Exhibit 2
REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of the 4th day
of August 2003, by and among ViryaNet Ltd., a company organized under the laws
of the State of Israel (the "COMPANY"), and Telvent GIT, S.A., a company
organized under the laws of the kingdom of Spain (the "SHAREHOLDER")
W I T N E S S E T H:
WHEREAS, the Company and the Shareholder have entered into a Share
Purchase Agreement (the "AGREEMENT"), pursuant to which the Shareholder became a
holder of 539,258 Ordinary Shares par value NIS 1.0 of the Company; and
WHEREAS, a condition to the closing of the Agreement (the "CLOSING") is
that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
1. Definitions
Terms used in this Agreement and not otherwise defined herein shall
have the meanings ascribed to them in the Agreement. As used in this
Agreement, the following terms have the following meanings:
1.1. The term "COMPANIES LAW" shall mean the Israeli Companies Law
1999, as amended.
1.2. The term "EXCHANGE ACT" shall mean the United States
Securities Exchange Act of 1934, as amended.
1.3. The term "FORM F-3" shall mean such form under the Securities
Act, as in effect on the date hereof or any registration form
under the Securities Act 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.
1.4. The term "HOLDER" shall mean the Shareholder. For the purpose
of Sections 2.5 and 4.3 the Holder shall include in addition,
other holders of registration rights under that certain
registration rights agreement dated February 25, 2002,
attached hereto as EXHIBIT 1.4.
1.5. The term "ISRAELI SECURITIES LAW" shall mean the Israeli
Securities Law - 1968, as amended.
1.6. The terms "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 or
the equivalent actions under the laws of another jurisdiction.
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1.7. The term "REGISTRABLE SECURITIES" shall mean Ordinary Shares
issued to the Shareholder under the Agreement. For the purpose
of Sections 2.5 and 4.3 the Registrable Securities shall
include in addition, securities granted to other holders of
registration rights under other agreement with the Company.
1.8. The term "SEC" shall mean the U.S. Securities and Exchange
Commission.
1.9. The term "SECURITIES ACT" shall mean the United States
Securities Act of 1933, as amended.
2. Demand Registration
2.1. Subject to the provisions of that certain Lock-Up Agreement
attached to the Agreement, the Company shall receive, at any
time starting six (6) months after the Closing, a written
request from the Holder to file a registration statement under
the Securities Act covering the registration of all or part of
the Registrable Securities, then the Company shall:
2.1.1. within twenty (20) days of the receipt thereof, give
written notice of such request to all other holders
of registration rights under other agreements of the
Company; and
2.1.2. use its best efforts to effect as soon as
practicable, register under the Securities Act all
Registrable Securities which are specified in such
written request together with the registrable
securities of other parties joining in such request
pursuant to written requests received by the Company
from such parties within 20 days after the receipt of
the Company's written notice.
2.2. If the Company shall furnish to the holder requesting
registration pursuant to this Section 2 a certificate signed
by the Chief Executive Officer of the Company or the Chairman
of the Company's Board of Directors stating that in the good
faith judgment of the Board of Directors of the Company it
would be seriously detrimental to the Company and its
shareholders for such registration to be effected at such
time, the Company shall have the right to defer such filing
for a period of not more than one hundred and twenty (120)
days after receipt of the request of the Holder, provided that
such right to delay a request shall be exercised by the
Company not more than once in any 12 month period.
2.3. In the case of any registration effected pursuant to this
Section 2 the Company shall have the right to designate the
managing underwriter(s) in any underwritten offering, subject
to the reasonable prior approval of the Holder.
2.4. The Company and all holders participating in such underwritten
registration shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected
for such underwriting.
2.5. Notwithstanding any other provision of this Section 2 (except
for Section 2.2), if the underwriter of a registration being
made pursuant to Section 2 advises the Holder in writing that
marketing factors require a limitation of the number of
Registrable Securities to be included in such underwritten
registration, then the Shareholder shall have the first
priority, before any other Holder of the
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Company, to include its Registrable Shares in any registration
initiative by Shareholder.
2.6. The Company shall not be required to effect more than one (1)
demand registration pursuant to Section 2. If the Company
shall be eligible to use a registration statement on Form F-3
in connection with the demand registration under this Section
2, such registration may be effected by the Company on Form
F-3.
