EXHIBIT 99.1
EXECUTION COPY
August 15, 2003
Mr. Xxxxxx Xxxxx CONFIDENTIAL
Chief Executive Officer
Minorplanet Systems PLC
Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx XX0 0XX
XXXXXX XXXXXXX
RE: BINDING LETTER AGREEMENT
Dear Xx. Xxxxx:
This binding Letter Agreement (this "Agreement") sets forth the terms
of certain agreements we have reached with each other regarding certain
contemplated transactions involving Minorplanet Systems PLC, a United Kingdom
public limited company ("MPUK"), and Minorplanet Systems USA, Inc., a Delaware
corporation formerly known as @Track Communications, Inc. ("MPUSA"), as well as
certain of their respective subsidiaries. More specifically, we have reached
certain agreements relating to: (i) an amendment to the Exclusive License and
Distribution Agreement dated June 13, 2001 entered into between Mislex (302)
Limited, as licensee, now known as Minorplanet Systems USA Limited, a United
Kingdom private limited company ("UK Sub 2") which is the wholly-owned
subsidiary of Xxxxx (292) Limited, a United Kingdom private limited company
which is the wholly-owned subsidiary of MPUSA ("UK Sub 1"), and UK Sub 1, as
licensor, which assigned its rights as licensor to Minorplanet Limited (the
"Licensor"), a United Kingdom private limited company which is a subsidiary of
MPUK (the "License Agreement"); (ii) the waiver of certain rights held by MPUK
under (A) that certain Stock Purchase and Exchange Agreement dated February 14,
2001 by and between MPUSA, MPUK and Mackay Xxxxxxx, LLC, a Delaware limited
liability company (the "Stock Purchase Agreement"), (B) an Addendum to the
License Agreement dated September 26, 2002 (the "Addendum") and (C) the Second
Amended and Restated Bylaws of MPUSA (the "Bylaws"); (iii) an Anti-Dilution
Agreement (as defined below); and (iv) certain other transactions described
herein (collectively, the "Transactions"). In consideration of the mutual
agreements and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to this Agreement hereby agree as follows:
1) EXECUTION OF VARIATION AGREEMENT TO LICENSE AGREEMENT. Licensor and
MPUSA agree to execute and deliver to the other party at the Closing (as defined
in Section 3 hereof) the Variation Agreement to the License Agreement (the
"License Amendment"), in the form attached hereto as Exhibit A.
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 2
2) EXECUTION OF IRREVOCABLE WAIVER. MPUK agrees to execute and deliver to
MPUSA at the Closing (as defined in Section 3 hereof) the Irrevocable Waiver and
Consent to Amendment of Bylaws (the "Irrevocable Waiver"), with respect to
certain provisions of the Stock Purchase Agreement and the Bylaws and the waiver
and discharge of the fees, expenses and charges owed under the Addendum in the
approximate amount of $1,760,000, in the form attached hereto as Exhibit B.
3) THE CLOSING. The closing of the Transactions (the "Closing") shall
occur at the offices of Xxxxx Xxxxxxx & Xxxx LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, as soon as practicable after each of the conditions to
closing set forth in Sections 4 and 5 hereof are satisfied or waived (and in no
event later than 10 days thereafter), or at such other place upon which MPUK and
MPUSA may mutually agree in writing. This Agreement may be terminated at any
time prior to the Closing: (a) by mutual written consent duly authorized by the
boards of directors of each of MPUK and MPUSA; (b) by either MPUK, MPUSA or
Licensor if a court of competent jurisdiction or governmental, regulatory or
administrative agency or commission shall have issued a nonappealable final
order, decree or ruling or taken any other action having the effect of
permanently restraining, enjoining or otherwise prohibiting the Transactions
(provided that the party seeking to terminate pursuant to this Section 3(b)
shall have complied with its obligations under this Agreement to use
commercially reasonable efforts to have any such order, decree, ruling or other
action vacated or lifted); (c) by either MPUK or MPUSA, if the requisite vote of
the shareholders of the MPUK in favor of the Transactions shall not have been
obtained at the meeting to be called pursuant to Section 9 hereof and applicable
law, or if the United Kingdom Listing Authority ("UKLA") shall have failed to
approve the shareholders circular relating to said meeting; (d) by MPUK, if
MPUSA shall have breached or failed to perform any of its representations,
warranties, covenants or other agreements contained in this Agreement, which
breach or failure to perform would cause the conditions set forth in Section 5
to not be satisfied and which breach or failure, if capable of being cured,
shall not have been cured within twenty (20) Business Days following receipt by
MPUSA of written notice of such breach or failure from MPUK; (e) by MPUSA, if
MPUK or Licensor shall have breached or failed to perform any of its
representations, warranties, covenants or other agreements contained in this
Agreement, which breach or failure to perform would cause the conditions set
forth in Section 4 to not be satisfied and which breach or failure, if capable
of being cured, shall not have been cured within twenty (20) Business Days
following receipt by MPUK or Licensor of written notice of such breach or
failure from MPUSA; (f) by MPUSA, if any of the conditions to Closing set forth
in Section 4 hereof have not been satisfied by February 15, 2004, or by (g) by
MPUK or Licensor, if any of the conditions to Closing set forth in Section 5
hereof have not been satisfied by February 15, 2004. In the event of the
termination of this Agreement pursuant to this Section 3, this Agreement shall
forthwith become void and there shall be no liability on the part of any party
hereto or any of its affiliates, directors, officers or the
stockholders/shareholders except (i) that the provisions of Sections 8, 10, 11,
12, 13 and 16 hereof shall survive termination and (ii) nothing herein shall
relieve any party from liability for any breach of this Agreement. Each
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 3
of MPUSA and MPUK will use commercially reasonable efforts to comply promptly
with all legal requirements which may be imposed with respect to the Agreement
and to satisfy or cause to have satisfied the conditions set forth in Sections 4
and 5, provided however, that notwithstanding anything to the contrary contained
in this Agreement or any agreement or document contemplated hereby, the
directors of any party shall not be obliged to act in any manner which, in the
opinion of counsel, would be inconsistent with their fiduciary duties, and that
MPUK, Licensor, and their respective affiliates, directors, officers and agents
are not representing nor can they represent or guarantee that the MPUK
Shareholder Consent (as defined below) will be obtained as such matters are
outside of their control and each such person or entity shall have no liability
to any other party if such approval is not obtained.
