Exhibit 2
REGISTRATION RIGHTS AGREEMENT
by and between
@TRACK COMMUNICATIONS, INC.,
MINORPLANET SYSTEMS PLC,
and the
OTHER HOLDERS PARTY HERETO
Dated as of June 21, 2001
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of June
21, 2001 and is by and between @TRACK COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), MINORPLANET SYSTEMS PLC, a United Kingdom public
limited corporation (referred to herein as "Buyer" or "Initial Securities
Holder") and the Other Holders (as defined herein).
WHEREAS, the Company, Buyer and Mackay ▇▇▇▇▇▇▇ LLC are concurrently with
the execution of this Agreement consummating the transactions contemplated by
that certain Stock Purchase and Exchange Agreement, dated February 12, 2001
(the "Stock Purchase Agreement"), providing for, among other things, the
receipt by Buyer of 150,000,000 newly issued shares of Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") to be issued to Buyer,
and newly issued shares of Common Stock to be issued to the Other Holders, all
in accordance with the terms and transactions contemplated by the Stock
Purchase Agreement;
WHEREAS, the transactions contemplated by the Stock Purchase Agreement
are to be consummated at the closing ( the "Closing");
WHEREAS, in connection with the Stock Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. (a) As used in this Agreement, the following terms
shall have the following meanings:
"Agreement" shall mean this Registration Rights Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Buyer" shall have the meaning assigned to such term in the Preamble.
"Closing" shall have the meaning assigned to such term in the Recitals.
"Closing Date" shall mean the date on which the Closing occurs.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor thereto.
"Common Stock" shall have the meaning assigned to such term in the
Recitals and shall also include (a) any securities issued as a dividend or
distribution on such shares of Common Stock, and (b) any securities into which
such Common Stock is converted in any merger, consolidation, reclassification,
exchange transaction or any such similar transaction.
"Company" shall have the meaning assigned to such term in the Preamble.
"Company Public Sale Event" shall mean any sale by the Company of Common
Stock for its own account as contemplated by subsection 4.1 pursuant to an
effective Registration Statement filed by the Company, filed on Form S-1 or
any other form for the general registration of securities with the Commission
(other than a Registration Statement filed by the Company on either Form S-4
or Form S-8 or any registration in connection with a standby underwriting in
connection with the redemption of outstanding convertible securities).
"Company Sale Notice" shall mean a Notice of Offering pursuant to
Subsection 4.1 from the Company to each Security Holder stating that the
Company proposes to effect a Company Public Sale Event.
"Demand Registration" shall have the meaning ascribed to such term in
Section 3.2(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any rules and regulations promulgated thereunder, and any
successor federal statute, rules or regulations.
"Form S-1" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-3" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-4" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-8" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Initial Exchange Shares" shall mean the newly issued shares of Common
Stock issued by the Company to the Other Holders pursuant to the terms of the
Letters of Transmittal.
"Initial Purchase Shares" shall mean the aggregate of 150,000,000 newly
issued shares of Common Stock issued by the Company to the Buyer pursuant to
the terms of the Stock Purchase Agreement at the Closing.
"Initial Securities Holder" shall have the meaning assigned to such term
in the Preamble.
"Letters of Transmittal" shall mean the transmittal letters by the
holders of the 13 3/4% Senior Notes due 2005, Series A, and 13 3/4% Senior
Notes due 2005, Series B to the Company pursuant to the exchange offer
contemplated by the Stock Purchase Agreement.
"Losses" shall have the meaning given thereto in Section 6.7(a)(i).
"NASD" shall mean the National Association of Securities Dealers, Inc. or
any successor thereto.
"Notice of Offering" shall mean a written notice with respect to (a) a
proposed Shelf Demand Registration, (b) a proposed Demand Registration, or (c)
a Company Public Sale Event, in each case setting forth (i) the expected
maximum and minimum number of shares of Registrable Common or Common Stock, as
the case may be, proposed to be offered and sold, (ii) the lead managing
underwriter, if applicable or selected and (iii) the proposed method of
distribution and the expected timing of the offering.
"Other Holders" shall mean the Persons who execute and deliver the
Letters of Transmittal tendering the 13 3/4% Senior Notes due 2005, Series A,
and 13 3/4% Senior Notes due 2005, Series B in exchange for newly issued
Common Stock of the Company; it being agreed that such Persons shall be deemed
to be signatories to this Agreement upon execution and delivery of the Letters
of Transmittal and the consummation of the transactions contemplated thereby.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Piggybacking Securities Holders" shall mean Securities Holders selling
Registrable Common in connection with a Company Public Sale Event pursuant to
subsection 4.3.
"Preliminary Prospectus" shall mean each preliminary prospectus included
in a Registration Statement or in any amendment thereto prior to the date on
which such Registration Statement is declared effective under the Securities
Act, including any prospectus filed with the Commission pursuant to Rule
424(a) under the Securities Act.
"Prospectus" shall mean each prospectus included in a Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in accordance with Rule 430A), together with any
supplement thereto, and any material incorporated by reference into such
Prospectus, all as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b) under the Securities Act.
"Public Sale Event" shall mean a Shelf Demand Registration, Demand
Registration, or a Company Public Sale Event, as the case may be.
"Purchase Agreement" shall mean any written agreement entered into by any
Securities Holder providing for the sale of Registrable Common in the manner
contemplated by a related Registration Statement, including the sale thereof
to an underwriter for an offering to the public.
"Registrable Common" shall mean (a) the Initial Purchase Shares, (b) the
Initial Exchange Shares and (c) any other securities issued as (or issuable
upon the conversion or exercise of any warrant, right, option or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Initial Purchase Shares or the
Initial Exchange Shares; provided, however, that any such Registrable Common
shall cease to be Registrable Common when (i) a Registration Statement with
respect to the sale of such Registrable Common has been declared effective
under the Securities Act and such securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, (ii) such shares are disposed of pursuant to Rule 144 (or any
similar provisions then in force) under the Securities Act, (iii) such
Registrable Common shall have been otherwise transferred, new certificates for
them not bearing a legend restricting further transfer under the Securities
Act shall have been delivered by the Company and they may be resold without
subsequent registration or qualification under the Securities Act or any state
securities laws then in force, or (iv) such securities shall cease to be
outstanding; provided, however, that any securities that have ceased to be
Registrable Common cannot thereafter become Registrable Common, and any
security that is issued or distributed in respect to securities that have
ceased to be Registrable Common shall not be Registrable Common.
"Registration" shall mean a registration of securities pursuant to the
Securities Act.
"Registration Statement" shall mean any registration statement (including
the Preliminary, the Prospectus, any amendments (including any post-effective
amendments) thereof, any supplements and all exhibits thereto and any
documents incorporated therein by reference pursuant to the rules and
regulations of the Commission), filed by the Company with the Commission under
the Securities Act in connection with any Public Sale Event.
"Responsible Officer" shall mean, as to the Company, the chief executive
officer, the president, the chief financial officer or any executive or senior
vice president of the Company.
"Rule 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 415" shall mean Rule 415 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 424" shall mean Rule 424 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 430A" shall mean Rule 430A promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Sale Event" shall mean any sale by the Company of Common Stock pursuant
to a Company Public Sale Event or any sale by any Securities Holder of
Registrable Common pursuant to a Public Sale Event.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
any rules and regulations promulgated thereunder and, any successor federal
statutes, rules or regulations.
"Securities Holder" or "Securities Holders" shall mean the Initial
Securities Holder, the Other Holders and any transferee thereof to whom the
rights and obligations of a Securities Holder are transferred pursuant to
subsection 6.8.
"Securities Holders' Counsel" shall mean the law firm appointed by
Securities Holders owning a majority of the Registrable Common held by
Securities Holders at the time of such appointment representing all of the
Securities Holders with respect to a proposed offering under this Agreement,
at the expense of the Company.
"Shelf Demand Registration" shall have the meaning assigned to such term
in subsection 2.2.
"Shelf Registration Statement" shall have the meaning assigned to such
term in subsection 2.1.
"Shelf Shares" shall have the meaning assigned to such term in subsection
2.1.
"Stock Purchase Agreement" shall have the meaning assigned to such term
in the Recitals.
"Termination Date" shall mean the later of the respective dates on which
the Company has no further obligation under the terms of this Agreement to
file or keep effective the Registration Statement.
(b) The words "hereof, "herein' and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement. Unless otherwise
specified, references to sections, subsections, schedules and exhibits are
references to such in this Agreement.
SECTION 2. SHELF REGISTRATION.