2.7. The Company may not cause any other registration of securities
for sale for its own account (other than a registration
effected solely to implement an employee benefit plan) to be
initiated after delivery of a demand for a registration
requested pursuant to this Section 2 and to become effective
less than one hundred and twenty (120) days after the
effective date of a registration made pursuant to such demand
under this Section 2.
2.8. The Holder may withdraw its request for such demand
registration at any time and it shall not be deemed to have
exhausted any rights to make a demand registration in the
future, provided that it reimburses the Company for all of its
costs and expenses incurred in connection with such withdrawn
demand registration (collectively, "Company Expenses"), if
such registration has in fact been cancelled. Notwithstanding
the above, if the Holder withdraws its request based upon
material adverse information relating to the Company or its
condition, business, prospects or general securities market
conditions which is different from that generally known to the
Company's shareholders at the time of the Holder's request,
the Holder shall not have to reimburse the Company for the
Company Expenses.
3. Shelf Registration
3.1. From such time as the Company becomes eligible to file
registration statements on Form F-3, at the request of the
holders to file a shelf registration statement pursuant to
Rule 415 under the Securities Act with the SEC, the Company
shall:
3.1.1. within twenty (20) days after receipt of any such
request, give written notice of the proposed
registration to all other holders; and
3.1.2. use its best efforts to effect as soon as practicable
the registration under the Securities Act of all
Registrable Securities which are specified in such
written request together with the registrable
securities of other holders joining in such request
pursuant to written requests received by the Company.
3.2. The Company undertakes that it will, once having qualified for
registration on Form F-3, use its best efforts to comply with
all necessary filings and other requirements so as to maintain
such qualification.
3.3. After a registration requested pursuant to Section 3, the
Company may not cause any other registration of securities for
sale for its own account (other than a registration effected
solely to implement an employee benefit plan) to be initiated
and to become effective less than one hundred and twenty (120)
days after the effective date of any registration requested
pursuant to Section 3.1.
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3.4. Notwithstanding the above, the Company shall not be required
to effect a registration pursuant to Section 3 if:
3.4.1. the reasonably-anticipated aggregate market price of
the Registrable Securities to be registered
thereunder is less than $750,000;
3.4.2. if the Company has, within the six (6) month period
preceding the date of such request, already effected
one registration under Section 3, or two
registrations under Section 3 in the previous
twelve-month period; or
3.4.3. if Form F-3 is not available for such offering by the
Holder;
3.4.4. if the Company shall furnish to the Holder a
certificate signed by the Chief Executive Officer or
Chairman of the Board of the Company stating that in
the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the
Company and its shareholders for such Form F-3
registration to be effected at such time, in which
event the Company shall have the right to defer the
filing of the Form F-3 registration statement for a
period of not more than ninety (90) days after
receipt of the request of the Holder under this
Section 3; provided, however, that the Company shall
not utilize this right more than once in any twelve
(12) month period.
4. Piggyback Registrations
4.1. Whenever the Company proposes to register for its own account
or for any other person other than in a registration pursuant
to Section 2 or 3 any of its securities under either the
Securities Act (other than a registration in connection with a
merger or acquisition on Form F-4 or S-4 or one relating
solely to employee benefit plans under Form S-8 or any similar
form) or the Israeli Securities Laws, it will promptly, and at
least thirty (30) days prior to the initial filing of a
registration statement with the SEC or Israeli equivalent,
give written notice to the Holder of its intention to effect
such a registration and will include in such registration all
the securities held by the Holder (subject to the provisions
of Section 4.3 hereto) with respect to which the Company
receives written requests for inclusion therein within twenty
(20) days after receipt of such notice by the Holder (a
"PIGGYBACK REGISTRATION").
4.2. In the case of any registration initiated by the Company, the
Company shall have the right to designate the managing
underwriter in any underwritten offering and any Holder
participating in such underwritten registration shall enter
into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting.
4.3. If a Piggyback Registration is an underwritten offering of the
Company's securities and the underwriter advises the Company
in writing that marketing factors require a limitation of the
number of Registrable Securities to be underwritten, the
Company will include its securities in such registration in
the following order:
(a) if the Piggyback Registration is initiated by the
Company:
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(i) first, all Registrable Securities proposed
to be included by the Company.
