REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, effective as of the
___________ day of _____________, 1997, by and between AXIOM INC., a Delaware
corporation (the "Company"), and SECURICOR COMMUNICATIONS LIMITED, a company
organized under the laws of England and Wales ("Securicor").
RECITALS
WHEREAS, prior to the effective date of this Agreement, the Company
was a wholly-owned subsidiary of Securicor; and
WHEREAS, concurrently with the effective date of this Agreement, the
Company has proposed to complete an initial public offering (the "Offering") of
its common stock, par value $0.01 per share (the "Common Stock"); and
WHEREAS, upon the completion of the Offering, Securicor will own
_______ shares of the Common Stock (the "Shares"), representing approximately
[60%] of the shares of Common Stock issued and outstanding; and
WHEREAS, the Company and Securicor desire that this Agreement govern
the rights of Securicor to cause the Company to register the Shares and certain
other matters as set forth herein.
1. Definitions. Unless the context otherwise requires, the following
terms shall have the respective meanings indicated:
(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Holder" means Securicor and any assignee of the
registration rights set forth in this Agreement in accordance with Section 10 of
this Agreement.
(c) The term "1934 Act" means the Securities Exchange Act of
1934, as amended.
(d) The term "register", "registered," and "registration"
refer to a registration effected by preparing and filing a registration
statement in compliance with the Act, and the declaration or ordering by the SEC
of the effectiveness of such registration statement.
(e) The term "Registration Stock" means (i) the Shares and
(ii) any Common Stock of the Company issued 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 replacement of the Shares, excluding in all cases,
however, any Registration Stock sold by a person in a transaction in which such
person's rights under this Agreement are not assigned.
(f) The term "SEC" means the United States Securities and
Exchange Commission.
2. Piggyback Registration.
If the Company shall seek to register under the Act any Common
Stock (except shares of Common Stock issued in connection with any stock option
plan, stock purchase plan, savings, dividend reinvestment or similar plan or an
acquisition, merger or exchange of stock) and if the form of registration
statement proposed to be used may be used for the registration of the
Registration Stock, then, on each such occasion, the Company shall furnish
Holder with at least twenty (20) days prior written notice thereof. At the
written request of Holder, given within twenty (20) days after the receipt of
such notice, the Company will use its best efforts to cause all of the
Registration Stock for which registration shall have been requested by Holder to
be included in such registration statement. In the event that the proposed
registration by the Company is, in whole or in part, an underwritten public
offering of the Common Stock of the Company, and the managing underwriter
determines and advises in writing that the inclusion of all Registration Stock
proposed to be included in the underwritten public offering and other issued and
outstanding shares of Common Stock proposed to be included therein by persons
other than holders of Registration Stock who have the contractual right to have
such shares included in such registration statement (the "Other Shares") would
interfere with the successful marketing (including pricing) of the securities,
then the number of shares of Registration Stock and Other Shares to be included
in such underwritten public offering shall be reduced first pro rata (based on
the total number of shares held by Holder and any holders of Other Shares) among
the holders of the Registration Stock and the Other Shares and, secondly, if
necessary, among the Company's shares requested by the Company to be registered.
3. Demand Registration.
(a) If the Company shall be requested in writing by Holder to
effect the registration under the Securities Act of any of the Registration
Stock, the Company, subject to the limitations set forth in subsection 3(b),
shall effect as soon as practicable after the receipt of such request, the
registration under the Act of all Registration Stock which Holder so requests to
be registered.
(i) If Holder intends to distribute the Registration
Stock covered by its request by means of an underwriting, it shall so advise the
Company as a part of its request made pursuant to this subsection 3(a). The
managing underwriter will be selected by Holder and shall be reasonably
acceptable to the Company. In such event, Holder shall (together with
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the Company as provided in subsection 4(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting.
