EXHIBIT 2
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
June 17, 2003, by and among United Road Services, Inc., a Delaware corporation
(the "Company"), Blue Truck Acquisition, LLC, a Delaware limited liability
company ("Blue Truck"), CFE, Inc., a Delaware corporation ("CFE"), Charter URS
LLC ("Charter") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx," and together with Blue Truck,
CFE and Charter, the "Investors").
WHEREAS, the Company and Blue Truck have entered into that certain
Exchange Agreement, dated as of even date herewith (the "Blue Truck Exchange
Agreement"), pursuant to which the Company is issuing shares of Series B
Participating Preferred Stock of the Company (the "Series B Preferred") to Blue
Truck;
WHEREAS, the Company and CFE have entered into that certain Exchange
Agreement, dated as of even date herewith (the "CFE Exchange Agreement"),
pursuant to which the Company is issuing shares of Series B Preferred to CFE;
WHEREAS, the Company and Charter have entered into that certain
Exchange Agreement, dated as of even date herewith (the "Charter Exchange
Agreement", and together with the Blue Truck Exchange Agreement and the CFE
Exchange Agreement, the "Exchange Agreements"), pursuant to which the Company is
issuing shares of Series C Participating Preferred Stock of the Company (the
"Series C Preferred") to Charter;
WHEREAS, the Company has issued options (the "Options") to purchase
shares of Series C Preferred to Xxxxxxx and Charter pursuant to a Credit
Enhancement Agreement, dated as of even date herewith, by and among the Company,
Xxxxxxx and Charter (the "Credit Enhancement Agreement");
WHEREAS, the execution and delivery of this Agreement is required
pursuant to the Exchange Agreements and the Credit Enhancement Agreement; and
WHEREAS, the parties are terminating all registration rights previously
agreed to among each other.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Ancillary Agreements" means the Exchange Agreements,
the Credit Enhancement Agreement and other documents executed and delivered in
connection therewith.
(b) "Common Stock" means the common stock, par value
$0.01 per share (subject to adjustment), of the Company.
(c) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder.
(d) "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any similar "short form" registration
statement subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
(e) "Holder" means any Person owning or having the right
to acquire Registrable Securities, or any assignee thereof in accordance with
Section 11 hereof.
(f) "Initiating Holders" means the Holder(s) initiating a
registration request under Section 2(a) hereof.
(g) "Investor Request" means a request from Blue Truck or
Charter.
(h) "majority in interest of the Initiating Holders"
means Initiating Holders holding a majority of the Registrable Securities held
by all Initiating Holders.
(i) "Person" means any individual, partnership, limited
liability company, joint venture, corporation, association, trust or any other
entity or organization.
(j) "Preferred Shares" means shares of Series B Preferred
and shares of Series C Preferred of the Company owned by an Investor at any time
or any assignee thereof in accordance with Section 11 hereof.
(k) "Public Offering" means a public offering of Common
Stock pursuant to a registration statement of the Company that is declared
effective by the SEC.
(l) "Register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(m) "Registrable Securities" means (1) any shares of
Common Stock directly or indirectly issuable or issued upon conversion of the
Preferred Shares, (2) any Preferred Shares only in the event that the Conversion
Trigger Date (as defined in the certificate of designations of such class) does
not occur within six months of the date hereof, (3) any shares of Common Stock
hereafter acquired by the Investors (or any assignee thereof in accordance with
Section 11) other than as incentive compensation from the Company or its
subsidiaries or as part of any of the Company's employee or director stock
option or similar plans and (4) any shares of Common Stock issued to the
Investors (or any assignee thereof in accordance with Section 11) as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in
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replacement of, such Common Stock or other warrants, rights or securities;
PROVIDED, however, that any Registrable Securities sold by an Investor in a
transaction in which such Investor's rights under this Agreement are not
assigned pursuant to Section 11 below shall cease to be Registrable Securities
from and after the time of such sale.
(n) "SEC" means the Securities and Exchange Commission.
(o) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(p) "Violation" means any of the following statements,
omissions or violations: (i) any untrue statement or alleged untrue statement of
a material fact contained in a registration statement filed pursuant to this
Agreement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto or any documents filed under
state securities or "blue sky" laws in connection therewith, or (ii) 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 under which such statements were made, not misleading.
