Exhibit 4.12
WARRANT REGISTRATION RIGHTS AGREEMENT
between
CELLNET DATA SYSTEMS, INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
Dated as of September 24, 1997
WARRANT REGISTRATION RIGHTS AGREEMENT
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of September 24,
1997 (this "AGREEMENT"), among CELLNET DATA SYSTEMS, INC., a Delaware
corporation (the "COMPANY"), and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
(collectively, the "Placement Agents").
Pursuant to the terms of a Placement Agreement dated September 24,
1997 (the "PLACEMENT AGREEMENT"), among the Company and Xxxxxx Xxxxxxx, as
manager (the "MANAGER"), for itself and the other Placement Agent, the
Company has agreed to issue and sell to the Placement Agents an aggregate of
197,500 warrants (each, a "WARRANT"), each Warrant initially entitling the
holder thereof to purchase 13.671 shares of Common Stock (as defined below)
of the Company at an exercise price of $14.30 per Common Share (as defined
below), as part of 197,500 units (each, a "UNIT") offered pursuant to the
Placement Agreement, each Unit consisting of one 14% Senior Discount Note due
2007 of the Company (each a "NOTE" and collectively, the "NOTES") to be
issued pursuant to the provisions of an Indenture dated as of June 15, 1995
(as supplemented from time to time, the "INDENTURE") between the Company, as
issuer, and The Bank of New York, as trustee, and one Warrant. In addition,
the Company has agreed to issue, concurrently with the Offering (as defined
below), (i) pursuant to a Consent Solicitation dated August 20, 1997, to
certain holders of the current Series B 13% Senior Discount Notes (the "1995
Notes"), 1795 additional Units and (ii) pursuant to an Exchange Offer
Memorandum dated September 3, 1997, to the holders of the 1995 Notes 454,838
additional Units. The Note and the Warrant included in each Unit will be
automatically separated at the close of business upon the earliest to occur
of (i) the date that is six months after the Closing Date (as defined below),
(ii) the commencement of an exchange offer with respect to the Notes
undertaken pursuant to the Registration Rights Agreement (as defined below),
(iii) the effectiveness of a shelf registration statement with respect to
resales of the Notes or (iv) the commencement of an offer to purchase the
Notes pursuant to the Indenture.
In consideration of the foregoing and of the mutual agreements
contained herein and in the Placement Agreement, the Company and the
Placement Agents hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Auditors" means, at any time, the independent auditors of the
Company at such time.
2
"Board" means the board of directors of the Company from time to
time.
"Closing Date" means September 29, 1997.
"Comfort Letter" has the meaning specified in Section 2 hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the common stock, par value $.001 per share,
of the Company.
"Company" means CellNet Data Systems, Inc., a Delaware corporation.
"Expiration Date" means October 1, 2007.
"Holders" means the record holders of the Warrants and the record
holders of Common Shares (or other securities) received upon exercise
thereof.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Manager" has the meaning specified in the recitals to this
Agreement.
"Xxxxxx Xxxxxxx" has the meaning specified in the recitals to this
Agreement.
"1995 Notes" has the meaning specified in the recitals to this
Agreement.
"Notes" has the meaning specified in the recitals to this Agreement.
"Offering" means the sale of the Units by the Company to the
Placement Agents pursuant to the Placement Agreement and the resale of
such Units by the Placement Agents.
"Opinion" has the meaning specified in Section 2 hereof.
"Placement Agents" has the meaning specified in the recitals to
this Agreement.
"Placement Agreement" has the meaning specified in the recitals to
this Agreement.
3
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Company and the Placement
Agents.
"Resale Shelf" has the meaning specified in Section 2 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrant" has the meaning specified in the recitals to this
Agreement.
"Warrant Agent" means The Bank of New York in its capacity as
warrant agent.
"Warrant Agreement" means the Warrant Agreement dated the Closing
Date between the Company and the Warrant Agent.
"Warrant Shares" means the Common Shares issuable upon exercise of
a Holder's Warrants or such other securities as shall be issuable upon
the exercise of the Warrants, pursuant to the Warrant Agreement.
"Warrant Registration Statement" has the meaning specified in
Section 2 hereof.
2. SHELF REGISTRATION.
(a) The Company shall use its best efforts to cause to be filed
pursuant to Rule 415 under the Securities Act a shelf registration statement
on the appropriate form (the "WARRANT REGISTRATION STATEMENT") covering the
issuance of the Warrant Shares upon exercise of the Warrants and shall use
its best efforts to cause the Warrant Registration Statement to become
effective under the Securities Act within one year after the Closing Date;
PROVIDED, HOWEVER, that if the Commission shall request that the Company
register the resale of the Warrant Shares instead of the issuance thereof,
the Warrant Registration Statement shall register such resale as opposed to
such issuance. The Company shall use reasonable efforts to keep the Warrant
Registration Statement continuously effective until such time as all Warrants
have been exercised or in the case of the proviso above, until such time as
all Warrant Shares have been resold. Prior to filing the Warrant
Registration Statement or any amendment thereto, the Company shall provide a
copy thereof to Xxxxxx Xxxxxxx and its counsel and afford them a reasonable
time to comment thereon.