2.1 Shelf Registration. The Company agrees that, as promptly as practical
after the date hereof, and in any event no later than 90 days after the date
hereof, the Company shall use its best efforts to prepare and file with the
Commission a "shelf" Registration Statement on Form S-1 or Form S-3 for an
offering to be made on a continuous basis pursuant to Rule 415 (or any
successor rule) (the "Shelf Registration Statement") covering all of the (x)
Initial Exchange Shares and (y) nine percent (9%) of the Initial Purchase
Shares (collectively, the "Shelf Shares"); provided, however, that if the
Company is not eligible to use Form S-3 and uses Form S-1, the Initial
Purchase Shares shall not be covered by such Shelf Registration Statement. The
Company will use its best efforts to have such Shelf Registration Statement
declared effective by the Commission on or as soon as practicable after the
date hereof. The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective until the earlier of (A) the
date the Securities Holders can sell all their shares of the Shelf Shares
without any restrictions under Rule 144 and (B) the date on which no Shelf
Shares remain outstanding. In the event the Company has complied with this
Section by using a Form S-3 and becomes ineligible to use such Form, it shall
use its best efforts to substitute therefor, as soon as practicable, a Form
S-1 covering the Initial Exchange Shares.
2.2 Shelf Demand Registrations. (a) If the Company shall at any time
receive a Notice of Offering from any Securities Holder or Securities Holders
holding a minimum of 10% of the Shelf Shares then outstanding (but in no event
less than 3,000,000 shares (which number shall be adjusted in accordance with
all splits, pro rata stock dividends or reclassifications of the Common
Stock)) requesting an underwritten offering of Shelf Shares under the Shelf
Registration Statement that has anticipated aggregate proceeds at the time of
the request (net of underwriting discounts, commissions and expenses) in
excess of $10,000,000 (a "Shelf Demand Registration"), the Company shall,
subject to the terms and conditions hereof, be obligated to use its best
efforts to facilitate such proposed underwritten offering pursuant to the
terms of this Agreement.
(b) Following receipt of the notice referred to in subsection
2.2(a), the Company shall promptly, but in no event later than the fifth
business day following receipt of such notice, give a Notice of Offering to
all Securities Holders (other than the demanding Securities Holder), which
shall set forth the right of such Securities Holders to include any or all
shares of Registrable Common held by such Securities Holders in the proposed
offering, subject to the terms of this Agreement.
(c) The Securities Holders shall be entitled to a total of three (3)
Shelf Demand Registrations during the term of this Agreement; provided,
however, that no more than two of such Shelf Demand Registrations may take
place in any twelve (12) month period.
(d) If at any time any of the Securities Holders of the Registrable
Common covered by the Shelf Registration Statement desire to sell Registrable
Common in an underwritten offering (which for the purposes of this Agreement
shall not be deemed to include block trades) in accordance with the
limitations of this subsection 2.2, the investment banker or investment
bankers that will manage the offering will be nationally recognized
underwriters selected jointly by the Company, the Security Holder initiating
such underwritten offering and the Securities Holders owning a majority of the
Registrable Common held by Securities Holders included in such offering and
reasonably acceptable to the Company.
(e) If the lead managing underwriter advises the Company in writing
(with a copy to each Securities Holder participating in an underwritten
offering) on or before the date five (5) days prior to the date then scheduled
for such underwritten offering that, in its opinion, the amount of securities
(including shares of Registrable Common) requested to be included in such
underwritten offering exceeds the amount which can be sold in (or during the
time of) such offering, the number of shares of Registrable Common that may be
so included shall be allocated among all Securities Holders pro rata on the
basis of the number of shares of Shelf Shares held by such Securities Holders;
provided, however, that such allocation shall not operate to reduce the
aggregate number of shares of Registrable Common that may be so included in
such underwriting. If any Securities Holder does not request inclusion of the
maximum number of shares of Shelf Shares allocated to it pursuant to the above
described procedure, the remaining portion of its allocation shall be
reallocated among those requesting Securities Holders whose allocation did not
satisfy their requests pro rata on the basis of the number of shares of
Registrable Common held by such Securities Holders, and this procedure shall
be repeated until all of the Registrable Common which may be included in the
underwriting have been so allocated.
(f) Securities Holders holding a majority of the Shelf Shares
exercising a demand right for a Shelf Demand Registration under subsection
2.2(a) may withdraw the exercise of such right on behalf of all such
exercising Securities Holders as a result of a material adverse change in the
earnings, condition, financial or otherwise, or prospects of the Company, or a
material adverse change in the market for equity securities generally by
giving written notice to the Company prior to the date the Purchase Agreement
for such underwritten offering is signed, and such withdrawn Shelf Demand
Registration right shall not be deemed to be one of the three Shelf Demand
Registrations provided under Section 2.2(c); provided, however, that the
Company shall not be required to deliver a Notice of Offering with respect to
a renewed or new demand for an offering pursuant to subsection 4.2 or to take
any other action with respect to any such renewed or new demand for a period
of ninety (90) days following any such notice of withdrawal.
SECTION 3. DEMAND REGISTRATION.
3.1 Demand Registration. The Company agrees that, as promptly as
practical after the receipt of a Notice of Offering pursuant to Section
3.2(a), the Company shall use its best efforts to prepare and file with the
Commission a Registration Statement on a form then available for such filing
for an offering. The Company will use its best efforts to have such
Registration Statement declared effective by the Commission on or as soon as
practicable after the date of such filing. It is agreed that any request to
register shares under this Section 3.1 in accordance with Rule 415 under the
Securities Act shall be subject to Rule 415(a)(2) under the Securities Act.
3.2 Demand Registrations. (a) If the Company shall at any time receive a
Notice of Offering from any Securities Holder or Securities Holders holding a
minimum of 15% of the Registrable Common then outstanding (but in no event
less than 3,000,000 shares (which number shall be adjusted in accordance with
all splits, pro rata stock dividends or reclassifications of the Common
Stock)) requesting an offering of Registrable Common under a Demand
Registration Statement that has anticipated aggregate proceeds at the time of
the request (net of underwriting discounts, commissions and expenses) in
excess of $10,000,000 (a "Demand Registration"), the Company shall, subject to
the terms and conditions hereof, be obligated to use its best efforts to
facilitate such proposed offering pursuant to the terms of this Agreement.
(b) Following receipt of the notice referred to in subsection
3.2(a), the Company shall promptly, but in no event later than the fifth
business day following receipt of such notice, give a Notice of Offering to
all Securities Holders (other than the demanding Securities Holder), which
shall set forth the right of such Securities Holders to include any or all
shares of Registrable Common held by such Securities Holders in the proposed
offering, subject to the terms of this Agreement.
(c) The Securities Holders shall be entitled to a total of five (5)
Demand Registrations during the term of this Agreement; provided, however,
that if the Initial Purchase Shares cannot be registered on the Shelf
Registration Statement on Form S-3, the Initial Security Holder shall be
entitled to two (2) additional Demand Registrations during the term of this
Agreement. Notwithstanding the foregoing, no more than two of such Demand
Registrations may take place in any twelve (12) month period.
(d) If at any time any of the Securities Holders of the Registrable
Common covered by the Registration Statement desire to sell Registrable Common
in an underwritten offering (which for purposes of this Agreement shall not be
deemed to include block trades) in accordance with the limitations of
subsection 3.2(a), the investment banker or investment bankers that will
manage the offering will be nationally recognized underwriters selected
jointly by the Company, the Security Holder initiating such underwritten
offering and the Securities Holders owning a majority of the Registrable
Common held by Securities Holders included in such offering and reasonably
acceptable to the Company.
(e) If the lead managing underwriter advises the Company in writing
(with a copy to each Securities Holder participating in an underwritten
offering) on or before the date five (5) days prior to the date then scheduled
for such underwritten offering that, in its opinion, the amount of securities
(including shares of Registrable Common) requested to be included in such
underwritten offering exceeds the amount which can be sold in (or during the
time of) such offering, the number of shares of Registrable Common that may be
so included shall be allocated among all Securities Holders pro rata on the
basis of the number of shares of Registrable Common held by such Securities
Holders; provided, however, that such allocation shall not operate to reduce
the aggregate number of shares of Registrable Common that may be so included
in such underwriting. If any Securities Holder does not request inclusion of
the maximum number of shares of Registrable Common allocated to it pursuant to
the above described procedure, the remaining portion of its allocation shall
be reallocated among those requesting Securities Holders whose allocation did
not satisfy their requests pro rata on the basis of the number of shares of
Registrable Common held by such Securities Holders, and this procedure shall
be repeated until all of the Registrable Common which may be included in the
underwriting have been so allocated.