(ii) Notwithstanding the foregoing, the Company may
include in a registration requested under this subsection 3(a) any additional
authorized shares of the Common Stock, whether or not issued, for sale by the
Company or for sale by others; provided, however, that such shares shall not be
included to the extent that the managing underwriter chosen in accordance with
subsection (i) above concludes in good faith that the inclusion of such shares
will interfere with the successful marketing of the shares of Registration Stock
to be included therein.
(iii) Notwithstanding the foregoing, if the Company
shall furnish to Holder a certificate signed by the Chief Executive Officer or
the Chief Financial Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be detrimental for
such registration statement to be filed or would require the Company to make
public disclosure of information the premature disclosure of which would have an
adverse effect on the Company, and it is therefore beneficial to the Company to
defer the filing of such registration statement (or the intended sale of
Registration Stock pursuant to a then effective registration statement), the
Company shall have the right to defer taking action with respect to such filing,
or require Holder to refrain from selling Registration Stock, as the case may
be, for a period of not more than one hundred twenty (120) days.
(b) The Company shall not be obligated to effect, or to take
any action to effect, any registration pursuant to this Section 3:
(i) After the Company has effected one registration
pursuant to this Section 3 in the previous twelve (12) months and such
registration has been declared or ordered effective; or
(ii) During the period beginning on a date thirty (30)
days prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date of, a
registration of Common Stock or other securities of the Company under the Act in
connection with a public offering of such securities (other than a registration
relating solely to the sale of securities to participants in a stock option or
other employee benefits plan of the Company); provided that the Company is
actively employing in good faith reasonable efforts to cause such registration
statement to become effective.
4. Obligations of the Company. Whenever required under Section 3 of
this Agreement to effect the registration of any Registration Stock, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registration Stock and use its best efforts to cause such
registration statement to become effective, and, upon the request of Holder,
keep such registration statement effective for a period
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of up to ninety (90) days or until the distribution contemplated in the
registration statement is completed, whichever occurs first; provided, however,
that such 90-day period shall be extended for a period of time equal to the
period Holder refrains from selling Registration Stock included in such
registration at the request of an underwriter of Common Stock (or other
securities) of the Company.
(b) Consistent with the subsection (a) above, 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 Act with respect to the
disposition of all securities covered by such registration statement. Holder
shall delay any sale to the extent the Company informs Holder that an amendment
or supplement is required. Company shall promptly prepare and file such
amendment or supplement and, if applicable, use reasonable efforts to cause it
to become effective.
(c) Furnish to Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as Holder may reasonably request in order to
facilitate the disposition of Registration Stock owned by it.
(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 jurisdictions as shall be reasonably requested by Holder;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(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. Holder shall
also enter into and perform its obligations under such an agreement.
(f) Cause all such Registration Stock registered pursuant
hereto to be listed on each securities exchange or trading market on which
similar securities issued by the Company are then listed.
(g) Provide a transfer agent and registrar for all
Registration Stock registered pursuant hereunder and a CUSIP number for all such
Registration Stock, in each case not later than the effective date of such
registration.
5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 4 of this
Agreement with respect to the Registration Stock that Holder shall furnish to
the Company such information regarding Holder, the Registration Stock held, and
the intended method of disposition of such securities as shall be required to
effect the registration of Holder's Registration Stock.
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6. Expenses of Registration. Holder shall bear all expenses incurred
directly in connection with the registration, filing or qualification of the
Registration Stock requested under Section 3, including all registration, filing
and qualification fees, printers' and accounting fees and fees and disbursements
of counsel for the Company. All expenses related to the disposition of
Registration Stock, whether pursuant to a request under Section 2 or Section 3
of this Agreement, including all underwriting discounts, brokerage commissions
and transfer taxes also shall be borne by Holder.
7. Delay of Registration. Holder shall not have any right to obtain
or seek an injunction restraining or otherwise delaying any registration
pursuant to this Agreement as the result of any controversy that might arise
with respect to the interpretation or implementation of this Agreement.
8. Indemnification. In the event any Registration Stock is included
in a registration statement under the provisions of this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless Holder, any underwriter (as defined in the Act) for
Holder and each person, if any, who controls Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary to make the
statements therein not misleading (a "Violation"); and the Company shall pay to
Holder or any such underwriter or controlling person 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 subsection 8(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
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 Holder or any such underwriter or controlling person.