2. REQUEST FOR REGISTRATION.
(a) If the Company shall receive a written Investor
Request from Charter at any time, or an Investor Request from Blue Truck at any
time following the initial Public Offering following the date hereof, then the
Company shall, within ten (10) days of the receipt thereof, give written notice
of such request to all Holders and, subject to the limitations of Section 2(c)
below, file (as expeditiously as practicable, and in any event within sixty (60)
days after the receipt of such request) and use its best efforts to have
declared effective a registration statement under the Securities Act with
respect to all Registrable Securities which the Holders request to be registered
by the giving of notice to the Company within thirty (30) days after the mailing
of the Company's notice referred to above, each such notice to be given in
accordance with Section 18 below.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2 and the Company shall include such information in the written
notice referred to in Section 2(a); PROVIDED, HOWEVER, that notwithstanding
anything herein to the contrary, in no event shall the Company be required to
effect more than two underwritten offerings in any 12 month period. In the event
of an underwritten offering, the right of any Holder to include such Holder's
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section 4(e))
enter into an underwriting agreement in customary form with the underwriter or
underwriters so selected for such underwriting by a majority in interest of the
Initiating Holders; PROVIDED, HOWEVER, that no
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Holder shall be required to make any representations, warranties or indemnities
except as they relate to such Holder's ownership of shares and authority to
enter into the underwriting agreement and to such Holder's intended method of
distribution, and the liability of such Holder (whether by indemnification,
contribution or otherwise) shall be limited to an amount equal to the net
proceeds from the offering received by such Holder. Notwithstanding any other
provision of this Section 2, if the underwriter advises the Initiating Holders
that marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise the Company and the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among the Holders of Registrable Securities that have elected to
participate in such underwritten offering, in proportion (as nearly as
practicable) to the amount of Registrable Securities (on an as-converted basis)
requested to be included in the registration.
(c) The Company shall be obligated to effect no more than
two (2) registrations pursuant to an Investor Request under this Section 2 by
Charter, and no more than one (1) registration pursuant to an Investor Request
under this Section 2 by Blue Truck, subject to Section 2(a); PROVIDED, HOWEVER,
that the Company shall not be obligated to effect more than one (1) registration
pursuant to this Section 2 in any six (6) month period. A registration which
does not become and remain effective throughout the proposed plan of
distribution or six (6) months, whichever is shorter, will not be considered a
registration required to be effected by the Company according to this Section
2(c). The Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to this Section 2 if the registration
request is subsequently withdrawn at the request of a majority of the Initiating
Holders of the Registrable Securities to be registered (in which case all
Initiating Holders shall bear such expenses pro rata based upon the number of
Registrable Securities that were to be requested in the withdrawn registration
by the Initiating Holders); PROVIDED, HOWEVER, that if at the time of such
withdrawal, the Initiating Holders have learned of a material adverse change in
the condition, business, or prospects of the Company different from that known
to the Initiating Holders at the time of their request and have withdrawn the
request with reasonable promptness following disclosure by the Company of such
material adverse change, then the Initiating Holders shall not be required to
pay any of such expenses and shall retain their rights pursuant to this Section
2.
(d) Notwithstanding the foregoing, if the Company shall
furnish to the Initiating Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for up to sixty (60) days after receipt of the request of the
Initiating Holders; PROVIDED, HOWEVER, that the Company may not utilize this
right for more than an aggregate of one hundred twenty (120) days in any twelve
(12) month period; PROVIDED, FURTHER, that if at the time of any Investor
Request for a registration pursuant to this Section 2, the Company has fixed
plans (following a resolution of the Board of Directors of the Company so
authorizing) to file within sixty (60) days after such request a registration
statement covering the sale of any of its securities
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in a public offering under the Securities Act, no registration shall be required
to be initiated pursuant to this Section 2 until ninety (90) days after the
effective date of such Company registration unless the Company is no longer
proceeding diligently to effect such registration and so long as the Company
shall provide the Holders with the right to participate in such public offering
pursuant to, and subject to, Section 3.
(e) Upon the request of a majority of the Initiating
Holders for the termination of a registration, the Company shall terminate such
registration and such registration shall not be considered a registration
required to be effected by the Company under Section 2(c); provided, that the
Initiating Holders pay the expenses of such registration in accordance with
Section 2(c) unless excused from doing so under the proviso set forth in Section
2(c).