(f) Securities Holders holding a majority of the Registrable Common
exercising a demand right for a Demand Registration under subsection 3.2(a)
may withdraw the exercise of such right on behalf of all such exercising
Securities Holders as a result of a material adverse change in the earnings,
condition, financial or otherwise, or prospects of the Company, or a material
adverse change in the market for equity securities generally by giving written
notice to the Company prior to the date the Purchase Agreement for such
underwritten offering is signed, and such withdrawn Demand Registration right
shall not be deemed to be any of the Demand Registrations provided under
Section 3.2(c); provided, however, that the Company shall not be required to
deliver a Notice of Offering with respect to a renewed or new demand for an
offering pursuant to subsection 4.2 or to take any other action with respect
to any such renewed or new demand for a period of ninety (90) days following
any such notice of withdrawal.
SECTION 4. COMPANY SALE EVENTS.
4.1 Determination. Subject to subsection 5.2, the Company may at any time
effect a Company Public Sale Event pursuant to a Registration Statement filed
by the Company if the Company gives each Securities Holder a Company Sale
Notice, provided that such Company Sale Notice is given not less than 21 days
prior to the initial filing of the related Registration Statement. The
obligation of the Company to give to each Securities Holder a Company Sale
Notice and to permit piggyback registration rights to such Securities Holders
with respect to Registrable Common in connection with Company Sale Events in
accordance with this Section 4 shall terminate on the earlier of (A) the date
the Securities Holders can sell all their shares of the Registrable Common
without any restrictions under Rule 144 and (B) the date on which no
Registrable Common remains outstanding.
4.2 Notice. The Company Sale Notice shall offer the Securities Holders
the opportunity to participate in such offering and include the number of
shares of Registrable Common which represents the best estimate of the lead
managing underwriter (or, if not known or applicable, the Company) that will
be available for sale by the Securities Holders in the proposed offering.
4.3 Piggyback Rights of Securities Holders. (a) If the Company shall have
delivered a Company Sale Notice, Securities Holders shall be entitled to
participate on the same terms and conditions as the Company in the Company
Public Sale Event to which such Company Sale Notice relates and to offer and
sell shares of Registrable Common therein only to the extent provided in this
subsection 4.3. Each Securities Holder desiring to participate in such
offering shall notify the Company no later than ten (10) days following
receipt of a Company Sale Notice of the aggregate number of shares of
Registrable Common that such Securities Holder then desires to sell in the
offering.
(b) Each Securities Holder desiring to participate in a Company
Public Sale Event may include shares of Registrable Common in any Registration
Statement relating to a Company Public Sale Event to the extent that the
inclusion of such shares shall not reduce the number of shares of Common Stock
to be offered and sold by the Company to be included therein. If the lead
managing underwriter selected by the Company for a Company Public Sale Event
advises the Company in writing (with a copy to each Securities Holder) that,
in its opinion, the total number of shares of Common Stock to be sold by the
Company together with the shares of Registrable Common which such holders
intend to include in such offering would reasonably be expected to materially
adversely affect the price or distribution of the Common Stock offered in such
Company Public Sale Event or the timing thereof, then there shall be included
in the offering only that number of shares of Registrable Common, if any, that
such lead managing underwriter reasonably and in good faith believes will not
materially adversely affect the price or distribution of the Common Stock to
be sold in such Company Public Sale Event; provided that if the lead managing
underwriter determines that such factors require a limitation on the number of
shares of Registrable Common to be offered and sold as aforesaid and so
notifies the Company in writing, the number of shares of Registrable Common to
be offered and sold by Securities Holders desiring to participate in the
Company Public Sale Event, shall be allocated among those Securities Holders
desiring to participate in such Company Public Sale Event on a pro rata basis
based on their holdings of Registrable Common. If any Securities Holder does
not request inclusion of the maximum number of shares of Registrable Common
allocated to it pursuant to the above-described procedure, the remaining
portion of its allocation shall be reallocated among those requesting
Securities Holders whose allocation did not satisfy their requests pro rata on
the basis of the number of shares of Registrable Common held by such
Securities Holders, and this procedure shall be repeated until all of the
shares of Registrable Common which may be included in the underwriting have
been so allocated.
4.4 Discretion of the Company. In connection with any Company Public Sale
Event, subject to the provisions of this Agreement, the Company, in its sole
discretion, shall determine whether (a) to proceed with, withdraw from or
terminate such Company Public Sale Event, (b) to enter into a purchase
agreement or underwriting agreement for such Company Public Sale Event, and
(c) to take such actions as may be necessary to close the sale of Common Stock
contemplated by such offering, including, without limitation, waiving any
conditions to closing such sale which have not been fulfilled. No public
offering effected pursuant to this Section 4 shall be deemed to have been
effected pursuant to Section 2 or Section 3 hereof.
SECTION 5. BLACK-OUT PERIODS.
5.1 Black-Out Periods for Securities Holders. (a) No Securities Holder
shall offer to sell or sell any shares of Registrable Common pursuant to any
Registration Statement during the 60-day period immediately following the
effective date of any Registration Statement filed by the Company in respect
of a Company Public Sale Event.
(b) No Securities Holder shall offer to sell or sell any shares of
Registrable Common pursuant to any Registration Statement, and the Company
shall not be required to supplement or amend any Registration Statement or
otherwise facilitate the sale of Registrable Common pursuant thereto, during
the 90-day period (or such lesser number of days until the Company makes its
next required filing under the Exchange Act) immediately following the receipt
by each Securities Holder of a certificate of an authorized officer of the
Company to the effect that the Board of Directors of the Company has
determined in good faith that such offer, sale, supplement or amendment is
likely to (1) interfere with or affect the negotiation or completion of any
transaction that is being contemplated by the Company (whether or not a final
decision has been made to undertake such transaction) at the time the right to
delay is exercised, or (2) involve initial or continuing disclosure
obligations that might not be in the best interest of the Company or its
stockholders. If any proposed sale is so postponed as provided herein,
Securities Holders having filed the Notice of Offering pursuant to subsection
2.2 or 3.2 to which the deferral relates may, within 30 days after receipt of
the notice of postponement, advise the Company in writing that it has
determined to withdraw its request for registration, and such demand
registration request shall be deemed to be withdrawn and such request shall be
deemed not to have been exercised for purposes of determining whether such
holders retain the right to demand registrations pursuant to Section 2.2(c) or
3.2(c). Any period described in subsection 5.l(a) or 5.l(b) during which
Securities Holders are not able to sell shares of Registrable Common pursuant
to a Registration Statement is herein referred to as a "black-out" period. The
Company shall notify each Securities Holder of the expiration or earlier
termination of any "black-out" period (the nature and pendency of which need
not be disclosed during such "black-out" period).
(c) The period during which the Company is required pursuant to
subsection 2.l, respectively, to keep the Shelf Registration Statement
continuously effective shall be extended by a number of days equal to the
number of days, if any, of any "black-out" period applicable to Securities
Holders pursuant to this subsection 5.1 occurring during such period, plus a
number of days equal to the number of days during such period, if any, of any
period during which the Securities Holders are unable to sell any shares of
Registrable Common pursuant to the Shelf Registration Statement as a result of
the happening of any event of the nature described in subsections 6.3(c)(ii),
6.3(c)(iii) or 6.3(c)(v).
(d) Notwithstanding any provision to the contrary in this Section
5.1, (i) none of the "black-out" periods described in subsections 5.1(a) and
5.1(b) shall apply to the Other Holders for a period of 180 days from the
expiration of the 180th day after the Closing Date and 90 days after the one
year anniversary of the Closing Date, and such 180-day period and 90-day
period shall not be deemed to run, and thus the number of days remaining in
such period shall not be reduced, during any time in which the Shelf
Registration Statement is not effective, and (ii) during any twelve-month
period, the application of subsections 5.1(a) and 5.1(b) shall not leave
Security Holders with fewer than 270 days on which they may offer to sell
and/or sell shares of Registrable Common.
5.2 Black-Out Period for the Company. Except for offers to sell and sales
of Common Stock pursuant to a Registration Statement on Form S-8 or on Form
S-4, standby underwritings in connection with the redemption of outstanding
convertible securities, the conversion of outstanding convertible securities
or in connection with the acquisition by the Company of another company or
business, the Company shall not publicly offer to sell or sell any shares of
capital stock of the Company during the 60-day period immediately following
the initial sale of shares by any Securities Holder in a Shelf Demand
Registration or a Demand Registration.
SECTION 6. AGREEMENTS CONCERNING OFFERINGS.
