EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
among
INTEK DIVERSIFIED CORPORATION
and
ROAMER ONE HOLDINGS, INC.,
SECURICOR COMMUNICATIONS, LIMITED,
▇▇▇▇▇▇▇▇ CAPITAL LIMITED,
MIDLAND INTERNATIONAL CORPORATION,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇.,
▇▇▇▇ & ▇▇▇▇, ▇▇ LIMITED,
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated as of December 3, 1996
TABLE OF CONTENTS
Page
1. Definitions.................................................... 2
2. Demand Registration............................................ 4
a. Demand for Registration.................................. 4
b. Number of Demand Registrations........................... 4
c. Expenses................................................. 6
d. Effective Registration Statement......................... 6
e. Priority in Requested Registrations...................... 6
f. Selection of Underwriters................................ 7
3. Incidental Registration........................................ 7
a. Participation in Incidental Registrations................ 7
b. Priority in Incidental Registrations..................... 8
4. Limitations.................................................... 9
5. Registration Procedures........................................ 10
6. Expenses....................................................... 12
7. Indemnification................................................ 13
a. By the Company........................................... 13
b. By Holders of Registrable Securities..................... 13
c. Notice................................................... 14
d. Contribution............................................. 15
8. Holder to Provide Information.................................. 15
9. Rule 144 Reporting............................................. 16
10. Granting of Registration Rights................................. 16
11. Remedies........................................................ 16
12. MISCELLANEOUS................................................... 17
a. Waivers and Amendments................................... 17
b. Entire Agreement......................................... 17
c. Governing Law............................................ 17
d. Notices.................................................. 17
e. Counterparts............................................. 18
f. Successors and Assigns................................... 18
g. Third Parties............................................ 18
h. Termination of Prior Agreement........................... 18
2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December 3, 1996, by and among INTEK DIVERSIFIED CORPORATION, a California
corporation (the "Company"), ROAMER ONE HOLDINGS, INC. ("Roamer"), a Delaware
corporation, SECURICOR COMMUNICATIONS LIMITED, ("Securicor Communications"), a
corporation organized under the laws of England and Wales, SECURICOR
INTERNATIONAL LIMITED ("Securicor International" and, together with Securicor
Communications, "Securicor"), a corporation organized under the laws of England
and Wales, ▇▇▇▇▇▇▇▇ CAPITAL LIMITED ("▇▇▇▇▇▇▇▇"), a corporation organized under
the laws of Ontario, Canada, MIDLAND INTERNATIONAL CORPORATION ("Midland"), a
Delaware corporation, ANGLO YORK INDUSTRIES, INC. ("Anglo York"), a Delaware
corporation, ▇▇▇▇ & ▇▇▇▇, ▇▇ LIMITED, a limited liability company organized
under the laws of Hong Kong, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and such other holders of
Registrable Securities (as defined herein) as may execute and deliver a
counterpart of this Agreement to the Company.
Recitals
A. On September 23, 1994, the Company entered into a Registration Rights
Agreement (the "1994 Registration Rights Agreement") granting certain
registration rights to Simmonds, Roamer, Anglo York and ▇▇▇▇▇▇ ▇▇▇▇▇.
B. On June 18, 1996, the Company entered into a Stock Purchase Agreement with
Securicor Communications (the "SECURICOR AGREEMENT), pursuant to which the
Company has agreed to acquire all of the stock (other than certain
preferred stock) of Securicor Radiocoms Limited, a wholly-owned subsidiary
of Securicor.
C. On September 18, 1996, the Company entered into an Amended and Restated
Sale of Assets and Trademark Agreement (the "▇▇▇▇▇▇▇▇ AGREEMENT; and
collectively with the SECURICOR AGREEMENT, the INVESTOR AGREEMENTS") with
▇▇▇▇▇▇▇▇ and Midland, pursuant to which ▇▇▇▇▇▇▇▇ AGREEMENT the Company
acquired certain assets of Midland.
D. Pursuant to the terms of the SECURICOR AGREEMENT, upon consummation of the
transactions contemplated in the SECURICOR AGREEMENT Securicor
Communications is to acquire 25,000,000 shares of the common stock, par
value $0.01 per share, of the Company (the "Common Stock"), increasing
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Securicor's holdings of Common Stock to 25,937,042 shares (approximately
63.7% of the then issued and outstanding shares of Common Stock).
E. Pursuant to the terms of the ▇▇▇▇▇▇▇▇ AGREEMENT, Midland acquired 150,000
shares of Common Stock as of the date hereof, and upon consummation of the
transactions contemplated in the SECURICOR AGREEMENT, Midland is to
acquire up to 2,350,000 additional shares of Common Stock thereby
increasing Midland and ▇▇▇▇▇▇▇▇' beneficial interest in Common Stock to up
to 5,044,183 shares (12.4% of then issued and outstanding shares of Common
Stock).
