respect to such
action); provided, however, that the failure to so notify the indemnifying party
shall not relieve it from any obligation to provide contribution that it may
have to any indemnified party under this subsection (e) except to the extent
that the indemnifying party is actually prejudiced by the failure to give
notice. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this section were determined by pro rata allocation or
by any other method of allocation that does not take account the equitable
considerations referred to in the immediately preceding paragraph. If
indemnification is available under this section 5, the indemnifying parties
shall indemnify each indemnified party to the fullest extent provided in
subsections (a) and (b), without regard to the relative fault of said
indemnifying party or any other equitable consideration provided for in this
subsection. The provisions of this subsection shall be in addition to any other
rights to indemnification or contribution that any indemnified party may have
pursuant to law or contract, shall remain in full force and effect regardless of
any investigation made by or on behalf of any indemnified party, and shall
survive the transfer of securities by any such party.
Section 7. Rule 144. The Company covenants to Davis that, to the extent
that the Company shall be required to do so under the Exchange Act, the Company
shall (a) timely file the reports required to be filed by it under the Exchange
Act or the Securities Act (including, but not limited to, the reports under
Sections 12, 13 and/or 15(d) of the Exchange Act referred to in subparagraph (c)
(1) of Rule 144 adopted by the SEC under the Securities Act) and the rules and
regulations adopted by the SEC thereunder. Upon the request of Davis, the
Company shall deliver to Davis a written statement as to whether it has complied
with such requirements.
Section 9. Other Existing or Subsequent Registration Rights.
(a) The Company represents and warrants that other than the
registration rights granted under this Agreement and provided for in Attachment
"A" to this Agreement, the Company is not currently a party to any other
agreement whereby it accords any Person any demand or participatory registration
rights with respect to such Person's Common Stock.
(b) The Company will not agree to any amendment or other modification
to any agreement granting registration rights to any other person without having
first received the written consent of Davis.
(c) The Company will not hereafter grant to any Person, Demand
Registration rights without the prior written consent of Davis. The Company will
not hereafter grant to any Person any participatory registration rights that are
inconsistent with or violate the rights granted to Davis under this Agreement.
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Section 10. Miscellaneous.
(a) Mid-Power and Davis agree as follows:
(i) if any Registrable Securities are being registered in any
registration pursuant to this Agreement, Davis will comply with all
anti-stabilization, manipulation and similar provisions of Section 10
of the Exchange Act, as amended, and any rules promulgated thereunder
by the SEC and, at the request of the Company, will execute and deliver
to the Company an appropriate agreement to such effect; and
(ii) at the end of any period during which the Company is
obligated to keep a registration statement current and effective as
described herein, Davis shall discontinue sales thereof pursuant to
such registration statement upon execution of an agreement with the
Company (subject to the sole discretion Davis) provides Davis the
proper method to continue to sell Davis' remaining Registrable
Securities.
(b) All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by the internal law, and not
the law of conflicts, of the state of Nevada.
(c) All covenants and agreements in this Agreement by or on behalf of
any of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto. In addition, the rights and
obligations under this Agreement shall automatically be transferred to and
binding on any transferee or assignee of the Registrable Securities; provided,
that (i) the Company is, within a reasonable time after such transfer, furnished
with written notice of the name and address of such transferee or assignee and
the Registrable Securities with respect to which such registration rights are
being transferred or assigned, (ii) such transferee or assignee agrees in
writing to be bound by and subject to the terms and conditions of this
Agreement, and (iii) the transfer and assignment of the subject Registrable
Securities is in compliance with the Securities Act and applicable state
securities laws or an exemption from the registration requirements of the
Securities Act and applicable state securities laws.
(d) This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter herein contained. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to
the registration rights granted by the Company to Davis for the Registrable
Securities other than as provided for in the Acquisition Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(e) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or sent
by reputable express courier service (charges prepaid), or mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid, or sent by telefax, to the parties at the following address (or to such
other address or to the attention of such other person as the recipient party
has specified by prior like notice to the sending party):
If to the Company, to: Mid-Power Service Corporation
3800 Howard Hughes Parkway
Suite 860
Las Vegas, Nevada 89109
Attn: President
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If to Davis, to: Edward Mike Davis
200 Rancho Circle
Las Vegas, Nevada 89107-4601
(f) If any provision of this Agreement is held to be unenforceable,
this Agreement shall be considered divisible and such provision shall be deemed
inoperative to the extent it is deemed unenforceable, and in all other respects
this Agreement shall remain in full force and effect; provided, however, that if
any such provision may be made enforceable by limitation thereof, then such
provision shall be deemed to be so limited and shall be enforceable to the
maximum extent permitted by applicable law.
(g) This Agreement may be executed by the parties hereto in any number
of counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same agreement. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed by
all, the parties hereto.
(h) Davis, in addition to being entitled to exercise all rights granted
by law, including recovery of damages, will be entitled to specific performance
of his rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of breach by
it of the provisions of this Agreement and hereby agrees to waive (to the extent
permitted by law) the defense in any action for specific performance that a
remedy of law would be adequate.
(i) In any action or proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense,
the successful party shall be entitled to recover reasonable attorneys' fees in
addition to any other available remedy.
(j) The Company agrees to remove any stop-transfer orders and similar
instructions and any legends on certificates representing Registrable Securities
describing transfer restrictions applicable to such securities upon the sale of
such securities pursuant to an effective Registration Statement under the
Securities Act or in accordance with the provisions of Rule 144 under the
Securities Act.
(k) This Agreement may be amended, modified, supplemented, restated or
discharged (and provisions hereof may be waived) only by an instrument in
writing signed by the Company and Davis.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MID-POWER SERVICE CORPORATION
/s/ James W. Scott
--------------------------------
James W. Scott, President
/s/ Edward Mike Davis
--------------------------------
Edward Mike Davis
10