6.1 Obligations of Securities Holders. (a) Each Securities Holder shall,
upon the reasonable request of the Company, advise the Company of the number
of shares of Registrable Common then held or beneficially owned by it.
(b) It shall be a condition precedent to the obligations of the
Company to effect a Registration of, or facilitate any Public Sale Event with
respect to, any shares of Registrable Common for any Securities Holder that
such Securities Holder shall have furnished to the Company a complete
Securities Holder's Questionnaire requesting such information regarding such
Securities Holder or the Registrable Common held by such Securities Holder and
the intended method of disposition of such securities as shall be required by
law, the Commission or the NASD, and any other information relating to such
Registration reasonably required by the Company.
6.2 Obligations of the Company. Whenever required under this Agreement to
proceed with a Registration of any Registrable Common, the Company shall,
subject to the terms and conditions of this Agreement, use its best efforts to
proceed as expeditiously as reasonably possible to:
(a) Prepare and file with the Commission a Registration Statement
with respect to such Registrable Common and use its best efforts to cause such
Registration Statement to become effective; provided, however, that before
filing a Registration Statement or Prospectus or any amendments or supplements
thereto, the Company will furnish to the Security Holders covered by such
Registration Statement and to Securities Holders' Counsel copies of any such
Registration Statement or Prospectus proposed to be filed.
(b) Prepare and file with the Commission such amendments (including
post-effective amendments) to such Registration Statement and supplements to
the related Prospectus used in connection with such Registration Statement,
and otherwise use its best efforts, to the end that such Registration
Statement reflects the plan of distribution of the securities registered
thereunder that is included in the relevant Notice of Offering and is
effective until the completion of the distribution contemplated by such
Registration Statement or so long thereafter as a broker or dealer is required
by law to deliver a Prospectus in connection with the offer and sale of the
shares of Registrable Common covered by such Registration Statement and/or as
shall be necessary so that neither such Registration Statement nor the related
Prospectus shall 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 not misleading and so that such Registration Statement and
the related Prospectus will otherwise comply with all applicable legal and
regulatory requirements. The Company shall not be deemed to have effected a
Registration for any purpose under this Agreement unless and until such
Registration Statement is declared effective by the Commission.
(c) Provide to any Securities Holder requesting to include
Registrable Common in such Registration Statement and any managing
underwriter(s) participating in any distribution thereof and to any attorney,
accountant or other agent retained by such Securities Holder or managing
underwriter(s), reasonable access to appropriate officers and directors of the
Company, its independent auditors and counsel to ask questions and to obtain
information (including any financial and other records and pertinent corporate
documents) reasonably requested by any such Securities Holder, managing
underwriter(s), attorney, accountant or other agent in connection with such
Registration Statement or any amendment thereto; provided, however, that (i)
in connection with any such access or request, any such requesting Persons
shall cooperate to the extent reasonably practicable to minimize any
disruption to the operation by the Company of its business and (ii) any
records, information or documents shall be kept confidential by such
requesting Persons, unless (A) such records, information or documents are in
the public domain or otherwise publicly available or (B) disclosure of such
records, information or documents is required by court or administrative order
or by applicable law (including, without limitation, the Securities Act).
(d) Furnish at the Company's expense to the participating Securities
Holders and any managing underwriter(s) and to any attorney, accountant or
other agent retained by such Securities Holders or managing underwriter(s),
such number of copies of any Registration Statement and Prospectus, including
any Preliminary Prospectus, 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 the shares of Registrable Common owned
by them.
(e) Prior to any Public Sale Event, use its best efforts to register
and qualify the securities covered by such Registration Statement (to the
extent exemptions are not available) under securities or `Blue Sky' laws of
such other jurisdictions as shall be reasonably requested by the Securities
Holders or the managing underwriter(s) and to keep each such registration or
qualification effective during the period required for such Public Sale Event
to be consummated; provided 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 in which it has not already done so.
(f) Enter into and perform its obligations under a Purchase
Agreement, if the offering is an underwritten offering, in usual and customary
form, with the managing underwriters) of such underwritten offering; provided,
however, that each Securities Holder participating in such Public Sale Event
shall also enter into and perform its obligations under such Purchase
Agreement so long as such obligations are usual and customary obligations of
selling stockholders in a registered public offering.
(g) Use its best efforts to cause the Registrable Common covered by
the Registration Statement to be listed on each national securities exchange
in the United States on which the Common Stock is then listed or quoted on
each inter-dealer quotation system on which the Common Stock is then quoted.
(h) Provide for or designate a transfer agent and registrar (which
may be the same entity) for the Registrable Common covered by the Registration
Statement from and after the effective date of such Registration Statement.
(i) Cooperate with the selling Securities Holders of Registrable
Common and any managing underwriters to facilitate the timely issuance and
delivery to any underwriters to which any Securities Holder may sell
Registrable Common in such offering, certificates evidencing shares of the
Registrable Common not bearing any restrictive legends and in such
denominations and registered in such names as the managing underwriters may
request.
(j) Facilitate the distribution and sale of any shares of
Registrable Common to be offered pursuant to this Agreement, including,
without limitation, by making road show presentations, holding meetings with
potential investors and taking such other reasonable actions as shall be
requested by the Securities Holders holding a majority of the shares of
Registrable Common covered by a Registration Statement or the lead managing
underwriter of an underwritten offering; provided that the Company receives
reasonable notice of such requested actions by any of the Securities Holders
and the lead managing underwriter.
6.3 Agreements Related to Offerings. Subject to the terms and conditions
hereof, in connection with the Registration Statement covering any Public Sale
Event, as applicable:
(a) The Company and each Securities Holder will cooperate with the
underwriters for any offering of Registrable Common proposed to be sold
pursuant to a Registration Statement, and will, unless the parties to the
Purchase Agreement otherwise agree, use its best efforts to enter into a
Purchase Agreement not inconsistent with the terms and conditions of this
Agreement and containing such other terms and conditions of a type and form
reasonable and customary for companies of similar size and credit rating
(including, but not limited to, such provisions for indemnification and
contribution and for the delivery of a `comfort letter' and legal opinion as
are customary), and use its best efforts to take all such other reasonable
actions as are necessary or advisable to permit, expedite and facilitate the
disposition of such shares of Registrable Common in the manner contemplated by
such Registration Statement in each case to the same extent as if all the
shares of Registrable Common then being offered were for the account of the
Company.
(b) Neither such Registration Statement nor any amendment or
supplement thereto will be filed by the Company until Securities Holders'
Counsel shall have had a reasonable opportunity to review the same and to
exercise its rights under subsection 6.2(c) with respect thereto. No amendment
to such Registration Statement naming any Securities Holder as a selling
security holder shall be filed with the Commission until such Securities
Holder shall have had a reasonable opportunity to review such Registration
Statement as originally filed. Neither such Registration Statement nor any
related Prospectus or any amendment or supplement thereto shall be filed by
the Company with the Commission which shall be disapproved (for reasonable
cause) by the managing underwriters named therein or Securities Holders'
Counsel within a reasonable period after notice thereof.
(c) The Company will use its reasonable efforts to keep the
Securities Holders informed of the Company's best estimate of the earliest
date on which such Registration Statement or any post-effective amendment
thereto will become effective and will notify each Securities Holder,
Securities Holders' Counsel and the managing underwriter(s), if any,
participating in the distribution pursuant to such Registration Statement
promptly (i) when such Registration Statement or any post-effective amendment
to such Registration Statement is filed or becomes effective, (ii) of any
request by the Commission for an amendment or any supplement to such
Registration Statement or any related Prospectus, or any other information
request by any other governmental agency directly relating to the offering,
and promptly deliver to each Securities Holder participating in the offering
and the managing underwriter(s), if any, copies of all correspondence between
the Commission or any such governmental agency or self-regulatory body and all
written memoranda relating to discussions with the Commission or its staff
with respect to the Registration Statement or proposed sale of shares, to the
extent not covered by attorney-client privilege or constituting attorney work
product, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of such Registration Statement or of any order preventing or
suspending the use of any related Prospectus or the initiation or threat of
any proceeding for that purpose, (iv) of the suspension of the qualification
of any shares of Common Stock included in such Registration Statement for sale
in any jurisdiction or the initiation or threat of a proceeding for that
purpose, (v) of any determination by the Company that an event has occurred
(the nature and pendency of which need not be disclosed during a `black-out
period' pursuant to subsection 5.1(b)) which makes untrue any statement of a
material fact made in such Registration Statement or any related Prospectus or
which requires the making of a change in such Registration Statement or any
related Prospectus in order that the same will 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 under which they were made, not misleading, (vi) of the
completion of the distribution contemplated by such Registration Statement if
it relates to a Company Sale Event, and (vii) if at any time the
representations and warranties of the Company under Section 7 cease to be true
and correct in all material respects.