4) MPUSA CONDITIONS TO CLOSING. The performance of the obligations of
MPUSA hereunder, including, without limitation, the obligation to execute and
deliver the License Amendment, is subject to the fulfillment at or prior to the
Closing of each of the following conditions (all or any of which conditions may
be waived in whole or in part by MPUSA):
a) The License Amendment, in the form attached hereto as Exhibit A, shall
have been duly executed by MPUK and delivered to MPUSA;
b) The Irrevocable Waiver, in the form attached hereto as Exhibit B, shall
have been duly executed by MPUK and delivered to MPUSA;
c) That certain Stock Purchase Agreement by and between MPUK and Xxxx
Xxxxx Investment Corporation, a Canadian corporation ("Xxxx Xxxxx"), in
the form attached hereto as Exhibit C (the "Xxxx Xxxxx Agreement"),
whereby MPUK sells, transfers and assigns to Xxxx Xxxxx 20,378,517
shares of common stock of MPUSA, par value $0.01 per share (the
"Shares"), shall have been duly executed by both of the parties
thereto.
d) The board of directors of each of MPUK and Licensor (as appropriate)
shall have approved (i) the execution and delivery of this Agreement
and all of the other agreements, documents, certificates and
instruments contemplated hereby, including, without limitation, the
License Amendment, the Irrevocable Waiver and the Xxxx Xxxxx Agreement,
and (ii) the consummation of the Transactions;
e) All governmental filings required to be made prior to the date of the
Closing by MPUSA, MPUK and Licensor with, and all governmental, stock
exchange and regulatory consents required to be obtained prior to the
date of the Closing by MPUSA, MPUK and Licensor from, any governmental,
stock exchange or regulatory authority in connection with the execution
and delivery of this Agreement, License Amendment, the Irrevocable
Waiver Agreement, the Xxxx Xxxxx Agreement, and all other documents
contemplated hereby and the consummation of the Transactions shall have
been made or obtained, except where
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 4
the failure to make such filings or obtain such governmental, stock
exchange and regulatory consents would not have a material adverse
effect on MPUSA, MPUK or Licensor or affect either of their ability to
consummate the Transactions contemplated by this Agreement and the
agreements and documents contemplated hereby;
f) The shareholders of MPUK shall have approved the Xxxx Xxxxx Agreement
and the transactions contemplated thereby in accordance with the
applicable rules of the UKLA (the "MPUK Shareholder Consent");
g) There shall not be in effect any judgment, writ, injunction, order
(including any temporary restraining order) or decree issued by a court
or governmental authority of competent jurisdiction in an action or
proceeding (collectively, an "Order") restraining, enjoining, or
otherwise preventing the consummation of the Transactions or permitting
such consummation only subject to any condition or restriction
unacceptable to MPUSA, MPUK or Licensor, each in its reasonable
judgment, nor shall there be pending or threatened by any governmental
authority any suit, action, or proceeding seeking to restrain or
restrict the consummation of the Transactions or seeking damages in
connection therewith, nor shall there be pending any cause of action or
other proceeding commenced by a governmental authority of competent
jurisdiction seeking the imposition of an Order;
h) The resignation of the following persons as directors of UK Sub 1:
Xxxxxx Xxxxx and Xxxxxx Xxxxxxx, shall have been effected, and each of
such individuals shall have delivered to MPUSA a duly executed Form
288b and all other required regulatory filings necessary to effect such
resignations;
i) The resignation of the following person as an officer of UK Sub 1:
Xxxxxx Xxxxx (Secretary), shall have been effected, and each of such
individuals shall have delivered to MPUSA a duly executed Form 288b and
all other required regulatory filings necessary to effect such
resignations;
j) The resignation of the following persons as directors of UK Sub 2:
Xxxxxx Xxxxx and Xxxxxx Xxxxxxx, shall have been effected, and each of
such individuals shall have delivered to MPUSA a duly executed Form
288b and all other required regulatory filings necessary to effect such
resignations;
k) The resignation of the following person as an officer of UK Sub 2:
Xxxxxx Xxxxx (Secretary), shall have been effected, and each of such
individuals shall have delivered to MPUSA a duly executed Form 288b and
all other required regulatory filings necessary to effect such
resignations;
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 5
l) Each of the representations and warranties of MPUK made herein shall
have been true and correct in all material respects as of the date
hereof (except for those which are qualified as to materiality which
shall be true in all respects) and shall be true and correct in all
material respects (except for those which are qualified as to
materiality which shall be true in all respects) on and as of the date
of Closing as though made on and as of the date of Closing;
m) MPUK shall have performed and complied in all material respects with
all terms, covenants, agreements, undertakings, acts, conditions and
obligations required by this Agreement to be performed or complied with
by MPUK prior to or at the Closing;
n) MPUSA shall also have received a certificate from Xxxxxx Xxxxx, the
chief executive officer of MPUK, certifying that the representations
and warranties of such party contained in this Agreement were true and
correct in all material respects when made and are true and correct in
all material respects (except for those which are qualified as to
materiality which shall be true in all respects) on and as of the date
of the Closing as though made on and as of the date of the Closing, and
that MPUK has complied with or performed in all material respects
(except for those which are qualified as to materiality which shall be
true in all respects) all terms, covenants, agreements, undertakings,
acts, conditions and obligations to be complied with or performed by it
on or prior to the date of the Closing;
o) Xxxxxxxx Xxxxxxxxx Professional Corporation, U.S. securities counsel
for MPUK, shall have executed and delivered to Xxxx Xxxxx, MPUSA and
its transfer agent a legal opinion, substantially in the form attached
hereto as Exhibit D, opining that the transfer of the Shares by MPUK to
Xxxx Xxxxx per the Xxxx Xxxxx Agreement is exempt from the registration
requirements of the Securities Act of 1933, as amended, and any
applicable Pennsylvania securities laws; and
p) Xxxx Xxxxx shall have executed and delivered to MPUSA a stock option
repurchase agreement, in a form to be reasonably agreed upon by Xxxx
Mill and MPUSA, in which MPUSA shall receive an option to purchase
19,378,517 of the 20,378,517 Shares acquired by Xxxx Xxxxx pursuant to
the Xxxx Xxxxx Agreement.