3. PIGGYBACK REGISTRATION. If the Company proposes to register
(including for this purpose a registration effected by the Company for
stockholders other than Holders of Registrable Securities) any of its Common
Stock under the Securities Act in connection with the public offering of such
Common Stock for cash (other than a registration on Form S-8 (or similar or
successor form) relating to the sale of securities to participants in a Company
stock plan or to other compensatory arrangements to the extent includable on
Form S-8 (or similar or successor form), or a registration on Form S-4 (or
similar or successor form), the Company shall, at such time, promptly give each
Holder written notice of such registration. Upon the written request of each
Holder given within twenty (20) days after mailing of such notice by the Company
in accordance with Section 18, the Company shall, subject to the provisions of
Section 9, use its best efforts to cause to be registered under the Securities
Act all of the Registrable Securities that each such Holder has requested to be
registered. Notwithstanding any other provision of this Section 3, if the
underwriter advises the Company that marketing factors require a limitation of
the number of shares to be underwritten, then the Company shall so advise all
Holders of Registrable Securities which would otherwise be underwritten pursuant
hereto, and the number of shares of Registrable Securities that may be included
in the underwriting shall be allocated as follows: (i) first, all authorized but
unissued shares of Common Stock the Company proposes to include in the
registration; and (ii) second, among the Holders of Registrable Securities that
have elected to participate in such underwritten offering, in proportion (as
nearly as practicable) to the amount of Registrable Securities (on an
as-converted basis) requested to be included in the registration. The Company
shall have no obligation under this Section 3 to make any offering of its
securities, or to complete an offering of its securities that it proposes to
make. A registration of Registrable Securities pursuant to this Section 3 shall
not be counted as an Investor Request under Section 2.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective promptly, and, upon the
request of the Holders of a majority of the Registrable Securities being
registered thereunder, keep such registration statement effective for up to one
hundred twenty (120) days or until the Holders have completed the distribution
referred to in
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such registration statement, whichever occurs first (but in any event for at
least any period required under the Securities Act); PROVIDED that before filing
such registration statement or any amendments thereto, the Company will furnish
to the Holders copies of all such registration statements or amendments thereto
proposed to be filed.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case without exhibits unless requested by such Holders), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as any of the
Holders may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
"blue sky" laws of such states or jurisdictions as shall be reasonably requested
by the Holders, provided that the Company shall not be required in connection
therewith or as a condition thereto (i) to qualify to do business in any state
or jurisdiction where it would not otherwise be required to qualify but for the
requirements of this clause (d), or (ii) to file a general consent to service of
process in any such state or jurisdiction.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered
by such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading.
(g) Notify each Holder of Registrable Securities covered
by such registration statement and such Holder's underwriters, if any, and
confirm such advice in writing: (i) when the registration statement has become
effective, (ii) when any post-effective amendment to the registration statement
becomes effective and (iii) of any request by the SEC for any amendment or
supplement to the registration statement or prospectus or for additional
information.
(h) Notify each Holder of Registrable Securities if at
any time the SEC should institute or threaten to institute any proceedings for
the purpose of issuing, or should
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issue, a stop order suspending the effectiveness of the Registration Statement.
Upon the occurrence of any of the events mentioned in the preceding sentence,
the Company will use its best efforts to prevent the issuance of any such stop
order or to obtain the withdrawal thereof as soon as possible. The Company will
advise each Holder of Registrable Securities promptly of any order or
communication of any public board or body addressed to the Company suspending or
threatening to suspend the qualification of any Registrable Securities for sale
in any jurisdiction.
(i) (x) cause to be delivered an opinion of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the Holders and, if applicable, the underwriters, and (y)
use its commercially reasonable efforts to cause to be delivered, on the date
that the registration statement with respect to such securities becomes
effective, a "comfort" letter dated such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to (i) the underwriters in an
underwritten public offering, addressed to the underwriters, and, a
reaffirmation of such letter on the date that such Registrable Securities are
delivered to the underwriters for sale or (ii) in the case of an offering that
is not an underwritten public offering, to the Holders.
(j) As soon as practicable after the effective date of
the registration statement, and in any event within sixteen (16) months
thereafter, have "made generally available to its security holders" (within the
meaning of Rule 158 under the Securities Act) an earnings statement (which need
not be audited) covering a period of at least twelve (12) months beginning after
the effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
(k) List, if the Company meets the applicable listing
requirements, the Registrable Securities subject to Section 2 on the National
Market System of the Nasdaq Stock Market, and on each national securities
exchange or automated quotation system upon which the shares to be registered
are traded.
