Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration
Rights Agreement (this "Agreement") is made and
entered into as of August ___, 2005, by and between Eagle Broadband, Inc., a
corporation organized under the laws of the
State of Texas (the "Company"), and
the person executing the signature page
(the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof, by and between the Purchaser and the Company (as
amended, modified or supplemented
from time to time, the
"Securities
Purchase
Agreement").
The Company and the Purchaser hereby agree as follows:
1. Definitions. Capitalized terms used and
not otherwise defined herein that are
defined in the Securities Purchase Agreement shall have the
meanings given such
terms in the Securities Purchase Agreement. As used in this Agreement, the
following terms shall have the following
meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of the Company's common stock, par
value $.001 per share.
"Effectiveness Date"
means with respect to
the Registration
Statement, the date the Commission deems
such Registration Statement effective.
"Effectiveness Period"
shall have the
meaning set forth in
Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date"
means, with respect to the Registration
Statement required to be filed hereunder,
a date no later than
10 business days
following the date hereof.
"Holder" or
"Holders" means the Purchaser or any of its
affiliates or transferees to the extent any
of them hold Registrable Securities.
"Indemnified Party"
shall have the meaning set forth in
Section 5(c).
"Indemnifying Party"
shall have the meaning set forth in
Section 5(c).
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether
commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as
part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented
by any prospectus
supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration
Statement,
and all other
amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or
deemed to be incorporated by reference in
such Prospectus.
<PAGE>
"Registrable
Securities" means the
shares of Common Stock
issued pursuant to the Securities Purchase
Agreement.
"Registration
Statement" means each
registration
statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all
material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"Rule 144"
means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended
from time to time,
or any similar rule or regulation
hereafter adopted by the Commission having
substantially the same effect as such
Rule.
"Rule 415"
means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended
from time to time,
or any similar rule or regulation
hereafter adopted by the Commission having
substantially the same effect as such
Rule.
"Rule 424"
means Rule 424 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended
from time to time,
or any similar rule or regulation
hereafter adopted by the Commission having
substantially the same effect as such
Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Purchase
Agreement" means the
agreement between
the parties hereto calling for the issuance
by the Company of Common Stock.
"Trading Market" means
any of the NASD OTC Bulletin Board or
the American Stock Exchange.
2.
Registration.
(a) On or prior to the Filing Date the Company shall prepare and file
with
the Commission a Registration Statement on an appropriate form
covering
the resale of the
Registrable
Securities
for an offering to
be
made on a
continuous basis
pursuant to Rule 415. The Company shall use its
reasonable
commercial
efforts to cause the
Registration
Statement to be
declared
effective under the Securities Act as
promptly as possible after
the filing
thereof. The Company shall use its reasonable commercial
efforts
to keep the Registration Statement continuously effective under the
Securities
Act until the date
which is the
earlier date of when (i) all
Registrable
Securities have been
sold or (ii) all
Registrable
Securities
may be sold
immediately
without registration under the Securities Act
pursuant to Rule
144, as determined by the counsel to the Company pursuant
to a written
opinion letter to such effect,
addressed to the Company's
transfer agent
and the affected Holders (the "Effectiveness Period").
<PAGE>
(b) If the
Registration Statement
is not filed on or prior to the
Filing
Date the Company shall pay to each Holder an amount in cash,
as
liquidated
damages and not as a
penalty, equal to 1%
of such
Purchaser's
purchase price
of the Company Common Stock. If the Registration Statement
is not
filed on or prior to 30 calendar days from the date of this
Agreement
(such failure or
breach being referred to as an "Event," and the
date on which
such Event occurs,
being referred to as "Event Date"), then
until the
applicable Event is
cured, the Company
shall pay to each Holder
an amount in
cash, as liquidated damages and not as a penalty, equal to 4%
of such
Purchaser's
purchase price of the Company Common Stock for such
thirty (30) day
period (prorated
for partial
period), which liquidated
damage
amount shall increase to 5% for each subsequent 30 day period
(prorated for
partial periods). While such Event continues, such liquidated
damages shall be
paid not less often than each thirty (30) days.
(c) Within five (5)
business days of the Effectiveness Date, the
Company
shall cause its counsel to issue a blanket opinion in the form
attached
hereto as Schedule A, to the transfer agent stating that the
shares
are subject to an effective registration statement and can be
reissued free of
restrictive legend
upon notice of a sale by the Purchaser
and confirmation by the Purchaser that
it has complied with the prospectus
delivery
requirements,
provided that the Company has not advised the
transfer
agent orally or in
writing that the
opinion has been
withdrawn.
Copies of the
blanket opinion required by this Section 2(c) shall be
delivered to the
Purchaser within the time frame set forth above.