F. The termination of the 1994 Registration Rights Agreement, the grant of
the registration rights and other shareholder rights contained herein and
the execution and delivery of this Agreement by the parties hereto is a
condition precedent to Securicor Communications' and ▇▇▇▇▇▇▇▇' and
Midland's obligations under the INVESTOR AGREEMENTS.
Agreements
NOW THEREFORE, the parties to this Agreement hereby agree as
follows:
1. Definitions.
For purposes of this Agreement, unless the context otherwise requires, the
following terms have the meanings set forth below:
"COMMISSION" means the Securities and Exchange Commission or any
other United States federal agency at the time administering the Securities Act.
"COMMON STOCK" has the meaning provided in the
recitals.
"DEMAND REGISTRATION" means a registration of Registrable Securities
by the Company pursuant to a Demand Registration Request of a then Eligible
Demand Holder pursuant to Section 2 of this Agreement
"DEMAND REGISTRATION REQUEST" means a written request by a then
Eligible Demand Holder for the registration of Registrable Securities.
"ELIGIBLE DEMAND HOLDER" means (a) each of Securicor, ▇▇▇▇▇▇▇▇,
Midland and Roamer, and (b) Anglo York to the extent
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that Anglo York holds, and only with respect to, Registrable Securities which
are eligible to be registered by the Company under the Securities Act on a Form
S-3 Registration Statement (as determined by agreement between the Company and
the Holder of such Registrable Securities).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission enacted from time to
time in connection therewith, as the same shall be in effect from time to time.
"HOLDER" means, so long as such Person owns a beneficial interest in
Common Stock, Roamer, Securicor, ▇▇▇▇▇▇▇▇, Anglo York and such other holders of
Registrable Securities who are parties hereto, and their respective successors
and assigns.
"PERSON" means any individual, partnership, limited liability
company, joint venture, corporation, trust, unincorporated organization, or
governmental entity (including any department or agency thereof).
"REGISTRATION EXPENSES" means, except as otherwise set forth in this
Agreement, all expenses incident to the Company's performance of or compliance
with its obligations to register Registrable Securities under this Agreement,
including, without limitation, (a) all registration, filing and NASD fees, (b)
all fees and expenses of complying with applicable United States federal and
state securities laws, (c) all word processing, duplicating and printing
expenses, (d) messenger and delivery expenses, (e) the fees and disbursements of
counsel for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (f) if shares of Midland, Securicor or
Roamer are being registered pursuant to a Demand Registration under this
Agreement, the reasonable fees and disbursements of counsel retained by Midland,
Securicor or Roamer in connection with such registration, up to an aggregate
maximum amount of $25,000 for such registration (it being understood that if
more than one of Midland, Securicor and Roamer is participating in any such
registration they shall mutually agree on a single counsel to represent all of
them with respect to such registration), (g) premiums and other costs of
policies of insurance against liabilities arising out of the public offering of
Registrable Securities (if the Company elects to obtain any such insurance), and
(h) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts, commissions and
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transfer taxes, if any, related to the sale of a Holder's Registrable Securities
pursuant to such registration.
"REGISTRABLE SECURITIES" means (a) any share of Common Stock now or
hereafter held by a Holder, (b) any option or other right to acquire Common
Stock, and (c) any securities issued or issuable with respect to Registrable
Securities, whether by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise. Registrable Securities shall cease to be such when
(i) such Registrable Securities have been disposed of in accordance with a
registration statement which shall have become effective under the Securities
Act, or (ii) such Registrable Securities shall have been sold in a manner
complying with the resale provisions of Rule 144 under the Securities Act (or
any successor provision thereto), or (iii) such Registrable Securities shall
have been transferred, new certificates evidencing such Registrable Securities
without legends restricting further transfer shall have been delivered by the
Company, and subsequent public distributions of such Registrable Securities
shall neither require registration under the Securities Act nor qualification
(or any similar filing) under any state securities or "blue sky" law then in
effect, or (iv) such Registrable Securities shall have ceased to be issued and
outstanding.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission enacted from time to time in
connection therewith, as the same shall be in effect from time to time.