5) MPUK CONDITIONS TO CLOSING. The performance of the obligations of MPUK
and Licensor (as applicable) hereunder, including, without limitation, the
obligation to execute and deliver the License Amendment to MPUSA, is subject to
the fulfillment at or prior to the Closing of each of the following conditions
(all or any of which conditions may be waived in whole or in part by MPUK):
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 6
a) The License Amendment, in the form attached hereto as Exhibit A, shall
have been duly executed by MPUSA and delivered to MPUK;
b) The Xxxx Xxxxx Agreement, in the form attached hereto as Exhibit C,
shall have been duly executed and delivered by Xxxx Xxxxx.
c) The Anti-dilution Agreement, in the form attached hereto as Exhibit E
(the Anti-Dilution Agreement"), shall have been duly executed by MPUSA
and delivered to MPUK;
d) The MPUK Shareholder Consent shall have been obtained;
e) All governmental, stock exchange and regulatory filings required to be
made prior to the date of the Closing by MPUSA, MPUK and Licensor with,
and all governmental, stock exchange and regulatory consents required
to be obtained prior to the date of the Closing by MPUSA, MPUK and
Licensor from, any governmental, stock exchange or regulatory authority
in connection with the execution and delivery of this Agreement, the
License Amendment, the Irrevocable Waiver, the Xxxx Xxxxx Agreement,
and all other documents contemplated hereby and the consummation of the
Transactions shall have been made or obtained, except where the failure
to make such filings or obtain such governmental stock exchange and
regulatory consents would not have a material adverse effect on MPUSA,
MPUK or Licensor or affect either of their ability to consummate the
Transactions contemplated by this Agreement and the agreements and
documents contemplated hereby;
f) There shall not be in effect any Order restraining, enjoining, or
otherwise preventing the consummation of the Transactions or permitting
such consummation only subject to any condition or restriction
unacceptable to MPUSA, MPUK or Licensor, each in its reasonable
judgment, nor shall there be pending or threatened by any governmental
authority any suit, action, or proceeding seeking to restrain or
restrict the consummation of the Transactions or seeking damages in
connection therewith, nor shall there be pending any cause of action or
other proceeding commenced by a governmental authority of competent
jurisdiction seeking the imposition of an Order;
g) Each of the representations and warranties of MPUSA made herein shall
have been true and correct in all material respects (except for those
that are qualified by materiality which shall be true and correct in
all respects) as of the date hereof and shall be true and correct in
all material respects (except for those that are qualified by
materiality which shall be true and correct in all respects) on and as
of the date of Closing as though made on and as of the date of Closing;
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 7
h) MPUSA shall have performed and complied in all material respects with
all terms, covenants, agreements, undertakings, acts, conditions and
obligations required by this Agreement to be performed or complied with
by MPUSA prior to or at the Closing; and
i) MPUK shall also have received a certificate from an officer of MPUSA
certifying that the representations and warranties of such party
contained in this Agreement were true and correct in all material
respects (except for those that are qualified by materiality which
shall be true and correct in all respects) when made and are true and
correct in all material respects (except for those that are qualified
by materiality which shall be true and correct in all respects) on and
as of the date of the Closing as though made on and as of the date of
the Closing, and that MPUSA has complied with or performed in all
material respects all terms, covenants, agreements, undertakings, acts,
conditions and obligations to be complied with or performed by it on or
prior to the date of the Closing.
6) REPRESENTATIONS AND WARRANTIES OF MPUK. MPUK and the Licensor hereby
jointly and severally represent and warrant to MPUSA as follows:
a) MPUK is a public limited company duly organized, validly
existing and in good standing under the laws of the United Kingdom. Licensor is
a private limited company, duly organized, validly existing and in good standing
under the laws of the United Kingdom. The board of each of directors of MPUK and
Licensor have duly approved and authorized this Agreement and all other
agreements contemplated hereby, and the consummation of the Transactions. As of
the date of the Closing, MPUK and Licensor shall have the requisite corporate
power and authority to execute and deliver this Agreement and any other
agreement or document executed or to be executed by MPUK or Licensor in
connection herewith (including, without limitation, the License Amendment and
the Irrevocable Waiver) and to perform and comply with all of the terms,
covenants, and conditions to be performed and complied with by MPUK or Licensor
hereunder or thereunder.
b) As of the date of the Closing, the execution, delivery, and
performance by MPUK of this Agreement and all other agreements contemplated
hereby, and the consummation of the Transactions, shall have been duly approved
and authorized by the board of directors of MPUK and Licensor and the
shareholders of MPUK, and all necessary corporate action on the part of MPUK
shall have been taken and such authorization shall have not been withdrawn or
amended in any manner. No other corporate action is necessary on the part of
MPUK or Licensor for the authorization, execution, delivery, and performance by
MPUK or Licensor of this Agreement or any other agreement or document executed
or to be executed by MPUK or Licensor in connection herewith, or for the
consummation by MPUK or Licensor of the Transactions. When duly authorized,
executed and delivered by MPUSA, this Agreement and all such other documents or
instruments contemplated hereby, including, without limitation, the License
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 8
Amendment, shall constitute the valid and binding obligations of MPUK and
Licensor (as applicable).
c) The execution, delivery and performance of this Agreement by
MPUK and Licensor and each of the other documents and instruments required to be
entered into pursuant to this Agreement by MPUK and Licensor (as applicable):
(a) will not violate or conflict with any provision of the Memorandum of
Association or Articles of Association of either MPUK or Licensor, each as
amended then to date (b) will not conflict with or constitute a violation by
MPUK or Licensor of any applicable law, judgment, order, injunction, decree,
rule, regulation or ruling of any governmental authority or stock exchange
applicable to MPUK or Licensor, the enforcement of which would have a material
adverse effect on MPUK or Licensor or on MPUK's or Licensor's (as applicable)
ability to perform its obligations hereunder or the ability of MPUK or Licensor
to consummate the Transactions, and (c) will not, either alone or with the
giving of notice or the passage of time, or both, modify, violate, conflict
with, constitute grounds for termination of, or accelerate the performance
required by, or result in a breach or default of the terms, conditions or
provisions of, or constitute a default under any contract, agreement, note,
bond, mortgage, indenture, deed of trust, license, franchise, permit,
commitment, waiver, exemption, order, obligation, lease, sublease, undertaking,
agreement, offer or other instrument, which violation, conflict, termination,
acceleration, breach or default would have a material adverse effect on MPUK or
Licensor or on the ability of MPUK or Licensor to perform its obligations
hereunder or the ability of MPUK or Licensor to consummate the Transactions.
d) Except for the MPUK Shareholder Approval and any filings
required to be made by MPUK pursuant to the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental authority is required by or with respect to MPUK in
connection with the execution and delivery of this Agreement or any other
agreement, document or instrument contemplated hereby or the consummation of the
Transactions contemplated hereby.
7) REPRESENTATIONS AND WARRANTIES OF MPUSA. MPUSA hereby represents and
warrants to MPUK and Licensor as follows:
a) MPUSA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. As of the date of the Closing,
MPUSA shall have the requisite corporate power and authority to execute and
deliver this Agreement and any other agreement or document executed or to be
executed by MPUSA in connection herewith (including, without limitation, the
License Amendment and the Anti-Dilution Agreement) and to perform and comply
with all of the terms, covenants, and conditions to be performed and complied
with by MPUSA hereunder or thereunder.