(d) In the event of the issuance of any stop order suspending the
effectiveness of such Registration Statement or of any order suspending or
preventing the use of any related Prospectus or suspending the qualification
of any shares of Common Stock included in such Registration Statement for sale
in any jurisdiction, the Company will use its reasonable best efforts to
obtain its withdrawal at the earliest possible time.
(e) The Company agrees to otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make
available to the Security Holders, as soon as reasonably practicable, but not
later than fifteen months after the effective date of such Registration
Statement, an earnings statement covering the period of at least twelve months
beginning with the first full fiscal quarter after the effective date of such
Registration Statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(f) The Company shall, subject to permitted "black-out" periods,
upon the happening of any event of the nature described in subsection
6.3(c)(ii), 6.3(c)(iii) or 6.3(c)(v), as expeditiously as reasonably possible,
prepare a supplement or post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
documents and deliver a copy thereof to each Securities Holder so that, as
thereafter delivered to the purchasers of the Registrable Common being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or make
the statements therein, in light of the circumstances under which they were
made, not misleading.
6.4 Certain Expenses. The Company shall pay all fees, disbursements and
expenses in connection with any Company Public Sale Event, Shelf Registration
Statement and Registration Statement and the performance of its obligations
hereunder (including those pursuant to subsection 2.2 and subsection 3.2
hereof), including, without limitation, to the extent applicable, all
registration and filing fees, printing, messenger and delivery expenses, fees
of the Company's auditors, listing fees, registrar and transfer agents' fees,
reasonable fees and disbursements of Securities Holders' Counsel in connection
with the registration but not the disposition of the Registrable Common
(provided that the Company shall have no obligation to reimburse the fees and
disbursements of any other counsel to any Securities Holder), fees and
disbursements for counsel for the Company, fees and expenses (including
reasonable fees and disbursements of counsel) of complying with applicable
state securities or `Blue Sky" laws and the fees of the NASD in connection
with its review of any offering contemplated in any such Registration
Statement, but not including underwriting discounts and commissions or
brokerage commissions on any shares of Registrable Common sold in any such
offering.
6.5 Reports Under the Exchange Act. (a) From the date hereof to the
Termination Date, the Company agrees to:
(i) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act or the
Exchange Act; and
(ii) furnish to any Securities Holder, forthwith upon request
(A) a written statement by the Company that it has complied with the current
public information and reporting requirements of Rule 144 and the Exchange
Act, (B) 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 (C) such
other information as may be reasonably requested in connection with any
Securities Holder availing itself of any rule or regulation of the Commission
which permits the selling of any such securities without Registration or
pursuant to such rule or regulation.
(b) if any Securities Holder is required to file a Form 144 with
respect to any sale of shares of Registrable Common, such Securities Holder
shall promptly deliver to the Company a copy of such completed Form 144 filed
with the Commission.
6.6 Limitations on Subsequent Registration Rights. From the date hereof
to the Termination Date, the Company shall not, without the prior written
consent of Securities Holders owning a majority of the shares of Registrable
Common held by Securities Holders at such time, enter into any agreement
(other than this Agreement) which would allow any holder or prospective holder
of Common Stock to include such securities in any Registration Statement, or
which would provide any holder or prospective holder of Common Stock piggyback
registration rights for such Common Stock unless the piggyback registration
rights provided to the Securities Holders hereunder shall have priority in the
event of any cutback.
6.7 Indemnification and Contribution. (a) In connection with (x) the
Shelf Registration Statement, subsections 6.7(a)(i), (ii) and (v), 6.7(c) and
6.5(e) hereof shall be in full force and effect upon the effective date of the
Shelf Registration Statement, and (y) a Registration Statement which covers
Registrable Common being sold by Piggybacking Securities Holders or in
connection with an underwritten offering pursuant to the Shelf Registration
Statement under subsection 2.2 or a Registration Statement pursuant to
subsection 3.2, provisions substantially in conformity with the following
provisions shall be contained in the related Purchase Agreement unless the
parties to such Purchase Agreement agree otherwise (references in such
provisions to a Securities Holder or an underwriter being references to a
Securities Holder or an underwriter participating in the offering covered by
such Registration Statement):
(i) The Company agrees to indemnify and hold harmless each
Securities Holder and each Person, if any, who controls such Securities Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each of their respective officers, directors and employees
against any losses, claims, damages or liabilities, joint or several, or
actions in respect thereof to which such Securities Holder or Persons may
become subject under the Securities Act, or otherwise (collectively,
"Losses"), insofar as such Losses arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement, any related Preliminary Prospectus or any related
Prospectus, or any amendment or supplement thereto, 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 such Securities Holder or Persons for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Losses; provided, however, that the Company shall not be
so liable to the extent that any such Losses arise out of, or are based upon,
an untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in said Registration
Statement in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of such Securities Holder
specifically for use therein. Notwithstanding the foregoing, the Company shall
not be liable in any such instance to the extent that any such Losses arise
out of, or are based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus if (i) after
the Company had made available a sufficient number of copies of the
Prospectus, such Securities Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale
of Registrable Common to the Person asserting such Losses or who purchased the
Registrable Common the purchase of which is the basis of the action if, in
either instance, such delivery by such Securities Holder is required by the
Securities Act and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or alleged omission; and the Company
shall not be liable in any such instance to the extent that any such Losses
arise out of, or are based upon, an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Securities Holder thereafter fails to deliver such
Prospectus as so amended or supplemented, prior to or concurrently with the
sale of Registrable Common if such delivery by such Securities Holder is
required by the Securities Act. This indemnity agreement will be in addition
to any liability which the Company may otherwise have and shall remain in full
force and effect regardless of any investigation made by or on behalf of such
holder or any such Person and shall survive the Termination Date and the
transfer of Registrable Common by such holder as otherwise permitted hereby.
(ii) Each Securities Holder severally agrees to indemnify and
hold harmless the Company, each other Securities Holder and each Person, if
any, who controls the Company or such other Securities Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and their respective officers, directors and employees, against any Losses to
which the Company, such other Securities Holder or such Persons may become
subject under the Securities Act, or otherwise, insofar as such Losses arise
out of, or are based upon, any untrue statement or alleged untrue statement of
any material fact contained in such Registration Statement, any related
Preliminary Prospectus or any related Prospectus, or any amendment or
supplement thereto, 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, such other Securities Holder or such Persons for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Losses, in each instance to the extent, but only to the
extent, that any such Losses arise out of, or are based upon, an untrue
statement or alleged untrue statement of a material fact or an omission or
alleged omission to state a material fact in said Registration Statement, said
Preliminary Prospectus or said Prospectus, or any said amendment or supplement
thereto in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of such Securities Holder
specifically for use therein; provided, however, that the liability of each
Securities Holder under this subsection 6.7(a)(ii) shall be limited to an
amount equal to the proceeds of the sale of shares of Registrable Common by
such Securities Holder in the offering which gave rise to the liability (net
of all costs and expenses (including underwriting commissions and
disbursements) paid or incurred by such Securities Holder in connection with
the registration, if any, and sale).
(iii) The Company will indemnify and hold harmless each
underwriter and each Person, if any, who controls any such underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and their respective officers, directors and employees, against any
Losses to which such underwriter or Persons may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or are
based upon, any untrue statement or alleged untrue statement of any material
fact contained in such Registration Statement, any related Preliminary
Prospectus or any related Prospectus, or any amendment or supplement thereto,
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 such underwriter or
Persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses; provided, however,
that (i) the Company shall not be so liable to the extent that any such Losses
arise out of, or are based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in said Registration Statement, said Preliminary Prospectus or
said Prospectus or any said amendment or supplement in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf
of such underwriter specifically for use therein; and (ii) such indemnity with
respect to any Preliminary prospectus shall not inure to the benefit of any
underwriter (or any Person controlling such underwriter) from whom the Person
asserting any such Losses purchased shares of Common Stock if such Person did
not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such shares of
Common Stock to such Person in any case where such delivery is required by the
Securities Act and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact in such Preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as amended or
supplemented); provided, further, that the Company shall only be required to
provide the indemnification described in this subsection 6.7(a)(iii) to an
underwriter and each Person, if any, who controls such underwriter, and their
respective officers, directors and employees, if such underwriter agrees to
indemnification provisions substantially in the form set forth in subsection
6.7(b).