4
(b) If the Warrant Registration Statement shall register the
resale of the Warrant Shares by Holders thereof (a "RESALE SHELF") as
provided in the proviso in Section 2(a) above, the Company agrees to:
(i) make available for inspection by a representative of the
Holders, any underwriter participating in any disposition pursuant to
such Resale Shelf and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, financial and
other records, documents and properties of the Company that are
pertinent to the conduct of due diligence customary for an underwritten
offering, and cause the officers, directors and employees of the Company
to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with a
Resale Shelf; PROVIDED, HOWEVER, that such persons shall first agree in
writing with the Company that any information that is reasonably and in
good faith designated by the Company in writing as confidential at the
time of delivery of such information shall be kept confidential by such
persons, unless and to the extent that disclosure of such information is
required by law or such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard
such information by such person;
(ii) use its best efforts to cause all Warrant Shares sold under a
Resale Shelf to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are
then listed if requested by the Holders of Warrant Shares representing a
majority of the Warrants originally issued, to the extent such Warrant
Shares satisfy applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus
included in such Resale Shelf to Holders that are selling Warrant Shares
pursuant to such Resale Shelf;
(iv) cause to be provided to the Warrant Agent, on behalf of the
Holders and beneficial owners of Warrant Shares, upon the effectiveness
of such Resale Shelf, a customary "10b-5" opinion of independent counsel
(an "OPINION") and a customary "cold comfort" letter of independent
auditors (a "COMFORT LETTER");
(v) cause to be provided to Holders and beneficial owners of
Warrant Shares an Opinion and Comfort Letter with respect to each Form
10-K and Form 10-Q, including any amendments thereto, that is
incorporated by reference in such Resale Shelf; and
(vi) deliver a written notice to the Warrant Agent, for
distribution to the Holders, (A) when the Resale Shelf has become
effective and when any post-effective amendment thereto has been filed
and becomes effective, (B) of any request by the
5
Commission or any state securities authority for amendments and
supplements to the Resale Shelf or of any material request by the
Commission or any state securities authority for additional information
after the Resale Shelf has become effective, (C) of the issuance by the
Commission or any state securities authority of any stop order
suspending the effectiveness of the Resale Shelf or the initiation of
any proceedings for that purpose, (D) if, between the effective date of
the Resale Shelf and the closing of any sale of Warrant Shares covered
thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, including this Agreement, relating to the Warrant Shares
cease to be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (E) of the happening of
any event during the period the Resale Shelf is effective such that such
Resale Shelf or the related prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make statements therein not misleading and (F)
of any determination by the Company that a post-effective amendment to a
registration statement would be appropriate. The Holders hereby agree
to suspend use of the prospectus contained in a Resale Shelf upon
receipt of such notice under clause (E) or (F) above until the Company
has amended or supplemented such prospectus to correct such misstatement
or omission.
3. SUSPENSION.
Notwithstanding the foregoing, during any consecutive 365-day
period, the Company shall have the privilege to suspend availability of the
Warrant Registration Statement and the related prospectus for up to two
30-consecutive-day periods, except for the 30 days immediately prior to the
Expiration Date, if the Board determines in good faith that there is a valid
purpose for such suspension and provides notice of such determination to the
Holders at their addresses appearing in the register of Warrants maintained
by the Warrant Agent. Notice of such suspension shall be given promptly to
the Warrant Agent.
4. BLUE SKY.
The Company shall use its reasonable best efforts to register or
qualify the Underlying Securities proposed to be sold or issued pursuant to
the Warrant Registration Statement under all applicable securities or "blue
sky" laws of all jurisdictions in the United States in which any Holder of
Warrants may or may be deemed to purchase Underlying Securities upon the
exercise of Warrants or resale of the Warrant Shares, as the case may be, and
shall use its reasonable best efforts to maintain such registration or
qualification through the earlier of (A) the date upon which all Warrants
have been exercised or all Warrant Shares have been resold, as the case may
be, under the Warrant Registration Statement and (B) the
6
Expiration Date; PROVIDED, HOWEVER, that the Company shall not be required to
(i) qualify as a foreign corporation or as a broker or a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify but
for this Section 4, (ii) file any general consent to service of process or
(iii) subject itself to taxation in any jurisdiction if it is not otherwise
so subject.