(ii) second, all other Registrable Securities on
a pro rata basis.
(b) if the Piggyback Registration is not initiated by the
Company:
(i) first, all Registrable Securities proposed to be
included by Holders; provided, that if all such securities
cannot be included, the Company shall include Registrable
Securities pro rata.
(ii) second, all other securities of the Company or
any other shareholders proposed to be included in such
offering.
5. Obligations of the Company. Whenever required hereunder to effect the
registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
5.1. 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 in accordance with the time periods indicated above,
and, upon the request of the Holder, registered thereunder,
keep such registration statement effective for a period of up
to nine months or until the distribution contemplated in the
Registration Statement has been completed;
5.2. 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;
5.3. Furnish to the Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents
as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
5.4. Register and qualify the securities covered by such
registration statement under such other securities laws of
such jurisdictions as shall be reasonably requested by the
Holder, as the case may be; provided, that in no event shall
the Company be required to qualify to do business in any state
or other jurisdiction or to take any action which would
subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject;
5.5. In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement,
in usual and customary form, with terms generally satisfactory
to the managing underwriter of such offering. Each Holder or
other shareholders participating in such underwriting shall
also enter into and perform its obligations under such an
agreement;
5.6. Notify the Holder 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
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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 not
misleading in the light of the circumstances then existing;
5.7. Cause all Registrable Securities registered pursuant hereto to
be listed on each securities exchange on which similar
securities issued by the Company are then listed;
5.8. Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto and a CUSIP number for
all such Registrable Securities not later than the effective
date of such registration; and
5.9. Furnish, at the request of Holder requesting registration of
Registrable Securities pursuant to Section 2 hereof, on the
date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold
through underwriters, or, if such securities are not being
sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective,
(i) an opinion, dated such date, 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 underwriters,
if any, and to the Holder requesting registration of
Registrable Securities and (ii) a 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 underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to the Holder requesting registration of
Registrable Securities.
6. Expenses of Registration
6.1. The Company shall bear and pay the expenses incurred in
connection with any registration, filing or qualification of
Registrable Securities for the Holder, including (without
limitation) all registration, filing, and qualification fees,
printers and accounting fees and the reasonable fees and
disbursements of one counsel (plus local counsel, if
appropriate) for the Holder, excluding underwriting discounts
and commissions relating to the sale of Registrable
Securities.
7. Furnishing of 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 securities of the Holder that the Holder
shall furnish to the Company such information as may be required to be
included in the registration statement under the Securities Act
regarding itself, the Registrable Securities held by it and the
intended method of disposition of such securities as shall be required
to effect the registration of such securities.
8. Indemnification and Contribution
8.1. The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, the Holder, any underwriter for the
Holder, each person, if any, who controls the Holder or such
underwriter, and each of the Holder's partners, shareholders,
officers, directors, employees, legal counsel and accountants,
from
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and against any and all losses, claims, damages, liabilities,
and charges, joint or several ("CLAIMS"), to which any of them
may be subject under the Securities Act, the Exchange Act, the
Israeli Securities Law, the Companies Law, or any other
statute (whether U.S. or Israeli) or at common law, insofar as
such Claims arise out of, are based upon, or are in connection
with (i) any untrue statement of any material fact contained
in any registration statement or prospectus, in each case, as
amended or supplemented, under which such securities were
sold, or (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
(iii) any other violation by the Company of the Securities
Act, the Exchange Act, the Israeli Securities Law, the
Companies Law or any state or foreign jurisdiction securities
laws in connection with each such registration, and shall
reimburse each such person entitled to indemnification for any
legal or other expenses reasonably incurred by such person in
connection with investigating or defending any such Claim, as
and when such expenses are incurred; provided, however, that
the Company shall not be liable to any such person in any such
case to the extent that any such claim arises out of or is
based upon any untrue statement or omission made in such
registration statement or prospectus in reliance upon and in
conformity with written information furnished to the Company
by such person and/or any person acting on its behalf
specifically for use in such registration statement or
prospectus and provided further, that this indemnity shall not
apply to amounts paid pursuant to any settlement effected
without the consent of the party entitled to indemnification
hereunder, which consent shall not be unreasonably withheld.