(b) To the extent permitted by law, Holder shall indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the Act, any underwriter, any other person selling
securities in such registration statement and any controlling person of any such
underwriter or other person, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or
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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 Holder expressly for use in connection with
such registration; and Holder shall pay any legal or other expenses reasonably
incurred by any person intended to be indemnified pursuant to this subsection
8(b), in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 8(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 Holder, which consent shall not be unreasonably
withheld; provided further, that, in no event shall any indemnity under this
subsection 8(b) exceed the gross proceeds from the offering received by
Holder.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 8, 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
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel
reasonably acceptable to the indemnifying party, with the fees and expenses to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between 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, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 8.
(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations; provided, however, that in no event shall Holder's liability to
contribute under this subsection 8(b) exceed the gross proceeds from the
offering received by Holder. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying
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party or by the indemnified party and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(f) The obligations of the Company and Holder under this
Section 8 shall survive the completion of any offering of Registration Stock
pursuant to a registration statement under this Agreement, and otherwise.
9. Assignment of Registration Rights. The right to cause the Company
to register Registration Stock pursuant to this Agreement may be assigned (but
only with all related obligations) by Holder to a single transferee of such
securities, provided that:
(a) Holder transfers a majority of the Registration Stock and
related registration rights to such transferee;
(b) the Company is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee; and
(c) such transferee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement, including without
limitation the provisions of Sections 8 and 10 of this Agreement, whereupon such
transferee, consistent with the provisions of Section 11 of this Agreement,
shall have the exclusive power to exercise all rights of Holder under the terms
of this Agreement.
10. "Market Stand-Off" Agreement. Holder hereby agrees that, during
the period of duration (not to exceed 180 days) specified by the Company and an
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the Act,
Holder shall not, to the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by Holder at any time during such period except
Common Stock included in such registration. In order to enforce the foregoing
covenant, the Company may impose stop-transfer instructions with respect to the
Registration Stock of Holder (and the shares or securities of every other person
subject to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 11 shall not apply to a registration relating solely to an employee
benefit plan of the Company on Form S-8 or a similar form which may be
promulgated in the future, or a registration relating solely to an SEC Rule 145
transaction.
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11. Termination of Registration Rights.
This Agreement shall terminate at such time that Holder no
longer holds at least 10% of the Shares owned by Securicor at the effective date
of this Agreement.
12. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of either party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
(b) Controlling Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of New Jersey,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or when deposited with a national postal service, registered or
certified mail, postage prepaid, return receipt requested, addressed as set
forth below:
(i) If to the Company:
Axiom Inc.
000 Xxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, President
with a copy, given in the manner prescribed above,
to:
Xxxxx X. Xxxxxxx, Esquire
Wolf, Block, Xxxxxx & Xxxxx-Xxxxx
Twelfth Floor Packard Building
X.X. Xxxxxx 00xx & Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
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(ii) If to Holder:
Securicor Communications Limited
Xxxxxx Xxxx Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
Attention: Xxxxx Xxxxxxx
In addition, notice by mail shall be by air mail if
posted outside of the continental United States.
Any party may alter the address to which communications
or copies are to be sent by giving notice of such change of address in
conformity with the provisions of this paragraph for the giving of notice.
(c) Binding Nature of Agreement; No Assignment. Except as
otherwise provided herein, the terms and conditions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns (including a transferee
of the Registration Stock). Nothing in this Agreement, express or implied, is
intended to confer upon any other party other than the parties hereto or their
respective successors and permitted assigns, any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
(d) Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(e) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(f) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
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(g) Paragraph Headings. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(f) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(g) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
AXIOM INC.
By:_________________________________________
Xxxxxx X. Xxxxxxx, President
SECURICOR COMMUNICATIONS LIMITED
By:_________________________________________
Name:_________________________________
Title:________________________________
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