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 9
b) The execution, delivery, and performance by MPUSA of this Agreement and
all other agreements contemplated hereby, and the consummation of the
Transactions, shall have been duly approved and authorized by the board of
directors of MPUSA, and all necessary corporate action on the part of MPUSA
shall have been taken and such authorization shall have not been withdrawn or
amended in any manner. No other corporate action is necessary on the part of
MPUSA for the authorization, execution, delivery, and performance by MPUSA of
this Agreement or any other agreement or document executed or to be executed by
MPUSA in connection herewith, or for the consummation by MPUSA of the
Transactions. When duly authorized, executed and delivered by MPUK, this
Agreement and all such other documents or instruments contemplated hereby,
including, without limitation, the License Amendment, shall constitute the valid
and binding obligations of MPUSA.
c) The execution, delivery and performance of this Agreement by MPUSA and
each of the other documents and instruments required to be entered into pursuant
to this Agreement by MPUSA: (a) will not violate or conflict with any provision
of the Certificate of Incorporation or Bylaws of MPUSA, each as amended then to
date (b) will not conflict with or constitute a violation by MPUSA of any
applicable law, judgment, order, injunction, decree, rule, regulation or ruling
of any governmental authority applicable to MPUSA the enforcement of which would
have a material adverse effect on MPUSA or on MPUSA's ability to perform its
obligations hereunder or the ability of MPUSA to consummate the Transactions,
and (c) will not, either alone or with the giving of notice or the passage of
time, or both, modify, violate, conflict with, constitute grounds for
termination of, or accelerate the performance required by, or result in a breach
or default of the terms, conditions or provisions of, or constitute a default
under any contract, agreement, note, bond, mortgage, indenture, deed of trust,
license, franchise, permit, commitment, waiver, exemption, order, obligation,
lease, sublease, undertaking, agreement, offer or other instrument, which
violation, conflict, termination, acceleration, breach or default would have a
material adverse effect on MPUSA or on the ability of MPUSA to perform its
obligations hereunder or the ability of MPUSA to consummate the Transactions.
8) CONFIDENTIALITY. All non-public information and documents relating to
MPUK or MPUSA or any of their respective affiliates or subsidiaries obtained by
the other party or its agents or representatives prior to or after the date of
this Agreement will be treated confidentially by MPUK and MPUSA and their
respective affiliated companies, agents and consultants and not disclosed by
MPUK or MPUSA or their respective affiliated companies, agents and consultants
to third-parties except as required by law or in connection with obtaining
necessary approvals of the Transactions, and will in no event be used by either
of the parties or their respective affiliated companies, agents or consultants
for any purpose unrelated to the consummation of the Transactions.
9) OTHER COVENANTS OF MPUK. MPUK hereby covenants and agrees that from the
date of execution of this Agreement until the Closing to do the following:
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 10
a) MPUK hereby covenants and agrees that it shall, as promptly as
reasonably practicable, take all action necessary in accordance with applicable
law to convene a meeting of its shareholders (including, without limitation,
obtaining UKLA approval of the shareholders circular) and shall use commercially
reasonable efforts to hold such meeting as promptly as reasonably practicable
after the date hereof in accordance with applicable law. The purpose of such
meeting shall be, among other things, to consider and vote upon the approval of
the transactions contemplated by this Agreement as may be required by applicable
law. The board of directors of MPUK shall recommend such approval and MPUK shall
take all lawful action to solicit and obtain such approval. In this regard,
MPUSA agrees to use commercially reasonable efforts to provide such assistance
and information as may reasonably be requested by MPUK in order to obtain
approval by the UKLA of the shareholders circular; provided however, that if
MPUSA incurs any expenses, fees, costs or other liabilities from a third party
in connection with its provision of such assistance or information (including,
without limitation, fees and expenses of auditors and/or other professionals),
then MPUK agrees to promptly reimburse MPUSA for the full amount of such
expenses, fees, costs and other expenses.
b) Notwithstanding any other provision in this Agreement, MPUK agrees that
from and after the execution hereof and through the earlier of the Closing or
the termination of this Agreement, it shall not sell, transfer, dispose of, or
otherwise convey to any Person any of the Shares intended to be transferred
pursuant to the Xxxx Xxxxx Agreement.
10) PUBLICITY. MPUK and MPUSA agree that prior to the making of any public
announcement with respect to this Agreement or any other matter relating to any
of the Transactions, each of MPUK and MPUSA will consult with the other and
shall either agree upon the text of a joint announcement or obtain the other's
prior, written approval of an announcement to be made solely on behalf of such
party. Each party agrees that it shall not reveal nor disclose to the public or
to any third party the existence of, or any provisions contained in, this
Agreement, or negotiations relating to the Transactions, other than with the
express prior written consent of the other party. Notwithstanding anything to
the contrary set forth in this Agreement, either party may make such disclosures
or statements as it determines may be required by law, regulation or rule of any
bona fide governmental authority, stock exchange or similar regulatory authority
including, without limitation, the federal or state securities laws, the rules
and regulations of the U.S. Securities and Exchange Commission (including but
not limited to the filing of any Schedule 13D or Schedule 13G and Section 16(a)
reports by MPUK), Nasdaq, the United Kingdom Listing Authority, the London Stock
Exchange or as required by other material agreements to which such party is
bound.
11) EXPENSES. Each of MPUK and MPUSA shall be responsible for paying its
own expenses in connection with the negotiation and execution of this Agreement
and all the agreements, documents, certificates and instruments contemplated
hereby, and the consummation of the Transactions.
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 11
12) GOVERNING LAW. This Agreement shall be governed by the substantive laws
of the United States of America and the State of Delaware (without regard to
principles of conflicts of laws), and will, to the maximum extent practicable,
be deemed to call for performance in the State of Delaware. The courts within
Wilmington, Delaware will have jurisdiction over any and all disputes between
the parties hereto, whether arising in law or at equity, arising out of or
relating to this Agreement.
13) CONSENT TO JURISDICTION. EACH OF THE PARTIES AGREES TO SUBMIT ITSELF TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN WILMINGTON, DELAWARE.
IN ADDITION, EACH OF THE PARTIES HERETO AGREES THAT IT WILL NOT ATTEMPT TO DENY
OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM
ANY SUCH COURT, AND THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS
AGREEMENT, THE LICENSE AMENDMENT, THE ANTI-DILUTION AGREEMENT, THE IRREVOCABLE
WAIVER OR ANY OF THE TRANSACTIONS IN ANY COURT OTHER THAN SUCH COURT.
14) [INTENTIONALLY LEFT BLANK].