3. Registration
Procedures. If and
whenever the Company is required by the
provisions hereof to effect the
registration of any Registrable Securities under
the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission the Registration Statement
with
respect to such Registrable Securities, respond as promptly as
possible
to any comments received from the Commission, and use its
commercially
reasonable
efforts to cause the
Registration
Statement to
become and
remain effective
for the Effectiveness Period with respect
thereto,
and promptly
provide to the
Purchaser copies of
all filings and
Commission
letters of comment relating thereto;
(b) prepare
and file with the Commission such amendments and
supplements
to the Registration Statement and the Prospectus used in
connection
therewith as may be
necessary to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities
covered by the Registration Statement and to keep such
Registration
Statement effective
until the expiration of the Effectiveness
Period;
<PAGE>
(c) furnish to the Purchaser such number of copies of the
Registration
Statement and
the Prospectus
included therein
(including each preliminary
Prospectus)
as the Purchaser reasonably may request to facilitate the
public sale or
disposition of the
Registrable
Securities
covered by the
Registration
Statement;
(d) use its commercially reasonable efforts to register or qualify
the
Purchaser's
Registrable
Securities covered by
the Registration
Statement
under the
securities or "blue
sky" laws of such
jurisdictions within
the
United States as
the Purchaser may reasonably request, provided, however,
that the
Company shall not for any such
purpose be
required to qualify
generally to
transact business as a foreign corporation in any jurisdiction
where it is not
so qualified or to consent to general service of process in
any such
jurisdiction;
(e) list the Registrable Securities covered by the Registration
Statement
with any securities exchange on which the Common
Stock of the
Company is then
listed; and
(f) immediately
notify the
Purchaser at any time when a Prospectus
relating
thereto is required to
be delivered under the
Securities Act, of
the happening of any event of which
the Company has
knowledge as a result
of which the
Prospectus contained 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 light of the
circumstances then
existing.
4. Registration
Expenses. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company,
fees and expenses
(including
reasonable counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars,
are called
"Registration Expenses". All selling
commissions applicable to the sale of
Registrable Securities, including any fees
and disbursements of any special counsel to the Holders are not included in
Registration Expenses, and are the
responsibility of the Purchaser. The Company
shall only be responsible for all
Registration Expenses.
<PAGE>
5.
Indemnification.
(a) In the event of a registration of any Registrable Securities
under
the Securities
Act pursuant to this
Agreement, the Company
will indemnify
and hold
harmless the Purchaser, and its officers, directors and each
other
person,
if any, who controls the Purchaser within the meaning of the
Securities Act,
against any losses, claims, damages or liabilities,
joint
or several,
to which the
Purchaser,
or such persons may become subject
under the
Securities
Act or otherwise, insofar as such losses,
claims,
damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any
untrue statement or alleged untrue statement of any material
fact contained
in any Registration
Statement under which
such Registrable
Securities
were registered under the Securities Act pursuant to this
Agreement,
any preliminary Prospectus or final Prospectus contained
therein,
or any amendment or supplement
thereof, or arise out of or are
based upon 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,
and will reimburse the
Purchaser,
and each such
person
for any reasonable legal or other expenses incurred by them in
connection with
investigating or
defending any such loss, claim, damage,
liability or
action; provided, however, that the Company will not be liable
in any such case
if and to the extent that any such loss, claim, damage or
liability
arises out of or is based upon an untrue
statement or alleged
untrue statement
or omission or alleged omission so made in conformity with
information
furnished by or on
behalf of the
Purchaser or any such person
in writing
specifically for use in any such document.
(b) In the event of a registration of the Registrable Securities
under
the Securities
Act pursuant to this Agreement, the Purchaser will indemnify
and hold
harmless the Company,
and its officers,
directors and each other
person,
if any, who controls the Company within the meaning of the
Securities Act,
against all losses, claims, damages or liabilities,
joint
or several,
to which the Company
or such persons may become subject under
the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or
actions in respect
thereof) arise out of or are based upon
any untrue
statement or alleged untrue statement of any material fact
which
was furnished in
writing by the Purchaser to the Company expressly for use
in (and such
information is contained in) the Registration Statement under
which such
Registrable Securities
were registered under the Securities Act
pursuant to this
Agreement, any
preliminary Prospectus or final Prospectus
contained
therein, or any
amendment or supplement thereof, or arise out of
or are based
upon 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, and will
reimburse the Company and each
such person for
any reasonable legal or other expenses incurred by them in
connection with
investigating or
defending any such loss, claim, damage,
liability or
action, provided,
however, that the
Purchaser will be liable
in any such
case if and only to
the extent
that any such loss, claim,
damage or
liability arises out
of or is based upon an untrue statement or
alleged
untrue statement or omission or alleged omission so made in
conformity
with information furnished in writing to the
Company by or on
behalf
of the Purchaser specifically for use in any such document.
Notwithstanding
the provisions of this
paragraph, the
Purchaser shall not
be required to indemnify any person or entity in excess of
the amount of
the aggregate net proceeds received by the Purchaser in respect of
Registrable
Securities in
connection with any such registration unde