2. Demand Registration.
a. Demand for Registration. Upon the receipt from a then Eligible Demand
Holder of a Demand Registration Request for the registration of some or all of
the Registrable Securities owned by such Eligible Demand Holder at the time of
such Demand Registration Request, the Company shall, as soon as reasonably
practicable, but in any event within 30 calendar days after receipt of a Demand
Registration Request: (i) file a registration statement the form of which is,
under the rules and regulations of the Commission, suitable for effecting a
public offering in which the Eligible Demand Holders shall be entitled to offer
for sale and to sell, pursuant to such registration statement and in the manner
requested by such Eligible Demand Holder in the Demand Registration Request, the
amount of Registrable Securities as specified in such Demand Registration
Request; and (ii) use its best efforts to cause such registration
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statement to become effective within 90 days after the filing of the
registration statement. The Company shall use its best efforts to cause such
registration statement to remain effective for the lesser of 150 days after the
date such registration statement is declared effective or the period required to
effect such sale of Registrable Securities; provided, however, that if all
shares registered pursuant to such registration statement are to be sold in a
firm commitment underwriting and the underwriter or underwriters determine, in
its or their sole discretion, that a period greater than 150 days is necessary
in order to consummate such offering, the Company shall use commercially
reasonable efforts to cause such registration statement to remain in effect for
the period requested by the underwriter or underwriters.
b. Number of Demand Registrations. Each of the Eligible Demand Holders
shall be entitled to the number of demand registrations under this Section 2(a)
as set forth below opposite their names, PROVIDED, that (i) the minimum number
of Registrable Securities offered for registration pursuant to a Demand
Registration shall be as set forth below opposite the name of the Holder
demanding such registration, and (ii) the reasonably anticipated aggregate
offering price of such Registrable Securities offered pursuant to such Demand
Registration exceeds Three Million Dollars ($3,000,000):
NO. OF DEMAND MINIMUM SHARES
ELIGIBLE DEMAND HOLDER REGISTRATIONS To be Registered
---------------------- ------------- ----------------
Securicor 5 2,500,000
▇▇▇▇▇▇▇▇ and Midland, 3 1,250,000
collectively
Roamer 2 1,250,000
Anglo York 1 NO MINIMUM
; provided, however, that the minimum number of shares to be registered by each
Eligible Demand Holder shall be adjusted as appropriate to reflect any stock
dividends, stock splits, combinations, exchanges, reorganizations,
recapitalizations or reclassifications of the Registrable Securities or in
connection with any merger, consolidation or other similar business combination
transaction involving the Company. In the event that an Eligible Demand Holder
delivering a Demand Registration Request determines for any reason (other than
at the request or recommendation of the Company or the managing underwriters)
not
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to proceed with a registration of Registrable Securities requested pursuant to
this Section 2 at any time before the registration statement has been declared
effective by the Commission and such registration statement, if theretofore
filed with the Commission, is withdrawn with respect to the Registrable
Securities covered thereby, and such Eligible Demand Holder reimburses the
Company for the Registration Expenses incurred by it in connection therewith,
then the Eligible Demand Holder shall not be deemed to have exercised one of its
Demand Registration rights. If the Eligible Demand Holder determines not to
proceed with such a Demand Registration upon the request or recommendation of
the Company or the managing underwriters, the Eligible Demand Holder shall not
be required to reimburse the Company for its Registration Expenses and the
Eligible Demand Holder shall not be deemed to have exercised one of its Demand
Registration rights.
The Company shall not, without the prior written consent of Securicor,
Midland, ▇▇▇▇▇▇▇▇ and Roamer, effect any registration of its securities (other
than on Form S-4 or Form S-8) from the date the Company receives a Demand
Registration Request until the earlier of (a) 90 days after the date on which
all securities covered by such Demand Registration Request have been sold or (b)
150 days after the effective date of the registration statement covering such
Registrable Securities. If the Company does not effect a registration statement
requested pursuant to a Demand Registration Request under this Section 2 for the
reasons set forth in the immediately preceding sentence, the Eligible Demand
Holders shall not be deemed to have exercised one of their Demand Registration
rights.
c. Expenses. Except as otherwise provided herein, the Company shall bear
all Registration Expenses associated with any Demand Registration undertaken
pursuant to a Demand Registration Request initiated by Securicor, Midland or
Roamer. The Company shall, in the aggregate on a one-time basis, bear only
$25,000 in Registration Expenses incurred by Anglo York for registrations
undertaken pursuant to this Section 2 which were initiated by a Demand
Registration Request of Anglo York, with the balance as reasonably estimated by
the Company, or adequate security therefor as determined in the sole discretion
of the Company, to be provided or paid to the Company by Anglo York at the time
the Company agrees to undertake a Demand Registration at its request. Each
Holder participating in any such registration shall be responsible for, and
shall pay, any transfer taxes and any fees or commissions of underwriters,
selling brokers and dealers relating to the sale or distribution of the
Registrable
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Securities being sold by such Holder pursuant to such registration.