(iv) Each Securities Holder will severally indemnify and hold
harmless each underwriter and each Person, if any, who controls such
underwriter within the meaning of Section 15 of the Securities Act or section
20 of the Exchange Act, and their respective officers, directors and
employees, against any Losses to which such underwriter or such Persons may
become subject under the Securities Act, or otherwise, insofar as such Losses
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement, any
related Preliminary Prospectus or any related Prospectus, or any amendment or
supplement thereto, 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
such underwriter or such Persons for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
Losses, in each case to the extent, but only to the extent, that any such
Losses arise out of, or are based upon, an untrue statement or alleged untrue
statement of a material fact or an omission or alleged omission to state a
material fact in said Registration Statement in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf
of such Securities Holder specifically for use therein; provided, however,
that such Securities Holder shall only be required to provide the
indemnification described in this subsection 6.7(a)(iv) to an underwriter and
each Person, if any, who controls such underwriter if such underwriter agrees
to indemnification provisions substantially in the form set forth in
subsection 6.7(b); and provided, further, that such Securities Holder shall
not be liable in any such case to the extent that any such Losses arise out
of, or are based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus if (i) such
underwriter failed to send or deliver a copy of the Prospectus with or prior
to the delivery of written confirmation of the sale of Registrable Common to
the Person asserting such Loss who purchased the Registrable Common which is
the subject thereof where such delivery is required by the Securities Act and
(ii) the Prospectus would have corrected such untrue statement or omission or
alleged untrue statement or alleged omission; and such Securities Holder shall
not be liable in any such case to the extent that any such Losses arise out
of, or are based upon, an untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Prospectus, if such untrue statement or alleged untrue statement, omission or
alleged omission is corrected in an amendment or supplement to the Prospectus
and if, having previously been furnished by or on behalf of such Securities
Holder with copies of the Prospectus as so amended or supplemented, such
underwriter thereafter fails to deliver such Prospectus as so amended or
supplemented, prior to or concurrently with the sale of Registrable Common to
the Person asserting such Loss who purchased such Registrable Common which is
the subject thereof or where such delivery is required by the Securities Act,
and provided, further, that the liability of such Securities Holder under this
subsection 6.7(a)(iv) shall be limited to an amount equal to the proceeds of
the sale of shares of Common Stock by such Securities Holder in the offering
which gave rise to the liability (net of all costs and expenses (including
underwriting commissions and disbursements) paid or incurred by such
Securities Holder in connection with the registration, if any, and sale).
(v) Promptly after any Person entitled to indemnification under
this subsection 6.7 or such Purchase Agreement receives notice of any claim or
the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party pursuant to the
indemnification provisions of this subsection 6.7 of such Purchase Agreement,
notify the indemnifying party in writing of the claim or the commencement of
such action; provided, however, that the failure or delay to so notify the
indemnifying party shall not relieve it from any liability which it may have
to the indemnified party hereunder unless and to the extent such failure or
delay has materially prejudiced the rights of the indemnifying party and shall
not, in any event, relieve it from any liability which it may have to the
indemnified party other than pursuant to the indemnification provisions of
this subsection 6.7 or such Purchase Agreement. If any such claim or action
shall be brought against an indemnified party, and it has notified the
indemnifying party thereof in accordance with the terms hereof, the
indemnifying party shall be entitled to participate in the defense of such
claim, or, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party, upon written notice to the
indemnified party of such assumption. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim
or action, (i) the indemnifying party shall not be liable to the indemnified
party pursuant to the indemnification provisions hereof or of such Purchase
Agreement for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, (ii) the indemnifying party shall not be liable for
the costs and expenses of any settlement of such claim or action unless such
settlement was effected with the consent of the indemnifying party (which
consent shall not be unreasonably withheld or delayed) and (iii) the
indemnified party shall be obligated to cooperate with the indemnifying party
in the investigation of such claim or action; provided, however, that any
indemnified party hereunder shall have the right to employ separate counsel
and to participate in the defense of such claim assumed by the indemnifying
party, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (a) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, (b) the
indemnifying party shall have failed to assume the defense of such claim from
the Person entitled to indemnification hereunder and failed to employ counsel
within a reasonable period following such assumption, or (c) in the reasonable
judgment of the indemnified party, based upon advice of its counsel, a
material conflict of interest may exist between such indemnified party and the
indemnifying party with respect to such claims or there may be one or more
material legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case, if the
indemnified party notifies the indemnifying party in writing that the
indemnified party elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of the indemnified party). Notwithstanding
the foregoing, the Securities Holders (together with their respective
controlling Persons and officers, directors and employees) and the
underwriters (together with their respective controlling Persons and officers,
directors and employees) shall, each as a separate group, have the right to
employ at the expense of the Company only one separate counsel for each such
group to represent such Securities Holders and such underwriters (and their
respective controlling Persons and officers, directors and employees) who may
be subject to liability arising out of any one action (or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances) in respect of which indemnity may be
sought by such Securities Holders and underwriters against the Company
pursuant to the indemnification provisions of this subsection 6.7 or such
Purchase Agreement. If such defense is not assumed by the indemnifying party,
the indemnifying party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably withheld
or delayed). No indemnifying party will consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation. All fees
and expenses to be paid by the indemnifying party hereunder shall be paid a
commercially reasonable time after they are billed to the indemnified party,
subject to receipt of a written undertaking from the indemnified party to
repay such fees and expenses if indemnity is not ultimately determined to be
available to such indemnified party under this subsection 6.7.
(b) As a condition to agreeing in any Purchase Agreement to the
indemnification provisions set forth in subsections 6.7(a)(iii) and 6.7(a)(iv)
in favor of an underwriter participating in the offering covered by the
related Registration Statement, its controlling Persons, if any, and their
respective officers, directors and employees, the Company and the Securities
Holders participating in an offering pursuant to such Registration Statement
may require that such underwriter agree in the Purchase Agreement to
provisions substantially in the form set forth in subsection 6.7(a)(v) and to
severally indemnify and hold harmless the Company, each Securities Holder
participating in such offering, each Person, if any, who controls the Company
or such Securities Holder within the meaning of the Securities Act, and their
respective officers, directors and employees against any Loss to which the
Company, such Securities Holder or such Persons may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or are
based upon, any untrue statement or alleged untrue statement of any material
fact contained in such Registration Statement in which such underwriter is
named as an underwriter, any related Preliminary Prospectus or any related
Prospectus, or any amendment or supplement thereto, 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 to reimburse the Company, such Securities Holder or such
Persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses in each case to the
extent, but only to the extent, that any such Loss arises out of, or are based
upon, an untrue statement or alleged untrue statement of a material fact in
said Registration Statement, said Preliminary Prospectus or said Prospectus or
any said amendment or supplement in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of such
underwriter specifically for use therein.
(c) In order to provide for just and equitable contribution between
the Company and such Securities Holders in circumstances in which the
indemnification provisions of this subsection 6.7 or the related Purchase
Agreement are for any reason insufficient or inadequate to hold the
indemnified party harmless, the Company and such Securities Holders shall
contribute to the aggregate Losses (including any investigation, legal and
other fees and expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suitor proceeding or any claim as asserted,
but after deducting any contribution actually received from Persons other than
the Company and such Securities Holders) to which the Company and one or more
of its directors or its officers who sign such Registration Statement or such
Securities Holders or any controlling Person of any of them, or their
respective officers, directors or employees may become subject, under the
Securities Act, under any other statute, at common law or otherwise, insofar
as such Losses 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 such Registration Statement or any 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.
Such contributions shall be in such amounts that the portion of such Losses
for which each such Securities Holder shall be responsible under this
subsection 6.7(c) shall be limited to the portion of such Losses which are
directly attributable to an untrue statement of a material fact or an omission
to state a material fact in said Registration Statement in reliance upon, and
in conformity with, written information furnished to the Company by or on
behalf of any such Securities Holders specifically for use therein, and the
Company shall be responsible for the balance of such Losses; provided,
however, that the liability of each such Securities Holder to make such
contribution shall be limited to an amount equal to the proceeds of the sale
of shares of Registrable Common by such Securities Holder in the offering
which gives rise to the liability (net of all cost and expenses (including
underwriting commissions and disbursements) paid or incurred in connection
with the registration, if any, and sale). As among themselves, such Securities
Holders agree to contribute to amounts payable by other such Securities
Holders in such manner as shall, to the extent permitted by law, give effect
to the provisions in subsection 6.7(a)(ii) and those provisions in the
Purchase Agreement comparable to such subsection 6.7(a)(ii). The Company and
such Securities Holders agree that it would not be just and equitable if their
respective obligations to contribute pursuant to this subsection were to be
determined by pro rata allocation (other than as set forth above) of the
aggregate Losses by reference to the proceeds realized by such Securities
Holder in a sale pursuant to said Registration Statement or said Prospectus or
by any other method of allocation which does not take account of the
considerations set forth in this subsection 6.7(c). No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution under this subsection from
any Person who was not guilty of such fraudulent misrepresentation.