8.2. The Holder shall indemnify and hold harmless, to the fullest
extent permitted by law the Company, any underwriter for the
Company, and each person, if any, who controls the Company or
such underwriter and each of the Company's or underwriter's
officers, directors, employees, legal counsel and accountants,
from and against any and all Claims to which any of them may
be subject under the Securities Act, the Exchange Act, the
Israeli Securities Law, the Companies Law, or any other
statute (whether U.S. or Israeli) or at common law, insofar as
such Claims arise out of, are based upon, or are in connection
with (i) any untrue statement made by the Holder of any
material fact contained in any registration statement or
prospectus, in each case, as amended or supplemented, under
which such securities were sold, or (ii) any omission or
alleged omission made by the Holder to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall
reimburse the Company or each such person entitled to
indemnification for any legal or other expenses reasonably
incurred by the Company or such person in connection with
investigating or defending any such Claim, as and when such
expenses are incurred; provided, however, that the Holder
shall be liable to the Company or any such person in any such
case only to the extent that any such claim arises out of or
is based upon any untrue statement or omission made in such
registration statement or
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prospectus in reliance upon and in conformity with written
information furnished to the Company by the Holder and/or any
person acting on the Holder's behalf specifically for use in
such registration statement or prospectus and provided
further, that this indemnity shall not apply to amounts paid
pursuant to any settlement effected without the consent of the
party entitled to indemnification hereunder, which consent
shall not be unreasonably withheld. The indemnification
provided by the Holder shall be limited to the amount of the
net proceeds received by the Holder from the sale of the
securities registered in such registration.
8.3. Promptly after receipt by any person entitled to
indemnification under Section 8.1 or Section 8.2, as the case
may be, of notice of the commencement of any action,
proceeding, or investigation in respect of which indemnity may
be sought as provided above, such party (the "INDEMNITEE")
shall notify the party from whom indemnification is claimed
(the "INDEMNITOR"). The Indemnitor shall promptly assume the
defense of the Indemnitee with counsel reasonably satisfactory
to such Indemnitee, and the fees and expenses of such counsel
shall be at the sole cost and expense of the Indemnitor. The
Indemnitee will cooperate with the Indemnitor in the defense
of any action, proceeding, or investigation for which the
Indemnitor assumes the defense, provided, however, that if the
defendants in any action include both the Indemnitee and the
Indemnitor and there is a conflict of interests which would
prevent counsel for the Indemnitor from also representing the
Indemnitee, the Indemnitee shall have the right to select one
separate counsel to participate in the defense of such action
on behalf of such indemnified party or parties. The Indemnitor
shall not be liable for the settlement by the Indemnitee of
any action, proceeding, or investigation effected without its
consent, which consent shall not be unreasonably withheld. The
Indemnitor shall not enter into any settlement in any action,
suit, or proceeding to which the Indemnitee is a party, unless
such settlement includes a general release of the Indemnitee
with no payment by the Indemnitee of consideration and without
an admission of liability.
8.4. The parties agree to notify promptly each other of the
commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with
the sale of any Registrable Securities held by the Holder, or
any preliminary prospectus or registration statement relating
to any sale of any Registrable Securities, or of any other
litigation or proceedings to which this Section 8 is
applicable of which they became aware.
8.5. 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 prevail.
8.6. The obligations of the Company and the Holder under this
Section 8 shall survive the completion of any offering of
Registrable Securities in a registration statement under this
Agreement.
8.7. If for any reason the foregoing indemnity is unavailable, or
is insufficient to hold harmless an Indemnitee (except as
specifically provided therein), then the Indemnitor shall
contribute to the amount paid or payable by the Indemnitee as
a
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result of such losses, claims, damages, liabilities or
expenses (a) in such proportion as is appropriate to reflect
the relative benefits received by the Indemnitor on the one
hand and the Indemnitee on the other from the registration or
(b) if the allocation provided by clause (a) above is not
permitted by applicable law, or provides a lesser sum to the
Indemnitee than the amount hereinafter calculated, in such
proportion as is appropriate to reflect the relative fault of
the Indemnitor and the Indemnitee as well as any other
relevant equitable considerations; provided that in no event
shall any contribution by the Holder hereunder exceed the net
proceeds from the offering received from the Holder. 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.