d. Effective Registration Statement. A registration requested pursuant to
this Section 2 shall not be deemed to be effected (i) if a registration
statement with respect thereto shall not have become effective, (ii) if, after
it has become effective, such registration is interfered with for any reason by
any stop order, injunction or other order or requirement of the Commission or
any Person, and the result of such interference is to prevent the Eligible
Demand Holder(s) of Registrable Securities to be sold thereunder from disposing
thereof in accordance with the intended methods of disposition, or (iii) if the
conditions to closing (other than those to be performed by the Eligible Demand
Holder(s)) specified in the purchase agreement or underwriting agreement entered
into in connection with any underwritten registration shall not be satisfied or
waived with the consent of the Eligible Demand Holder(s) of Registrable
Securities that were to have been sold thereunder.
e. Priority in Requested Registrations. If a Demand Registration pursuant
to this Section 2 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each Person
requesting registration of Registrable Securities) that, in its opinion, the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering within a price range acceptable to the
Eligible Demand Holder(s) demanding such Demand Registration, the Company will
include in such registration to the extent of the number which the Company is so
advised can be sold in such offering (i) first, Registrable Securities requested
to be included in such registration for each Eligible Demand Holder exercising
its right to demand registration pursuant to this Section 2 in an amount
determined pursuant to the following formula: (x) the number of Registrable
Securities which such Eligible Demand Holder's Demand Registration Request
demands be included in such registration, divided by, (y) the aggregate number
of Registrable Securities for which Demand Registration Requests are made with
respect to the subject registration; and (ii) second, securities of the Company
proposed by the Company to be sold for its own account. If two or more Eligible
Demand Holders made demand and pursuant to the foregoing managing underwriters
opinion the aggregate number of Registrable Securities stated in such Eligible
Demand Holders' Demand Requests exceed the number of securities which can be
sold in such offering within a price range acceptable to the Eligible Demand
Holder(s) demanding such Demand Registration, then any such Eligible Demand
Holders may withdraw all of their
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Demand Request being deemed to have exercised a Demand and without being liable
to the Company for any Registration Expenses. If this Section 2 is applicable in
connection with any such registration, (i) no securities other than Registrable
Securities or securities of the Company proposed by the Company to be sold for
its own account shall be covered by such registration, (ii) the Company will not
grant any registration rights inconsistent with the provisions of this Section
2, and (iii) each Eligible Demand Holder selling Registrable Securities pursuant
to such registration shall be deemed to have exercised a Demand right.
f. Selection of Underwriters. In the case of any public offering pursuant
to the exercise of a right for Demand Registration by an Eligible Demand Holder,
the underwriter or underwriters for such offering shall be selected by the
Company.
3. Incidental Registration.
a. Participation in Incidental Registrations. Each time the Company shall
determine to proceed with the preparation and filing of a registration statement
under the Securities Act in connection with the proposed offer and sale for
money of any of its equity securities, whether by the Company or any of its
security holders (other than on Forms S-4 or S-8, or any successor or similar
form), the Company shall give written notice of its determination to the Holders
as soon as practical, but in no event, less than 30 days prior to the filing of
such registration statement with the Commission. Upon the written request of a
Holder given to the Company within 15 days after the mailing of any such notice
by the Company, the Company shall, subject to Section 5 hereof, cause all
Registrable Securities which such Holder has requested to be registered to be
included in such registration statement; provided, however, that if, at any time
after giving written notice of its intention to register any equity securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
either not to register or to delay registration of such equity securities, the
Company may, at its election, give written notice of such determination to the
Holders and, upon the giving of such notice, (i) in the case of a determination
not to register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but shall pay all Registration
Expenses incurred by Holders of Registrable Securities in connection therewith),
and (ii) in the case of a determination to delay registering, shall be permitted
to delay registering any Registrable Securities for the same period as the
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delay in registering such other equity securities. No registration effected
under this Section 3 shall relieve the Company of its obligation to effect any
registration under Section 2, except as contemplated by Section 4. A Holder's
participation in any such incidental registration shall not require that it pay
any portion of the Registration Expenses incurred by the Company, except
transfer taxes, and any fees, discounts and commissions of underwriters, selling
brokers or dealers applicable to shares sold by such Holder.