5. ACCURACY OF DISCLOSURE.
The Company (and its successors) represents and warrants to each
Holder (and each beneficial owner of a Warrant or Warrant Share) and agrees
for the benefit of each Holder (and each beneficial owner of a Warrant or
Warrant Share) that, except during any period in which the availability of
the Warrant Registration Statement has been suspended, (i) the Warrant
Registration Statement and the documents incorporated by reference therein
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading; and
(ii) the prospectus delivered to such Holder upon its exercise of Warrants or
pursuant to which such Holder sells its Warrant Shares, as the case may be,
and the documents incorporated by reference therein will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
6. INDEMNITY.
The Company hereby agrees to indemnify each beneficial owner of a
Warrant and each person, if any, who controls any beneficial owner of a
Warrant within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), or is
under common control with, or is controlled by, any beneficial owner of a
Warrant (whether or not it is, at the time the indemnity provided for in this
Section 6 is sought, such a beneficial owner), from and against all losses,
damages or liabilities which such beneficial owner or any such controlling or
affiliated person suffers as a result of any breach, on the date of any
exercise of a Warrant by such beneficial owner or the resale of any Warrant
Share by such Holder, in either case pursuant to the Warrant Registration
Statement, of the representations, warranties or agreements contained in
Section 5. Each beneficial owner of a Warrant Share sold pursuant to a
Resale Shelf, by accepting its beneficial ownership of a Warrant, hereby (i)
agrees to provide the Company with information with respect to it that the
Company reasonably requests in connection with any Resale Shelf and (ii)
agrees, severally and not jointly, to indemnify the Company, its directors
and officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act against any liability incurred by it or such controlling person
as a result of any misstatement of information provided by such beneficial
owner to the Company in writing expressly for inclusion in the Resale Shelf.
7
7. EXPENSES.
All expenses incident to the Company's performance of or compliance
with its obligations under this Agreement will be borne by the Company,
regardless of whether a Warrant Registration Statement becomes effective,
including without limitation (i) all Commission or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all reasonable
fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in
preparing, word processing, printing and distributing any registration
statement, any prospectus, any amendments or supplements thereto and other
documents relating to the performance of and compliance with this Agreement,
(iv) the reasonable fees (including legal fees and expenses) and
disbursements of the Warrant Agent, (v) the reasonable fees and disbursements
of counsel for the Company and (vi) the reasonable fees and disbursements, if
any, of the Auditors but excluding (x) fees and disbursements of counsel
retained by the participating Holders and (y) the Holder's share of
underwriting discounts and commissions.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Company and the
Warrant Agent represents to the other that it has not entered into, and
agrees that on or after the date of this Agreement it will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Warrants or Warrant Shares in this Agreement or otherwise conflicts with the
provisions hereof. The Company represents that the rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of the Company's other issued and
outstanding securities under any agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company and the Warrant Agent have
obtained the written consent of Holders of at least a majority of the
outstanding Warrants affected by such amendment, modification, supplement,
waiver or consent; PROVIDED that any amendment, modification or supplement to
this Agreement which, in the good faith opinion of the Board of Directors of
the Company (and evidenced by a resolution of such board), does not adversely
affect any Holder, shall not be subject to such requirement for written
consent.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in
8
accordance with the provisions of this Section 8(c); (ii) if to the Company,
initially at the Company's address set forth in the Indenture and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 8(c); and (iii) if to the Warrant Agent, initially
at the Warrant Agent address set forth in the Warrant Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 8(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation, subsequent Holders;
PROVIDED that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Warrants in violation of the terms of the
Placement Agreement or the Warrant Agreement. If any transferee of any
Holder shall acquire Warrants, in any manner, whether by operation of law or
otherwise, such Warrants shall be held subject to all of the terms of this
Agreement and the Warrant Agreement, and by taking and holding such Warrants
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement or the Warrant
Agreement and such person shall be entitled to receive the benefits hereof.
(e) PURCHASES AND SALES OF WARRANTS. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405
under the Securities Act) not to, purchase and then resell or otherwise
transfer any Warrants other than Warrants acquired and cancelled.
(f) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Placement Agents, and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
9
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) WAIVER OF IMMUNITY. To the extent that the Company has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to
judgement, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such immunity
in respect of their obligations under this Agreement to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CELLNET DATA SYSTEMS, INC.
By /s/ XXXX X. XXXXX
----------------------------------
Name: Xxxx X. Xxxxx
Title: VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
XXXXXX XXXXXXX & CO. INCORPORATED
as Manager on behalf of itself and
the other Placement Agents
By /s/ XXXX X. XXXXXXX
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: PRINCIPAL