5. AMENDMENTS, SUPPLEMENTS TO PROSPECTUS. Immediately upon
receipt of a notice referred to in Section 4(f) hereof, each Holder agrees to
(i) cease making sales of securities pursuant to any then effective registration
statement or any prospectus contained therein until it has received from the
Company an amendment or supplement to the registration statement or prospectus
and (ii) promptly deliver to the Company any copies of the registration
statement or such prospectus then in its possession.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be reasonably required to effect the registration of such Holder's
Registrable Securities.
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7. EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including (without limitation) all
registration, filing and qualification fees, printers' fees, fees and expenses
of counsel and accountants for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders, shall be borne by the
Company, even if such registrations, filings, or qualifications do not become
effective, subject to Section 2(c).
8. UNDERWRITING REQUIREMENTS. In connection with any underwritten
offering initiated by the Company or any stockholder other than a Holder of
Registrable Securities, the Company shall not be required under Section 3 to
include any Holder's securities in such underwriting unless such Holder accepts
the terms of the underwriting as agreed upon between the Company or such
stockholder and the underwriters selected by the Company or such stockholder,
and then only in such quantity as will not, in the reasonable opinion of the
underwriters, have a materially adverse effect on such offering by the Company;
PROVIDED, HOWEVER, that no Holder participating in such underwriting shall be
required to make any representations, warranties or indemnities except as they
relate to such Holder's ownership of shares and authority to enter into the
underwriting agreement and to such Holder's intended method of distribution, and
the liability of such Holder (whether by indemnification, contribution or
otherwise) shall be limited to an amount equal to the net proceeds from the
offering received by such Holder. If a Holder complies with the requirements set
forth in this Section 8, then such Holder shall have the right to be included in
any underwritten offering by the Company, whether initiated by the Company or
any stockholder, subject to the terms and limitations of Sections 2 and 3.
9. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each
Holder, its heirs, personal representatives and assigns, each of such Holder's
officers, directors, partners, employees and affiliates, any underwriter (as
defined in the Securities Act) for such Holder and each Person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the Securities Act, the Exchange
Act or other federal or state securities law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon a Violation; and the Company will pay to each such indemnified party, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; PROVIDED, HOWEVER, that the indemnity agreement contained in this
Section 9(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case to a particular indemnified party
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such indemnified party.
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(b) Each selling Holder will, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each of its
officers, each Person, if any, who controls the Company within the meaning of
the Securities Act, any underwriter, any other Holder (and any affiliate
thereof) selling securities in such registration statement and any controlling
Person of any such underwriter or other Holder, against any losses, claims,
damages or liabilities (joint or several) to which any of the foregoing Persons
may become subject, under the Securities Act, the Exchange Act or other federal
or state securities law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any Person intended to be indemnified pursuant to this Section 9(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; PROVIDED, HOWEVER, that the indemnity agreement contained
in this Section 9(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
PROVIDED, FURTHER, that in no event shall the liability of any Holder under this
Section 9(b) or otherwise in connection with the offering exceed the net
proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED, HOWEVER, that an indemnified party shall
have the right to retain its own counsel (but no more than one separate counsel,
plus any required local counsel) with the fees and expenses to be paid by the
indemnifying party, if in the reasonable opinion of counsel to an indemnified
party, representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflicts
of interests between, or different defenses available to, such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 9 except if, and only
to the extent that, the indemnifying party is actually prejudiced thereby.
(d) The obligations of the Company and Holders under this
Section 9 shall survive the completion of any offering of Registrable Securities
in a registration statement under this Agreement.
(e) Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party.
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(f) If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, then, in lieu of
indemnifying such indemnified party, the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other but also the relative fault of
the indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. 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.
Notwithstanding anything to the contrary in this Section 9, no Holder shall be
required, pursuant to this Section 9 or otherwise in connection with the
offering, to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of Common Stock in the offering to which
the losses, claims, damages, liabilities or expenses of the indemnified party
relate.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Holders the benefits of Rule 144 under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration or pursuant to
a registration on Form S-3, the Company agrees to, following the initial Public
Offering following the date hereof:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;
(b) remain registered under the Exchange Act and file
with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 or that
it qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time it so qualifies), (ii) 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 (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
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11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned in whole or in part to any Person acquiring Registrable Securities from
a Holder in compliance with the applicable provisions of any relevant agreement
between such Holder and the Company, provided that such transferee or assignee
delivers to the Company a written instrument by which such transferee or
assignee agrees to be bound by the obligations imposed on Holders under this
Agreement to the same extent as if such transferee or assignee was a party
hereto.