9. Reports Under the Exchange Act
With a view to making available to the Holder the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation
of the SEC that may at any time permit the Holder to sell securities of
the Company to the public without registration or pursuant to a
registration on Form F-3, the Company agrees to:
9.1. make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
9.2. take such action as is necessary to enable the Holder to
utilize Form F-3 for the sale of their Registrable Securities;
9.3. 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;
9.4. furnish to the Holder, so long as the Holder owns any
Registrable Securities, forthwith upon being so requested (i)
a written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act and
the Exchange Act, or that it qualifies as a registrant whose
securities may be resold pursuant to Form F-3 (at any time
after it so qualifies), (ii) a copy of the most recent annual
or, to the extent applicable, 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 the Holder of any rule or regulation of
the SEC which permits the selling of any Registrable
Securities without registration or pursuant to such form; and
9.5. comply with all other necessary filings and other requirements
so as to enable the Holder and any transferee thereof to sell
Registrable Securities under Rule 144 under the Securities Act
(or any similar rule then in effect).
9.6. use its best efforts to maintain the listing of its Ordinary
Shares on the Nasdaq National Market ("Nasdaq"), and should
its Ordinary Shares be delisted from Nasdaq, to cause the
reinstatement of the Ordinary Shares to listing on Nasdaq,
including through the pursuit of the formal appeal process
established by Nasdaq.
10. Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be
assigned (but only with all
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related obligations) by the Holder to a transferee or assignee of such
securities, provided: (a) 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 the securities with respect
to which such registration rights are being assigned; and (b) such
transferee or assignee agrees in writing to be bound by and subject to
all the terms and conditions of this Agreement.
11. Additional Registration Rights. Following the first anniversary of the
Closing Date, the Company shall use reasonable efforts to negotiate
additional registration rights for the Holder if it is not then
entitled to sell its shares under Rule 144.
12. Expiration of Registration Rights. The registration rights contained
herein shall expire five (5) years after the Closing Date.
13. Miscellaneous.
13.1. Each of the parties hereto shall perform such further acts
and execute such further documents as may reasonably be
necessary to carry out and give full effect to the
provisions of this Agreement and the intentions of the
parties as reflected thereby.
13.2. This Agreement shall be construed in accordance with, and
governed in all respects by, the internal laws of the State
of New York (without giving effect to principles of
conflicts of laws). Each party to this Agreement consents to
the exclusive jurisdiction and venue of the courts of the
State of New York.
13.3. Except as otherwise expressly limited herein and subject to
the provisions of Section 10 above, the provisions hereof
shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of
the parties hereto.
13.4. This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subject
matters hereof and thereof. Any term of this Agreement may be
amended and the observance of any term hereof may be waived
(either prospectively or retroactively and either generally or
in a particular instance) only with the written consent of the
holders of the majority of the Registrable Shares and of the
Company, provided, that any amendment or waiver that affects
the Holder differently or adversely shall require the Holder's
written consent. For the avoidance of doubt, the Company may
execute any other registration rights agreement and such
agreement, if and when executed, shall not be deemed to be an
amendment of this Agreement or require the consent of the
Holder.
13.5. All article and section headings are inserted for convenience
only and shall not modify or affect the construction or
interpretation of any provision of this Agreement.
13.6. All notices and other communications required or permitted
hereunder are to be given pursuant to the provisions of the
Agreement.
13.7. If any provision of this Agreement is held by a court of
competent jurisdiction to be unenforceable under applicable
law, then such provision shall be excluded
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from this Agreement and the remainder of this Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms; provided, however, that in
such event this Agreement shall be interpreted so as to give effect, to
the greatest extent consistent with and permitted by applicable law, to
the meaning and intention of the excluded provision as determined by
such court of competent jurisdiction.
13.8. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and
enforceable against the parties actually executing such
counterpart, and all of which together shall constitute one
and the same instrument.
13.9. In no event shall either the Company or the Shareholder be
liable to the other party for any consequential, indirect,
special or incidental costs, damages or loss (including,
without limitation, lost profits, loss of business),
regardless of the nature, arising out of or relating in any
way to this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
VIRYANET LTD.
BY: /s/ Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
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Title: Chairman
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TELVENT GIT, S.A.
BY: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
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Title: C.E.O
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