15) ASP SERVICES. In the event that MPUK requires use of a network services
center to host the VMI software application so that its customers can access
their customer data via the Internet ("ASP Services"), MPUK and MPUSA shall
negotiate in good faith (for a period of thirty (30) days) to consummate a
reseller agreement on commercially arm's length terms for the purchase of such
ASP services from MPUSA for resale to such customers prior to attempting to
purchase such ASP Services from a third party.
16) MISCELLANEOUS PROVISIONS.
a) Further Assurances. Each of the parties hereto agrees that, at any time
and from time to time after the date hereof, it shall, upon written request from
the other party hereto, and without further consideration, perform such other
and further acts, and execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such further instruments, documents and assurances
as such other party reasonably may request for the purpose of carrying out this
Agreement.
b) Entire Agreement. This Agreement, the Exhibits hereto and any other
written agreements by the parties hereto that are expressly contemplated hereby
to be entered into, constitutes the entire agreement and understanding of the
parties hereto with respect to the subject matters hereof and thereof and
supersedes any and all prior negotiations, agreements, arrangements and
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 12
understandings between the parties, written or oral, relating to the matters
provided for herein or therein.
c) Amendment; Modification. This Agreement may not be amended or modified
except by an instrument in writing signed by a duly authorized officer of each
of MPUSA, Licensor and MPUK.
d) Waivers. Any agreement on the part of a party hereto to any waiver of
any provision of this Agreement shall be valid and effective only if set forth
in an instrument in writing signed on behalf of such party against whom
enforcement of any waiver or consent is sought by such first party or a duly
authorized officer thereof, if applicable. Any such waiver shall not be deemed a
continuing waiver.
e) Section Headings; Interpretation. Reference in this Agreement to a
Section, unless otherwise indicated, shall constitute references to a Section of
this Agreement. The section headings contained in this Agreement are for
convenience of reference only and do not form a part hereof and shall not affect
in any way the meaning or interpretation of this Agreement. The parties hereto
agree that this Agreement is the product of negotiations among sophisticated
parties, all of whom were represented by counsel, and each of whom had an
opportunity to participate in, and did participate in the drafting of each
provision hereto. Accordingly, ambiguities in this Agreement, if any, shall not
be construed strictly against any party hereto but rather shall be given a fair
and reasonable construction without regard to the rule of contra proferentem.
f) Binding Agreement; Assignment. This Agreement is binding upon, will
inure to the benefit of, and be enforceable by, the parties hereto and their
respective heirs, successors and permitted assigns. Neither this Agreement nor
any of the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise by any of the
parties hereto, without the prior written consent of the other party hereto.
g) Notices. Any notices, consents or other communications required or
permitted to be given under the provisions of this Agreement shall be in writing
and shall be deemed to have been duly delivered if delivered by the following
sole means of delivery, and shall be deemed to have been duly delivered and
received on the next date (or the next Business Day if delivery is not made on a
Business Day) of a sent receipt, if sent by an overnight delivery service, and
sent to the address set forth above if to MPUK; Attention Xxxxxx Xxxxx, or to
0000 Xxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000; Attention J. Xxxxxxx Xxxxxx
if to MPUSA, with a copy (which shall not constitute notice) to Xxxxx Liddell &
Xxxx LLP, Attention: Xxxxxxx X. Xxxx, Esq., 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 (or to such other address as any party may request by
providing notice of such change as provided above in this Section).
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 13
(h) Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be deemed an
original, and all of which when taken together shall be considered one and the
same instrument, and this Agreement shall become effective when such
counterparts have been signed by each of the parties hereto and delivered to the
other parties. The parties hereto agree that signatures of the parties and their
duly authorized officers may be exchanged by facsimile transmission, and that
such signatures shall be binding to the same extent, and have the same force and
effect, as the exchange of original written signatures. The originals of such
signatures shall be sent to the other parties hereto by overnight courier.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 14
If the foregoing sets forth our mutual agreement concerning these matters,
please so indicate by signing below in the space provided and returning the
extra copy of this Agreement to the undersigned. Your signature shall complete
this Agreement and make it a binding agreement between the parties.
Very truly yours,
MINORPLANET SYSTEMS USA, INC.
By: /s/ W. Xxxxxxx Xxxxx
----------------------------------
W. Xxxxxxx Xxxxx
Chief Operating Officer
Mr. Xxxxxx Xxxxx
Chief Executive Officer
August 15, 2003
Page 15
ACCEPTED AND AGREED TO:
MINORPLANET SYSTEMS PLC
By: /s/ Xxxxxx Xxxxx
----------------------------------
Xxxxxx Xxxxx
Chief Executive Officer
Date: 8/15/03
---------------------------------
LICENSOR
MINORPLANET LIMITED
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
---------------------------------
Title: Secretary
--------------------------------
Date: 8-15-2003
EXHIBIT A
THE LICENSE AMENDMENT
DATED AUGUST [ ], 2003
MINORPLANET LIMITED
- and -
MINORPLANET SYSTEMS USA LIMITED
VARIATION AGREEMENT
AGREEMENT dated 2003
PARTIES:
(1) MINORPLANET LIMITED a company incorporated in England under Company
Number 4072786 whose registered office is at Xxxxxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx XX0 0XX (the "Licensor");
AND
(2) MINORPLANET SYSTEMS USA LIMITED a company incorporated in England under
Company Number 4131647 whose registered office is at Xxxxxxxxx Xxxxx,
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx XX0 0XX, but whose address for purposes
of the receipt of written notices under Clause 30 of the Principal
Agreement (as defined below) shall be 0000 Xxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx, 00000 (the "Licensee").
RECITALS:
(A) Whereas an exclusive licence and distribution agreement dated 13 June
2001 (the "Principal Agreement") was entered into between (1) Xxxxx
(292) Limited (formerly known as Minorplanet Limited), a company
registered in England under Company Number 3213219 whose registered
office is at Xxxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx XX0 0XX
and (2) the Licensee (formerly known as Mislex (302) Limited).
(B) Whereas a hive-across agreement dated 15 June 2001 (the "Hive-Across
Agreement") was entered into between (1) the Licensor (2) Xxxxx (292)
Limited and (3) Minorplanet Systems PLC.
(C) Whereas pursuant to the Hive-Across Agreement, the Licensor acquired
the contractual rights of Xxxxx (292) Limited under the terms of the
Principal Agreement;
(D) Whereas, Licensor and Licensee modified the Principal Agreement via
that certain letter amendment dated October 23, 2001 (the "First
Amendment") to permit Licensee to place orders for the Product directly
which such manufacturer of the Product as designated by Licensor and
pay such manufacturer directly for such Product orders;
(E) Whereas, Licensor and License modified the Principal Agreement, as
amended by the First Amendment, by execution of that certain Addendum
to Exclusive Licence and Distribution Agreement dated September 26,
2002 (the "Addendum");
(F) The Licensor and Licensee have agreed to modify the terms of the
Principal Agreement, as amended by the First Amendment and Addendum, in
the manner hereinafter appearing.