b. Priority in Incidental Registrations. If (i) a registration pursuant to
this Section 3 involves an underwritten offering of the securities so being
registered to be distributed (on a firm commitment basis) by or through one or
more underwriters of recognized standing under underwriting terms appropriate
for such a transaction, and (ii) the managing underwriter of such underwritten
offering shall inform the Company and the Holders (if any Registrable Securities
held by the Holders have been requested to be included in such underwritten
offering) by letter of its belief that the distribution of all or a specified
number of the Registrable Securities requested to be included concurrently with
the securities being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such underwriters
(such writing to state the appropriate number of the Registrable Securities
requested to be included which may be distributed without such effect), then the
Company may, upon written notice to all the Holders, reduce (if and to the
extent stated by such managing underwriter to be necessary to eliminate such
effect) the number of the Registrable Securities requested to be included so
that the resultant aggregate number of the Registrable Securities requested to
be included that will be included in such registration shall be equal to the
maximum number of shares stated by such managing underwriter letter as would not
so interfere; provided, however, that the priority in such registration shall be
as follows, (i) first, securities offered for the account of the Company or, if
such registration is for a security holder exercising a Demand Registration,
then securities offered for the account of such security holder, and (ii)
second, the Registrable Securities of each Holder pro rata in proportion to
their share of the then outstanding Registrable Securities; provided, that
Registrable Securities of Securicor or any of its Affiliates shall not be
included in the first such registration by the Company after the date of this
Agreement unless, and only to the extent that, the aggregate number of
Registrable Securities being offered for the account of the Company, ▇▇▇▇▇▇▇▇,
Midland and Roamer, collectively, do not equal the maximum number of shares
stated by
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such managing underwriter letter; and provided, further, that during the
two-year period following the date hereof Securicor and its Affiliates shall
not, collectively or individually, be entitled to offer for registration
pursuant to the foregoing clause (ii) more than 25% of the number of shares
stated in such managing underwriter's letter. Notwithstanding anything in this
Section 3.b. to the contrary, Holders shall not have any right to include their
Registrable Securities in any distribution or registration of securities by the
Company, which is a result of a (1) merger, (2) consolidation, (3) acquisition,
(4) exchange offer, (5) recapitalization, (6) other reorganization, (7) dividend
reinvestment plan, (8) stock option plan or other employee benefit plan, or (9)
any similar transaction having the same effect.
4. Limitations. Notwithstanding the provisions of Sections 2, and 3 hereof: (a)
the Company shall have the right to delay or suspend the preparation and filing
of a registration statement for up to 90 days if in the reasonable and good
faith judgment of a majority of the Directors on the Board of Directors of the
Company such preparation or filing would impede, delay or interfere in any
material fashion with any material financing or material business transaction
actively being pursued by the Company at time of receipt of the request for such
registration or with the ability of the Company to conduct its affairs or would
have a material adverse effect on the business, properties or financial
condition of the Company; provided, however, that the Company shall use its best
efforts to cause any such registration statement to become effective within 150
days of receipt of the request therefor and shall only be entitled to utilize
this clause once in any 12 month period; (b) if, prior to receiving a request
for registration, the Company is working on an underwritten public offering of
Common Stock (a "Company Initiated Public Offering") and is advised by the
managing underwriter(s) in writing that such offering would in its or their
opinion be adversely affected by such filing, then the Company shall have the
right, upon notice to the Holder requesting registration within 14 days after
receipt of such request, to delay or suspend the filing of the registration
statement requested by such Holder; provided that the Company shall use its best
efforts to cause any such registration statement requested by the Holders to
become effective within 180 days (or, if required by the underwriters for the
Company Initiated Public Offering, within 270 days) after the date on which all
securities covered by the Company Public Offering have been sold, and that the
Company shall use its best efforts to include any Registrable Securities that
are the subject of a notice delivered by Holders under Section 3 in the
registration
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statement for such Company Initiated Public Offering; and (c) the Company shall
not be required to prepare or file a registration statement with respect to any
Demand Request under Section 2 if the reasonably anticipated aggregate offering
price of such Registrable Securities does not exceed Three Million Dollars
($3,000,000) or if the Holders making the Demand Registration Requests would be
able to sell all the Registrable Securities they have requested to sell pursuant
to Rule 144 under the Securities Act.