(d) The Company and the Securities Holders participating in an
offering pursuant to a Registration Statement agree that, if the underwriters
participating in a Public Sale Event are agreeable, the Purchase Agreement, if
any, relating to such Registration Statement shall contain provisions to the
effect that in order to provide for just and equitable contribution between
such underwriters on the one hand and the Company and such Securities Holders
on the other hand in circumstances in which the indemnification provisions of
such Purchase Agreement are for any reason insufficient or inadequate to hold
the indemnified party harmless, the Company and such Securities Holders on the
one hand and such underwriters on the other hand will contribute on the basis
herein set forth to the aggregate Losses, (including any investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or claims asserted, but after
deducting any contribution actually received from Persons other than the
Company and such Securities Holders and such underwriters) to which the
Company and one or more of its directors or its officers who sign such
Registration Statement or such Securities Holders or such underwriters or any
controlling Person of any of them, or their respective officers, directors or
employees may become subject, under the Securities Act, under any other
statute, at common law or otherwise insofar as such Losses, arise out of, or
are based upon an untrue statement or alleged untrue statement of any material
fact contained in such Registration Statement, any related Preliminary
Prospectus or any related Prospectus, or any amendment or supplement thereto,
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. Such contribution shall be in such
proportions as is appropriate to reflect the relative benefits received by the
Company and such Securities Holders on the one hand and such underwriters on
the other hand from the offering of the shares of Common Stock covered by such
offering. The relative benefits received by the Company and such Securities
Holders on the one hand and such underwriters on the other hand shall be
deemed to be in the same proportion as the aggregate total net proceeds from
the offering (before deducting expenses) received by the Company and such
Securities Holders bear to the total underwriting discounts and commissions
received by such underwriters for such offering. Notwithstanding the
provisions set forth above, no underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the shares of
Common Stock underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution under the provision set forth above from any
Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Securities Holders under
the provisions of this subsection 6.7 and provisions in any Purchase Agreement
substantially similar to subsections 6.7(a), 6.7(b) 6.7(c) or 6.7(d) shall
survive the termination of any or all of the other provisions of this
Agreement or such Purchase Agreement.
6.8 Transfer of Rights Under this Agreement; Transfers of Registrable
Common. (a) During the period from the date hereof to the Termination Date,
the rights and obligations of a Securities Holder under this Agreement may be
transferred by a Securities Holder to a transferee of Registrable Common
(subject to the provisos to the definitions of Registrable Common); provided;
however, that, within a reasonable period of time (but in no event less than
five (5) days) prior to such transfer, (i) the transferring Securities Holders
shall have furnished the Company and the other Securities Holders written
notice of the name and address of such transferee and the number of shares of
Registrable Common with respect to which such rights are being transferred and
(ii) such transferee shall furnish the Company and the Securities Holders
(other than the transferring Securities Holders) a copy of a duly executed
agreement by which such transferee (A) assumes all of the obligations and
liabilities of its transferor hereunder, (B) enjoys all of the rights of its
transferor hereunder and (C) agrees itself to be bound hereby.
(b) If the stock certificates of a transferring Securities Holder
bear a restrictive legend pursuant to subsection 6.9, the stock certificates
of its transferee to whom the rights hereunder are being transferred shall,
subject to such subsection 6.9, also bear such a restrictive legend.
(c) Except with respect to transfers pursuant to paragraph (a)
above, and subject to the provisions of paragraph (b) above, a transferee of
Registrable Common shall neither assume any liabilities or obligations nor
enjoy any rights hereunder and shall not be bound by any of the terms hereof.
(d) Each Securities Holder hereby agrees that any transfer of shares
of Registrable Common by such Securities Holder shall be made (i) in
compliance with, or in a transaction exempt from, the registration
requirements set forth in the Securities Act and (ii) in compliance with all
other applicable laws. The Company may request, as a condition to the transfer
of any Registrable Common, that the transferring Securities Holders provide
the Company with (A) evidence that the proposed transferee is an "accredited
investor" as deemed in Rule 501 under the Securities Act and appropriate "
private placement" representations pursuant to Section 4(2) of the Securities
Act, and (B) an opinion of securities counsel reasonably satisfactory to it
with regard to compliance with this subsection (d).
6.9 Restrictive Legend. Each certificate evidencing shares of Registrable
Common shall, unless and until such shares are sold or otherwise transferred
pursuant to an effective Registration Statement under the Securities Act or
unless, in the absence of such a Registration Statement, the Company receives
an opinion of counsel reasonably satisfactory to it that the restrictive
legend set forth below may be removed without violation of applicable law
(including, without limitation, the Securities Act), be stamped or otherwise
imprinted with a conspicuous legend in substantially the following form:
THE OFFER AND SALE OF THE SECURITIES OF THIS COMPANY REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS, AND THESE SECURITIES
CANNOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE OFFER AND
SALE THEREOF ARE REGISTERED UNDER SUCH LAWS OR EXEMPTIONS FROM
REGISTRATION ARE AVAILABLE AND THE COMPANY HAS BEEN FURNISHED WITH AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND KNOWLEDGEABLE AS TO
SECURITIES MATTERS STATING THAT EXEMPTIONS FROM SUCH REGISTRATION
REQUIREMENTS ARE AVAILABLE AND THAT THE PROPOSED SALE DOES NOT, AND WILL
NOT PLACE THE COMPANY NOR ANY AFFILIATE THEREOF, IN VIOLATION OF ANY
APPLICABLE FEDERAL, STATE OR FOREIGN SECURITIES LAW, OR ANY RULE OR
REGULATION PROMULGATED THEREUNDER.
THE TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IS SUBJECT
TO A REGISTRATION RIGHTS AGREEMENT DATED AS OF [_______ __, 2001], WITH
THE ISSUER AS FROM TIME TO TIME AMENDED, AND NO TRANSFER OF THE
SECURITIES EVIDENCED BY THIS CERTIFICATE SHALL BE VALID OR EFFECTIVE
UNLESS MADE IN ACCORDANCE WITH SAID AGREEMENT. A COPY OF SAID AGREEMENT
IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE
ISSUER.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In connection with each Registration Statement, the Company shall, on the
respective date of effectiveness of each such Registration Statement with the
Commission, certify to each Securities Holder in a certificate of a
Responsible Officer of the Company to the effect that the representations and
warranties set forth below are true and correct at and as of such effective
date. In connection with any other Sale Event in which Securities Holders
participate, except as otherwise may be agreed upon by such participating
Securities Holders and the Company, the Company shall represent and warrant in
the Purchase Agreement relating to such Sale Event to the Securities Holders
and any underwriters participating in such Sale Event as follows (except as
otherwise indicated, each reference in this Section to the "Registration
Statement" shall refer to the Shelf Registration Statement, or a Registration
Statement in respect of any other such Sale Event in which Securities Holders
participate, as the case may be, including all information deemed to be a part
thereof, as amended, and each reference to "the Prospectus" shall refer to the
related Prospectus):
(a) At the time of filing, the Registration Statement (i) is on a
form for which the Company then qualifies, which form is available for the
sale of the shares of Registrable Common in accordance with the intended
method or methods of distribution thereof and which form covers the
registration of at least such number of shares of Registrable Common as shall
have been requested to be included therein (subject to any cutbacks determined
by an underwriter pursuant to the terms of this Agreement), (ii) complies in
all material respects with the applicable form and with the applicable
requirements of the Securities Act and includes all financial statements and
other information required by the Commission to be filed therewith, and (iii)
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein in light of the circumstances under which they were made
not misleading; provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted from the
Registration Statement in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Securities Holder
specifically for use in connection with the preparation thereof or any
information furnished in writing to the Company by or on behalf of any
underwriter specifically for use in connection with the preparation thereof,
other than that the Company has no knowledge of any such untrue statement or
omission in respect of such information.
(b) (i) When the Registration Statement became (in the case of a
Registration Statement filed pursuant to Rule 415) or shall become effective,
the Registration Statement did or will comply in all material respects with
the applicable requirements of the Securities Act, (ii) when the Prospectus is
filed in accordance with Rule 424(b), the Prospectus (and any supplements
thereto) will comply in all material respects with the applicable requirements
of the Securities Act, (iii) the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and (iv) the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b), the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Securities Holder specifically for use in connection with the preparation of
the Registration Statement or the Prospectus (or any supplement thereto) or
any information furnished in writing to the Company by or on behalf of any
underwriter specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto), other
than that the Company has no knowledge of any such untrue statement or
omission in respect of such information.