IT IS AGREED as follows:
1. Words and expressions defined in the Principal Agreement shall, unless
the context otherwise requires, have the same meanings where used in
this Agreement.
2. In consideration of the agreements and undertakings herein set out the
parties to this Agreement have granted the rights and accepted the
obligations hereinafter appearing.
3. The Principal Agreement, as amended by the First Amendment and Addendum
shall be modified as follows:
3.1 The lone paragraph in Clause 2, paragraph 1 should be
renumbered 2.1 and a new Clause 2.2 shall be inserted as
follows:
2.2 Notwithstanding the foregoing, Licensor shall retain the
right to grant the right to carry on the Business, on a
non-exclusive basis, in the following states in the United
States of America: Maine, New Hampshire, Vermont, Connecticut,
Rhode Island, Massachusetts, New York, Pennsylvania, Maryland,
Delaware, New Jersey, District of Columbia (the "Retained
Territory") to individuals or entities (the "Retained
Territory Licensees") and to carry on the Business itself in
the Retained Territory; provided, however, that Licensee shall
have the non-exclusive right to carry on the Business under
the Trademarks in the Retained Territory for the Term and
subject to the terms and conditions below.
3.2 Clause 3.6 shall be deleted in its entirety and replaced by
the following:
3.6 The Licensor reserves the right from time to time to
modify the design, operation or performance of the
Product and the Licensor shall as soon as reasonably
practicable notify the Licensee in writing of such
changes; provided, however, no such modification
shall substantially eliminate the primary
functionality of the Product for Licensee's customers
as the same may exist from time to time during the
term of this Agreement.
3.2 The last sentence of Clause 5.1 shall be deleted in its
entirety and replaced by the following:
Upon Licensor's Request, the Licensee shall provide to
Licensor copies of End User Software Licences then in effect.
3.3 Clause 11.3 shall be deleted in its entirety and replaced with
the following: "The Licensor may at any time modify or vary
any of the Products without liability to the Licensee. The
Licensor shall give to the Licensee 30 days written notice of
any modification or variation unless the same shall have no
substantial adverse effect upon performance, cost or
maintenance."
3.4 A new Clause 34 shall be added to the Agreement as follows:
2
34. Carrying on the Business Outside Retained Territory. In
the event that Licensor or the Retained Territory Licensees
carry on the Business in areas outside of the Retained
Territory but within the Territory, Licensor shall pay to
Licensee a penalty royalty of 2% of the gross revenues
generated from sales of the System in areas outside of the
Retained Territory but within the Territory. Licensee shall
have the right to appoint a third party that is a bona fide
certified public accountant to audit the books and records of
the Retained Territory Licensees at its sole expense to the
extent reasonably necessary to determine compliance with this
Clause 34 upon fifteen (15) days prior written notice.
3.5 The last sentence in Clause 16.4 shall be deleted in its
entirety.
4. The Principal Agreement, as amended by the First Amendment and Addendum
and, as amended by this Variation Agreement, shall remain in full force
and effect.
5. The provisions of Clauses 26 (Severability), 29 (Waiver), 30 (Notices)
and 31 (Entire Agreement) (inclusive) shall apply, mutatis mutandis, to
this Agreement as they apply to the Principal Agreement; provided,
however, that Clause 26.2 shall be deleted in its entirety.
6. This Variation Agreement may be executed in one or more counterparts,
each of which when executed and delivered shall be deemed an original,
and all of which when taken together shall be considered one and the
same instrument, and this Variation Agreement shall become effective
when such counterparts have been signed by each of the parties hereto
and delivered to the other parties. The parties hereto agree that
signatures of the parties and their duly authorized officers may be
exchanged by facsimile transmission, and that such signatures shall be
binding to the same extent, and have the same force and effect, as the
exchange of original written signatures. The originals of such
signatures shall be sent to the other parties hereto by overnight
courier.
3
EXECUTED under hand in two originals the day and year first before
written.
SIGNED by a duly authorised )
officer for and on behalf of )
MINORPLANET LIMITED )
in the presence of:- )
SIGNED by a duly authorised )
officer for and on behalf of )
MINORPLANET SYSTEMS USA )
LIMITED in the presence of:- )
4
EXHIBIT B
THE IRREVOCABLE WAIVER
IRREVOCABLE WAIVER
AND CONSENT TO AMENDMENT OF BYLAWS
THIS IRREVOCABLE WAIVER AND CONSENT TO AMENDMENT OF BYLAWS (this
"Waiver") is executed by Minorplanet Systems PLC, a United Kingdom public
limited company ("MPUK"), to be effective as of August_______, 2003.
WHEREAS, Minorplanet Systems USA, Inc., a Delaware corporation formerly
known as @ Track Communications, Inc. ("MPUSA"), MPUK and Mackay Xxxxxxx, LLC, a
Delaware limited liability company, entered into that certain Stock Purchase and
Exchange Agreement dated as of February 14, 2001 (the "Purchase Agreement"), and
pursuant thereto, MPUK, among others, purchased shares of MPUSA's common stock,
par value $0.01 per share;
WHEREAS, MPUK has elected to not appoint any Investor Directors (as
such term is defined in MPUSA's Second Amended and Restated Bylaws (the
"Bylaws"));
WHEREAS, the following parties entered into that certain Exclusive
License and Distribution Agreement (the "License Agreement") dated June 13, 2001
Mislex (302) Limited, as licensee, now known as Minorplanet Systems USA Limited,
a United Kingdom private limited company which is the wholly-owned subsidiary of
Xxxxx (292) Limited, a United Kingdom private limited company which, in turn, is
the wholly-owned subsidiary of MPUSA, and Xxxxx (292) Limited, as licensor,
which assigned its rights as licensor to Minorplanet Limited, a United Kingdom
private limited company which is a subsidiary of MPUK, and such parties
subsequently entered into that certain Addendum to the License Agreement dated
September 26, 2002, which provided for the payment of certain fees, expenses and
charges (the "Addendum"); and
WHEREAS, in connection with, and as a condition to the closing of
certain transactions contemplated by, that certain binding Letter Agreement by
and between MPUSA and MPUK dated August __, 2003 (the "Letter Agreement"), MPUK
desires to waive any requirement of MPUSA to comply, after the date hereof, with
certain provisions of the Purchase Agreement, the Bylaws and the Addendum as set
forth below and release MPUSA from any liability in connection with any future
violations of such provisions.