12. AMENDMENT; WAIVER. Any provision of this Agreement may be
amended only with the written consent of the Company and each of the Holders.
The observance of any provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of the party to be charged. Any amendment or
waiver effected in accordance with this Section 12 shall be binding upon each
Holder of Registrable Securities at the time outstanding, each future Holder of
all such securities, and the Company.
13. CHANGES IN REGISTRABLE SECURITIES. If, and as often as, there
are any changes in the Registrable Securities by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
14. NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company that have not been
terminated. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or grant any additional registration rights to any Person or with
respect to any securities which are not Registrable Securities which are prior
in right to, equal in right to or inconsistent with the rights granted in this
Agreement, and any such attempted agreements or grants shall be null and void
and of no effect.
15. ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements
constitute the full and entire understanding and agreement among the parties
with regard to the subject matter hereof and thereof. Nothing in this Agreement,
express or implied, is intended to confer upon any Person, other than the
parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided herein and therein. Each of the parties hereby
terminates all registration rights previously agreed to among each other and all
agreements granting such rights including the Registration Rights Agreement,
dated July 20, 2000, by and among the Company, Blue Truck and CFE, and the
Amended and Restated Registration Rights Agreement, dated April 14, 2000, by and
between the Company and Charter.
11
16. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of New York as such laws are applied to
agreements between New York residents entered into and to be performed entirely
within New York.
17. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to
the benefit of, and be binding upon, the successors, permitted assigns (as
provided in Section 11), heirs, executors and administrators of the parties
hereto.
18. NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given for all purposes (and shall constitute valid legal service)
upon receipt by the party to be notified (including by telecopier, receipt
confirmed) or three (3) days after deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party to
be notified (a) if to a party other than the Company, at such party's address
set forth at the end of this Agreement or at such other address as such party
shall have furnished to the Company in writing, or (b) if to the Company, at its
address set forth at the end of this Agreement, or at such other address as the
Company shall have furnished to the parties in writing.
19. EFFECTIVENESS. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement shall not become effective, and the
Investors shall have no rights hereunder, until the consummation of the Exchange
Agreements; provided that Xxxxxxx shall have no rights hereunder until he first
exercises his Option.
20. SEVERABILITY. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part hereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
21. TITLES AND SUB-TITLES. The titles and sub-titles of the
Sections of this Agreement are for convenience of reference only and are not to
be considered in construing this Agreement.
22. DELAYS OR OMISSIONS; REMEDIES CUMULATIVE. Except as otherwise
set forth in Sections 2 or 3 of this Agreement, it is agreed that no delay or
omission to exercise any right, power or remedy accruing to the parties, upon
any breach or default of another party under this Agreement, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach or default, or any acquiescence therein, or of any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. It is further agreed that, except as otherwise set forth
in Sections 2 or 3 of this Agreement, any waiver, permit, consent or approval of
any kind or character by a party of any breach or default under this Agreement,
or any waiver by a party of any provisions or conditions of this Agreement must
be in writing and shall be effective only to the extent specifically set forth
in writing and that all remedies, either under this Agreement, or by law or
otherwise afforded to a party, shall be cumulative and not alternative.
12
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
[Signature Page Follows]
13
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
UNITED ROAD SERVICES, INC.
By /s/
---------------------------------------
Name:
Title:
ADDRESS:
--------
United Road Services, Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
With copies to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
BLUE TRUCK ACQUISITION, LLC
By /s/
---------------------------------------
Name:
Title:
ADDRESS:
--------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
GE CAPITAL CFE, INC. (formerly, CFE, Inc.)
By /s/
---------------------------------------
Name:
Title:
ADDRESS:
--------
General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
CHARTER URS LLC
By /s/
---------------------------------------
Name:
Title:
ADDRESS:
--------
c/o Charterhouse Group International, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
With copies to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
/s/
---------------------------------------
Xxxxxxx X. Xxxxxxx