5. Registration Procedures. If and whenever the Company is required by the
provisions of Sections 2 or 3 to effect the registration of any Registrable
Securities under the Securities Act, the Company will:
a. prepare and file with the Commission a registration statement with
respect to such Registrable Securities, and use its best efforts to cause such
registration statement to become effective as provided herein;
b. prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective until the earlier
of (i) the date on which all Registrable Securities covered by such registration
statement have been sold and (ii) 150 days after the effective date of such
registration statement;
c. use its best efforts to register or qualify the Registrable Securities
for sale under such other securities or blue sky laws of such jurisdictions as
the Holders may reasonably request (such reasonableness being determined on the
basis of factors such as the cost to the Company) and do any and all other acts
and things which may be reasonably necessary or desirable to enable the Holders
to consummate the disposition of the Registrable Securities in such
jurisdictions; provided, however, that the Company shall not be required to
qualify generally to do business as a foreign corporation subject itself to
taxation, or consent to general service of process, in any jurisdiction wherein
it would not, but for the requirements of this Section 5, be obligated to be so
qualified;
d. furnish to the Holders and to the underwriters of the securities being
registered a reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus, and such other documents as the
Holders or underwriters may reasonably request in order to facilitate the public
offering of such securities;
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e. prepare and file with the Commission, promptly upon the request of the
Holders, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Holders (and concurred in by
counsel for the Company), is required under the Securities Act or the rules and
regulations thereunder in connection with the distribution of the Registrable
Securities by the Holders;
f. prepare and promptly file with the Commission, and promptly notify the
Holders of the filing of, any amendment or supplement to such registration
statement or prospectus as may be necessary to correct any statements or
omissions if, at the time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus as then in
effect would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statement therein, in the light of the
circumstances in which they were made, not misleading;
g. notify each seller of any Registrable Securities covered by such
registration statement and the managing underwriter (as such term is defined in
Rule 12b-2 under the Exchange Act), if any, promptly and, if requested by any
such person, confirm such notification in writing, (i) when a prospectus or any
prospectus supplement has been filed with the Commission, and, with respect to a
registration statement or any post-effective amendment thereto, when the same
has been declared effective by the Commission, (ii) of any request by the
Commission for amendments or supplements to a registration statement or related
prospectus, or for additional information, (iii) of the issuance by the
Commission of any stop order or the initiation of any proceedings for such or a
similar purpose (and the Company shall make every commercially reasonable effort
to obtain the withdrawal of any such order at the earliest possible moment),
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose (and the Company shall make every commercially reasonable effort to
obtain the withdrawal of any such suspension at the earliest possible moment),
(v) of the occurrence of any event which requires the making of any changes to a
registration statement or related prospectus so that such documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (and
the Company shall promptly
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prepare and furnish to such seller and managing underwriter a reasonable number
of copies of a supplemented or amended prospectus such that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an 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 are made, not
misleading), and (vi) of the Company's determination that the filing of a
post-effective amendment to the Registration Statement shall be necessary or
appropriate. Each Holder shall be deemed to have agreed by acquisition of
Registrable Securities that upon the receipt of any notice from the Company of
the occurrence of any event of the kind described in clause (v) of this Section
5(g), such Holder shall forthwith discontinue such Holder's offer and
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder shall have received
copies of a supplemented or amended prospectus which is no longer defective as
contemplated by clause (v) of this Section 5(g), and, if so directed by the
Company, shall deliver to the Company, at the Company's expense, all copies
(other than permanent file copies) of the defective prospectus covering such
Registrable Securities which are then in such Holder's possession. In the event
the Company shall provide any notice of the type referred to in the preceding
sentence, the 150-day period mentioned in Section 5.b(ii) shall be extended by
the number of days from and including the date such notice is provided, to and
including the date when each seller of any Registrable Securities covered by
such registration statement shall have received copies of the corrected
prospectus contemplated by clause (v) of this Section 5(g), plus an additional
seven days;
h. at least three days prior to the filing of any amendment or supplement
to such registration statement or prospectus, furnish copies thereof to the
Holders and refrain from filing any such amendment or supplement to which the
Holders shall have reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, unless in the opinion of
counsel for the Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any applicable
federal or state law and such filing will not violate applicable law; and
i. at the request of the Holders, obtain an opinion from
counsel to the Company, and a "cold comfort" letter from an
independent certified public accounting firm of national
13
recognition and standing who have certified the Company's financial statements
included in the registration statement or any amendment thereto, in each case in
form and substance satisfactory to the majority in interest of the Holders
participating in the registration ("Majority Holders"), and covering such
matters of the type customarily covered by such opinions and "cold comfort"
letters as the Majority Holders shall reasonably request.
6. Expenses. Except as otherwise provided herein, the Company shall bear all
reasonable Registration Expenses. Each Holder participating in any such
registration shall be responsible for, and shall pay, any transfer taxes and any
fees or commissions of underwriters, selling brokers and dealers relating to the
sale or distribution of the Registrable Securities being sold by such Holder
pursuant to such registration, as well as any fees of counsel to such Holder
that are not specifically designated as Registration Expenses in Section 1
hereof and any fees and disbursements of any accountants retained by such
Holder.