In consideration of the premises and the mutual agreements herein set
forth and the entering into of the Letter Agreement and the consummation of the
transactions contemplated thereby, MPUK hereby agrees as follows:
1. MPUK hereby irrevocably and forever waives the performance and
discharge of any and all obligations and restrictions that have been or may be
imposed on MPUSA pursuant to Sections 6.01, 6.02, 6.03, 6.04, 7.09, 7.16, 7.17
and 7.27 of the Purchase Agreement after the date hereof. Notwithstanding
anything to the contrary in Section 11.06 or any other provision of the Purchase
Agreement, this waiver is a continuing and irrevocable waiver by MPUK.
2. MPUK hereby irrevocably and forever waives the performance and
discharge of any and all obligations and restrictions that may have been or may
be imposed on MPUSA pursuant to Article XI of MPUSA's Bylaws (including, without
limitation, the right to elect or
designate directors pursuant to such provisions) after the date hereof, and MPUK
hereby irrevocably consents to, approves and authorizes MPUSA to amend the
Bylaws to forever remove Article XI from such Bylaws. Notwithstanding anything
in the Bylaws to the contrary, the waiver granted hereby is a continuing and
irrevocable waiver of MPUK.
3. MPUK hereby irrevocably and forever waives the performance and
discharge by MPUSA and any of its affiliates and subsidiaries of any and all
obligations and liabilities for any and all fees, expenses and charges for
"Executive Sales/Marketing Consulting Services," including without limitation,
compliance by MPUSA with Sections 3 and 5 of the Addendum prior to or after the
date hereof. For purposes of reference, a copy of the Addendum is attached
hereto as Exhibit A. Notwithstanding anything to the contrary contained in the
Addendum or the License Agreement, this waiver is a continuing and irrevocable
waiver by MPUK.
4. MPUK, for itself, its affiliates, its successors and assigns,
and on behalf of each of the foregoing, does now RELEASE, ACQUIT and FOREVER
DISCHARGE MPUSA, its employees, shareholders, directors, subsidiaries,
affiliates and officers, and their respective successors and assigns, of and
from any and all claims, demands, actions, judgements and executions which MPUK
or its affiliates or subsidiaries (including, without limitation, the parties to
the License Agreement and Addendum), or their respective successors and assigns
may have or claim to have, against MPUSA, its employees, shareholders, directors
subsidiaries, affiliates and officers, and their respective successors and
assigns, in any capacity, arising out of or in any way connected with MPUSA's
compliance or noncompliance with the provisions of Sections 6.01, 6.02, 6.03,
6.04, 7.09, 7.16, 7.17 and 7.27 of the Purchase Agreement, Article XI of the
Bylaws or Sections 3 and 5 of the Addendum (including, without limitation, any
obligation to make any payment for "Executive Sales/Marketing Consulting
Services") after the date hereof.
5. MPUK agrees that, except as expressly modified by this Waiver,
the Purchase Agreement (as well as the Bylaws, Addendum and License Agreement,
as applicable) shall remain in full force and effect as modified by this Waiver.
Except as provided herein, this Waiver shall not be a waiver of any other
section or provision of the Purchase Agreement (nor the Bylaws, the Addendum or
License Agreement, as applicable). This Waiver shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to that body of law pertaining to choice of law or conflict of law.
6. MPUK agrees that its signature and that of its duly authorized
officers may be exchanged by facsimile transmission, and that such signature
shall be binding to the same extent, and have the same force and effect, as the
exchange of an original written signature. The originals of such signature shall
be sent to the other parties hereto by overnight courier.
(SIGNATURE PAGE FOLLOWS)
2
EXECUTED effective as of the date first set forth above.
MINORPLANET SYSTEMS, PLC
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF _______________
COUNTY OF _____________
Personally appeared before me, a notary public in and for the
jurisdiction aforesaid, _________________________, the _______________ of
Minorplanet Systems, PLC, a United Kingdom public limited company, who
acknowledged that he executed the above and foregoing Irrevocable Waiver and
Consent to Amendment of Bylaws in his capacity as ___________ of Minorplanet
Systems, PLC, and as the act of the company.
This the ____ day of ____________, 2003.
__________________________________
NOTARY PUBLIC
My Commission Expires:
EXHIBIT A
THE ADDENDUM
[TO BE ATTACHED BY THE COMPANY]
EXHIBIT C
XXXX XXXXX AGREEMENT
DRAFT
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") entered into
on, August 15, 2003 between Minorplanet Systems PLC, a United Kingdom public
limited company ("MPUK" or "Seller").), and The Xxxx Xxxxx Investment
Corporation, a Canadian corporation ("Xxxx Xxxxx").
RECITALS
A. WHEREAS, MPUK owns certain shares of common stock, par value
$.01 per share (the "Common Stock") of Minorplanet Systems USA, Inc., a Delaware
corporation formerly known as @Track Communications, Inc. ("MPUSA");
B. WHEREAS, in connection with, and as a condition to the closing
of certain transactions contemplated by, that certain binding letter
agreement]by and between MPUSA, MPUK and certain of their subsidiaries dated
August 13, 2003 (the "Letter Agreement"), MPUK desires to sell and Xxxx Xxxxx
desires to purchase 20,378,517 shares of Common Stock (the "Shares" or
"Securities");
C. WHEREAS, contemporaneously with the closing under the Letter
Agreement (the "Closing"), MPUK has agreed to sell to Xxxx Xxxxx, and Xxxx Xxxxx
has agreed to purchase from MPUK the Shares for an aggregate purchase price of
U.S.$1.00 (the "Purchase Price").
AGREEMENT
In consideration of the premises and the mutual agreements and
covenants herein contained, the parties hereby agree as follows:
1. At the Closing, MPUK shall sell to Xxxx Xxxxx, and Xxxx Xxxxx shall
purchase from MPUK the Shares.
2. The consideration for the purchase and sale of the Shares shall be the
Purchase Price. At the Closing the parties will evidence the payment of the
Purchase Price by Xxxx Xxxxx and the receipt of the Purchase Price by MPUK by a
cross receipt.
3. MPUK hereby represents and warrants to Xxxx Xxxxx as follows:
(a) MPUK has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This
Agreement, when executed and delivered by MPUK will constitute a valid and
legally binding obligation of MPUK, enforceable against it in accordance with
its terms.
(b) MPUK owns the Shares free and clear of any liens, claims, or
encumbrances other than those imposed by applicable securities laws.