(c) (i) The public accountants who certified the Company's financial
statements in the Registration Statement are independent certified public
accountants within the meaning of the Securities Act; (ii) the historical
consolidated financial statements, together with the related schedules and
notes, forming part of the Registration Statement and the Prospectus comply in
all material respects with the requirements of the Securities Act and have
been prepared, and present fairly the consolidated financial condition,
results of operations and changes in financial condition of the Company and
its consolidated subsidiaries at the respective dates and for the respective
periods indicated, in accordance with generally accepted accounting principles
applied consistently throughout such periods (except as specified therein);
and (iii) the historical consolidated financial data set forth in the
Prospectus is derived from the accounting records of the Company and its
consolidated subsidiaries, and is a fair presentation of the data purported to
be shown; and the pro forma consolidated financial statements (if any),
together with the related notes, forming part of the Registration Statement
and the Prospectus, comply in all material respects with the requirements of
Regulation S-X under the Securities Act.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES HOLDERS.
Each participating Securities Holder shall, in connection with a Public
Sale Event, if required by the terms of a Purchase Agreement, if any, relating
to such Public Sale Event, for itself severally and not jointly represent and
warrant to the underwriter or underwriters and each other Securities Holder
participating in such Public Sale Event as follows:
(a) Such Securities Holder has all requisite power and authority to
enter into and carry out the terms of this Agreement and such Purchase
Agreement and the other agreements and instruments related to such agreements
to which it is a party.
(b) Each of this Agreement and such Purchase Agreement has been duly
authorized, executed and delivered by or on behalf of such Securities Holder
and constitutes the legal, valid and binding obligation of such Securities
Holder, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles.
(c) Such Securities Holder, immediately prior to any sale of shares
of Registrable Common pursuant to such Purchase Agreement, will have good
title to such shares of Registrable Common, free and clear of all liens,
encumbrances, equities or claims (other than those created by this Agreement);
and, upon payment therefor, good and valid title to such shares of Registrable
Common will pass to the purchaser thereof, free and clear of any lien, charge
or encumbrance created or caused by such Securities Holder.
(d) Such Securities Holder has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in, under the Exchange Act or other
applicable law, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of shares of Registrable Common.
(e) Written information furnished by or on behalf of such Securities
Holder to the Company expressly for use in the Registration Statement or
related Prospectus or amendment thereof or supplement thereto will not contain
as of the effective date of such Registration Statement or as of the date of
any Prospectus or as of the date of any amendment thereof or supplement
thereto any untrue statement of a material fact or omit to state any material
fact required be stated or necessary to make the statements in such
information not misleading.
SECTION 9. DELIVERY OF COMFORT LETTERS AND LEGAL OPINIONS.
(a) On (x) the date that the Shelf Registration Statement is
declared effective by the Commission, (y) the date a post-effective amendment
to the Shelf Registration Statement, if any, covering the most recent annual
or quarterly financial statements of the Company is declared effective by the
Commission, and (z) the date that a Registration Statement relating to a Sale
Event in which the Securities Holders participate is declared effective by the
Commission, the Company shall comply with the following:
(i) The Company shall have received, and delivered to the
Securities Holders participating in such Sale Event, a copy of a "Comfort"
letter or letters, or updates thereof according to customary practice, of the
independent certified public accountants who have certified the Company's
financial statements included in the Registration Statement covering
substantially the same matters with respect to the Registration Statement
(including the Prospectus) and with respect to events subsequent to the date
of the Company's financial statements as are reasonably customarily covered in
accountants' letters delivered to underwriters in underwritten offerings of
securities. The Company will use its best efforts to cause such "comfort'
letters to be addressed to such Securities Holders.
(ii) The Securities Holders participating in such offering
shall have received an opinion and any updates thereof of outside counsel to
the Company reasonably satisfactory to such Securities Holders and any
underwriters or purchasers covering substantially the same matters as are
customarily covered in opinions of issuer's counsel delivered to underwriters
in underwritten offerings of securities, addressed to each of such Securities
Holders and any underwriters or purchasers participating in such offering and
dated the closing date thereof.
SECTION 10. MISCELLANEOUS.
10.1 Notices. Any notice, demand, claim, request, waiver or consent or
other communication required or permitted to be given under the provisions of
this Agreement shall be in writing and shall be deemed to have been duly
delivered if delivered by any of the following means of delivery, and shall be
deemed to have been duly delivered and received on the date (or the next
business day if delivery is not made on a business day) of personal delivery
or facsimile transmission or on the date (or the next business day if delivery
is not made on a business day) of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or on the date
(or the next business day if delivery is not made on a business day) of a
stamped receipt, if sent by an overnight delivery service, and sent to the
following addresses (or to such other address as any party may request by
notifying the other parties listed below in accordance with this Section):
(a) If to the Company:
@Track Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ Liddell & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Buyer:
MinorPlanet Systems PLC
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: General Counsel
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ 275 9809
with a copy to:
Mishcon de Reya, Solicitors
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▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile: 011 44 020 7404 3014
with a copy to:
▇▇▇▇▇ & Wood LLP
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to the Other Holders:
At the address of each such Other Holder as set forth on the
books and records of the Company (which shall be such Other
Holder's address as set forth on its Letter of Transmittal or as
such Other Holder may otherwise notify the Company in writing).
10.2 Interpretation. Notwithstanding any other provision in this
Agreement, all references contained in this Agreement to the number of shares
of Common Stock held by any party shall be interpreted to mean the share
capital prior to the occurrence of the Reverse Stock Split (as such term is
defined in the Stock Purchase and Exchange Agreement by and among the parties
hereto and of even date herewith).
10.3 Amendments and Waivers. The Securities Holders and the Company may
from time to time enter into written amendments, supplements or modifications
to this Agreement for the purpose of adding any provisions hereto or changing
the rights of the Securities Holders or the Company hereunder.
10.4 Termination. This Agreement and the respective obligations and
agreements of the parties hereto, except as otherwise expressly provided
herein, shall terminate on the Termination Date.
10.5 Survival of Representations and Warranties. Except as they may by
their terms relate to an earlier date, all representations a warranties made
hereunder and in any document, certificate or statement delivered pursuant
hereto or in connection herewith execution and delivery of this Agreement and
the termination of any or all of the provisions of this Agreement.
10.6 Headings. The descriptive headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
10.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which when executed and delivered shall be deemed an
original, and all of which when taken together shall be considered one and the
same instrument, and this Agreement shall become effective when such
counterparts have been signed by each of the parties hereto and delivered to
the other parties. The parties hereto agree that signatures of the parties and
their duly authorized officers may be exchanged by facsimile transmission, and
that such signatures shall be binding to the same extent, and have the same
force and effect, as the exchange of original written signatures. The
originals of such signatures shall be sent to the other parties hereto by
overnight courier.
10.8 Governing Law. This agreement shall be governed by, and construed in
accordance with, the laws of the state of Delaware without regard to choice of
law provisions.
10.9 Adjustment of Shares. Each reference to a number of shares of Common
Stock in this Agreement shall be adjusted proportionately to reflect any stock
dividend, subdivision, split or reverse split or the like affected with
respect to all outstanding shares of Common Stock.
10.10 No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into, and is not presently a party to, any
agreement with respect to its securities which is inconsistent with the rights
granted to the Securities Holders in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Securities Holders
pursuant to this Agreement shall be superior to, and take precedence over, any
similar rights granted to any other Person by the Company subsequent to the
date hereof.
10.11 Severability. Any provisions of this Agreement prohibited or
rendered unenforceable by any applicable law of any jurisdiction shall as to
such jurisdiction be ineffective to the extent of such prohibition or
unenforceable, without invalidating the remaining provisions hereof, any such
prohibition or unenforceable in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.12 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns to each of the
parties hereunder as otherwise provided herein.
10.13 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto in respect of the matters referred to
herein and supersedes all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof.
10.14 Result if No Acquisition of Common Stock. Notwithstanding any
provision of this Agreement, or any rights that the Buyer or Other Holders may
have hereunder, if the Closing does not occur for any reason, this Agreement
shall be terminated, shall be deemed null and void ab initio, and the Company
shall have no obligations or liabilities whatsoever to any Person under any of
the terms of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
@TRACK COMMUNICATIONS, INC.
By __________________________
Name: ____________________
Title: ___________________
MINORPLANET SYSTEMS PLC
By __________________________
Name: ____________________
Title: ___________________