7. Indemnification.
a. By the Company. The Company shall indemnify and hold harmless each
Holder, its officers, directors and employees, and any underwriter (as defined
in the Securities Act) for such Holder and each person, if any, who controls
such Holder or such underwriter within the meaning of the Securities Act, from
and against any and all loss, damage, liability or claims, to which such Holder,
or any officer, director or employee of such holder, or any such underwriter or
controlling person becomes subject under the Securities Act or otherwise, and
subject to the provisions of Section 8(c) hereof to reimburse them, from time to
time upon request, for any legal or other costs or expenses reasonably incurred
by them in connection with investigating any claims or defending any actions (as
provided herein), insofar as such losses, damages, liabilities, claims, costs or
expenses are caused by any untrue statement or alleged untrue statement of any
material fact contained in such registration statement, any prospectus contained
therein 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, in light of
the circumstances in which they were made, not misleading; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, damage, liability, claim, cost or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission (other than a statement or omission about the
14
Company) made in conformity with information furnished by the Holder seeking
indemnification in writing specifically for use in the preparation of a
registration statement or (ii) a Holder's failure to deliver a copy of the
registration statement, prospectus or any amendments or supplements thereto.
b. By Holders of Registrable Securities. Each Holder of Registrable
Securities included in a registration pursuant to this Agreement shall indemnify
and hold harmless the Company, its officers, directors and agents, each other
Holder, any underwriter and each person, if any, who controls the Company, such
other Holder or such underwriter, from and against any and all loss, damage,
liability or claim, to which the Company or its officers, directors or agents,
or such other Holder or any controlling person and/or any underwriter becomes
subject under the Securities Act or otherwise and to reimburse them, from time
to time upon request, for any legal or other costs or expenses reasonably
incurred by them in connection with investigating any claims or defending any
actions, insofar as such losses, damages, liabilities, costs, or expenses are
caused by any untrue or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance upon and in
strict conformity with written information furnished by such indemnifying Holder
specifically for use in the preparation of such registration statement, provided
that the obligations of the Holder hereunder shall be limited to an amount equal
to the net proceeds to the Holder from the sale of such Holder's Registrable
Securities as contemplated hereunder.
c. Notice. Promptly after receipt by an indemnified party of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will promptly notify the
indemnifying party in writing of the commencement thereof; but the omission to
so notify the indemnifying party will not relieve such indemnifying party from
any liability which it may have to any indemnified party otherwise than
hereunder. In case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
15
assume the defense thereof, with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party shall have the right
to employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such suit, action, claim or
proceeding, (ii) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge of the defense
of such action, suit, claim or proceeding within a reasonable time after notice
of commencement of the action, suit, claim or proceeding, or (iii) such
indemnified party shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party which, if the indemnifying party and the indemnified party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of the
defenses available to such indemnified party. If any of the events specified in
clauses (ii) or (iii) of the preceding sentence shall have occurred or shall
otherwise be applicable, then the fees and expenses of one counsel or firm of
counsel selected by a majority in interest of the indemnified parties shall be
borne by the indemnifying party. If, in any case, the indemnified party employs
separate counsel, the indemnifying party shall not have the right to direct the
defense of such action, suit, claim or proceeding on behalf of the indemnified
party. Anything in this paragraph to the contrary notwithstanding, an
indemnifying party shall not be liable for the settlement of any action, suit,
claim or proceeding effected without its prior written consent (which consent in
the case of an action, suit, claim or proceeding exclusively seeking monetary
relief shall not be unreasonably withheld). Such indemnification shall remain in
full force and effect irrespective of any investigation made by or on behalf of
an indemnified party.
d. Contribution. If the indemnification from the indemnifying party as
provided in this Section 7 is unavailable or is otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
indemnified parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses. The relative fault of such
indemnifying party shall be determined by reference to,
16
among other things, whether any action in question, including any untrue (or
alleged untrue) statement of a material fact or omission (or alleged omission)
to state a material fact, has been made, or relates to information supplied by
such indemnifying party or such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7.c. hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with
any such investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation other than as described above. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
If, however, indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in this Section 7 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration.
8. Holder to Provide Information. In the event a Holder requests a registration
of Registrable Securities, such Holder shall provide all such information and
materials and shall take all such actions as may be reasonably and customarily
required in order to permit the Company to comply with all applicable
requirements of the Commission and to obtain any desired acceleration of the
effective date of such registration statement. Specifically, the Company may
require a Holder to furnish the Company with such information regarding such
Holder and the distribution of its securities as is customarily required in such
registrations as the Company may from time to time reasonably request in writing
and as shall be required by law or the Commission.
9. Rule 144 Reporting. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
17
a. Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities
Act;
b. Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
c. So long as a Holder owns any Registrable Securities, furnish to a
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a Holder to sell any such securities without registration.
10. Granting of Registration Rights. The Company shall not, without the prior
written consent of Holders holding at least 65% of the Registrable Securities
then held by all the Holders, grant to any Person registration rights of any
kind or nature with respect to Registrable Securities or other capital shares or
the Company if such rights would have priority over the rights granted to the
Holders pursuant to this Agreement, whether in terms of the number of shares
which holders may include in any registration, the timing of any registration of
shares, the rights of holders to demand registration of shares held by them at
the time requested by them, or in any other material respect.
11. Remedies. The Company recognizes and agrees that if the Company fails to
comply with its obligations under this Agreement, the Holders may not have an
adequate remedy at law. Such failure will cause the Holders irreparable harm for
which there may be no adequate remedy at law, and the Company hereby consents to
the issuance of an injunction in favor of the Holders by any court of competent
jurisdiction. The right of such Holders to obtain an injunction hereunder shall
not be considered a waiver of any right on the part of the Holders to recover
damages and to assert any other claims for remedies which the Holders may have
at law or in equity. The Company agrees to bear any expenses incurred by the
Holders, including reasonable attorneys fees, in enforcing their rights under
this Agreement except in cases in which it is determined that the Company was
not in breach of its obligation to provide such rights.
18
12. MISCELLANEOUS.
a. Waivers and Amendments. This Agreement may be amended or modified in
whole or in part only by a writing which makes reference to this Agreement
executed by the Company and Holders holding at least 65% of the Registrable
Securities then held by all the Holders. The obligations of any party hereunder
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the party
claimed to have given the waiver; provided, however, that any waiver by any
party of any violation of, breach of, or default under any provision of this
Agreement or any other agreement provided for herein shall not be construed as,
or constitute, a continuing waiver of such provision, or waiver of any other
violation of, breach of or default under any other provision of this Agreement
or any other agreement provided for herein.
b. Entire Agreement. This Agreement sets forth the entire understanding of
the parties hereto and supersedes all prior contracts, agreements, arrangements,
communications, discussions, representations, and warranties, whether oral or
written, among the parties with respect to the subject matter hereof.
c. Governing Law. This Agreement shall in all respects be
governed by and construed in accordance with the internal
substantive laws of the State of New York without giving effect
to the principles of conflicts of law thereof.
d. Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and be deemed to have been duly given if
personally delivered or five business days after being sent by registered or
certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below.
If to the Company: INTEK DIVERSIFIED CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
19
with a copy to: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to a Holder: To the Person and Address specified
on the signature page for such
Holder.
Any party by written notice to the others may change the address of the persons
to whom notices or copies thereof shall be directed.
e. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together will constitute one and the same instrument.
f. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the Company may not assign or transfer its rights hereunder
without the prior written consent of the Holders. A Holder that transfers not
less than 100% of the Registrable Securities it then holds to an entity in a
transaction that is not registered under the Securities Act shall be entitled to
assign its rights hereunder to such entity, which entity shall become a "Holder"
for purposes of this Agreement provided that it assumes and agrees to perform
all the obligations of a Holder under this Agreement.
g. Third Parties. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person or entity
other than the parties hereto any rights or remedies under or by reason of this
Agreement.
h. Termination of Prior Agreement. This Registration Rights Agreement
supersedes and replaces that certain Registration Rights Agreement entered into
between the Company, Roamer, ▇▇▇▇▇▇▇▇ Capital Limited, a corporation organized
under the laws of Ontario, Canada, Anglo York and ▇▇▇▇▇ as of September 23,
1994.
[Remainder of Page Intentionally Left Blank.]
20
IN WITNESS WHEREOF, the undersigned have executed, or have caused
their duly authorized representatives to execute, this Registration Rights
Agreement as of the date first written above.
INTEK DIVERSIFIED CORPORATION
By:_______________________________
Name:
Title:
SECURICOR COMMUNICATIONS, LIMITED SECURICOR INTERNATIONAL, LIMITED
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
▇▇▇▇▇▇▇▇ CAPITAL LIMITED MIDLAND INTERNATIONAL CORPORATION
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
21
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
▇▇▇▇ & ▇▇▇▇, ▇▇ LIMITED ROAMER ONE HOLDINGS, INC.
By:_____________________________ By:_________________________________
Name: Name:
Title: Title:
Address:__________________________ Address:_____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
With copies to: With copies to:
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
__________________________ _____________________________
Tel: __________________________ Tel: _____________________________
Fax: __________________________ Fax: _____________________________
ANGLO YORK INDUSTRIES, INC.
By:_____________________________
Name:
Title:
Address:__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
22
With copies to:
__________________________
__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address:__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
With copies to:
__________________________
__________________________
__________________________
__________________________
Tel: __________________________
Fax: __________________________
23
REGISTRATION RIGHTS AGREEMENT
SHAREHOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned have executed, or have caused
their duly authorized representatives to execute, this Registration Rights
Agreement as of the date first written above.
(If a corporation) _________________________________
By: _____________________________
Name:
Title:
(If an Individual) ___________________________________
Name:
Address: __________________________
__________________________
Telephone:__________________________
Facsimile:__________________________
With copies to: __________________________
__________________________
__________________________
Telephone:__________________________
Facsimile:__________________________
24