(c) MPUK is the sole holder of record and beneficial owner of all
20,378,517 Shares. There are no outstanding warrants, options, rights of refusal
or otherwise, agreements, calls or other commitments or similar agreements (in
each case, to which MPUK is a party) relating to, providing for or prohibiting
the sale, conveyance, transfer, gift, pledge, mortgage or other disposition or
encumbrance or the granting or permitting any person, corporation, partnership,
limited liability company, trust or other entity to acquire the Shares, or any
part thereof, except as provided by this Agreement.
(d) MPUK has not granted any proxy with respect to the Shares, or
entered into any voting agreement or other arrangement with respect to the
Shares which restricts in any way MPUK's voting of the Shares.
4. Xxxx Xxxxx hereby represents and warrants to MPUK as follows:
(a) Xxxx Xxxxx has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. This
Agreement, when executed and delivered by Xxxx Xxxxx, will constitute a valid
and legally binding obligation of Xxxx Xxxxx, enforceable against it in
accordance with its terms.
(b) Xxxx Xxxxx understands that the transfer of Securities has
not been registered under the Securities Act of 1933, as amended (the "Federal
Act" or "Securities Act") or any state's securities laws by reason of the
availability of the so-called Section 4(1 1/2) hybrid exemption which depends in
part upon the representations made by Xxxx Xxxxx in this Agreement. Xxxx Xxxxx
understands that MPUK is relying upon Xxxx Xxxxx' representations and agreements
contained in this Agreement (and any supplemental information furnished by Xxxx
Xxxxx, if any) for the purpose of determining whether this transaction meets the
requirements for such exemption.
(c) Xxxx Xxxxx has such knowledge, skill and experience in
business, financial and investment matters so that Xxxx Xxxxx is capable of
evaluating the merits and risks of an investment in the Securities. To the
extent that Xxxx Xxxxx has deemed it appropriate to do so, Xxxx Xxxxx has
retained, and relied upon, appropriate professional advice regarding the tax,
legal and financial merits and consequences of the investment in the Securities.
(d) Xxxx Xxxxx has made, either alone or together with
advisors (if any), such independent investigation of MPUSA, its management, and
related matters as Xxxx Xxxxx deems to be, or such advisors (if any) have
advised to be, necessary or advisable in connection with an investment in the
Securities; and Xxxx Xxxxx and Xxxx Xxxxx' advisors (if any) have received all
information and data which Xxxx Xxxxx and such advisors (if any) believe to be
necessary in order to reach an informed decision as to the advisability of an
investment in the Securities.
(e) Xxxx Xxxxx is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D promulgated under the Federal Act.
- 2 -
(f) Xxxx Xxxxx represents that (i) it has adequate means of
providing for Xxxx Xxxxx' financial needs and possible contingencies and has
assets or sources of income which, taken together, are more than sufficient so
that Xxxx Xxxxx could bear the risk of loss of Xxxx Xxxxx' entire investment in
the Securities, (ii) it has no present or contemplated future need to dispose of
all or any portion of the Securities to satisfy any existing or contemplated
undertaking, need or indebtedness, and (iii) it is capable of bearing the
economic risk of an investment in the Securities for the indefinite future. Xxxx
Xxxxx agrees to furnish any additional information requested by MPUK to assure
compliance of this transaction with applicable United Kingdom, Federal and state
securities laws in connection with the purchase and sale of the Securities.
(g) Xxxx Xxxxx understands that the Securities are "restricted
securities" under applicable Federal securities laws and that the Federal Act
and the rules of the Securities and Exchange Commission provide in substance
that Xxxx Xxxxx may dispose of the Securities only pursuant to an effective
registration statement under the Federal Act or an exemption from such
registration, if available. Xxxx Xxxxx further understands that MPUK has no
obligation or intention to cause to be registered on anyone's behalf or to take
action so as to permit sales pursuant to the Federal Act of the Securities.
Accordingly, Xxxx Xxxxx, absent some other arrangement with MPUSA, may dispose
of the Securities only in certain transactions which are exempt from
registration under the Federal Act, including "private placements," in which
event the transferee will acquire a "restricted security" subject to the same
limitations as in the hands of Xxxx Xxxxx. As a consequence, Xxxx Xxxxx
understands that Xxxx Xxxxx must bear the economic risks of the investment in
the Securities for an indefinite period of time.
(h) Xxxx Xxxxx hereby confirms that Xxxx Xxxxx is acquiring
the Securities for investment only and not with a view to or in connection with
any resale or distribution of the Securities. Xxxx Xxxxx hereby affirms that
Xxxx Xxxxx has no present intention of making any sale, assignment, pledge,
gift, transfer or other disposition of the Securities or any interest therein,
except for sales or transfers to MPUSA as contemplated by the certain Stock
Repurchase Option Agreement between Xxxx Xxxxx and MPUSA, dated the date hereof.
(i) Xxxx Xxxxx hereby confirms that its principal domicile is
in Barbados.
(j) Xxxx Xxxxx has read and fully reviewed the information
regarding MPUSA set forth in MPUSA's public disclosures and its filings made
with the Securities and Exchange Commission.
(k) Xxxx Xxxxx acknowledges and agrees that the certificate(s)
evidencing the Securities bear a Securities Act restrictive legend.
5. Xxxx Xxxxx, to the best of its knowledge, represents that neither MPUSA,
MPUK nor any person acting on their behalf has offered or sold the Securities to
Xxxx Xxxxx by any form of general solicitation, general or public media
advertising or mass mailing.The only condition to Xxxx Xxxxx' performance of its
obligation hereunder shall be that each of the representations and warranties of
MPUK made herein shall have been true and correct
- 3 -
in all material respects as of the date hereof (except for those which are
qualified as to materiality which shall be true in all respects) and shall be
true and correct in all material respects (except for those which are qualified
as to materiality which shall be true in all respects) on and as of the date of
Closing as though made on and as of the date of Closing;
6. The only condition to MPUK's performance of its obligation hereunder shall
be that each of the representations and warranties of Xxxx Xxxxx made herein
shall have been true and correct in all material respects as of the date hereof
(except for those which are qualified as to materiality which shall be true in
all respects) and shall be true and correct in all material respects (except for
those which are qualified as to materiality which shall be true in all respects)
on and as of the date of Closing as though made on and as of the date of
Closing;
7. This Agreement may not be amended or modified except by an instrument in
writing signed by a duly authorized officer of each of MPUSA and Xxxx Xxxxx. Any
agreement on the part of a party hereto to any waiver of any provision of this
Agreement shall be valid and effective only if set forth in an instrument in
writing signed on behalf of such party against whom enforcement of any waiver or
consent is sought by such first party or a duly authorized officer thereof, if
applicable. Any such waiver shall not be deemed a continuing waiver.
8. This Agreement may be executed in one or more counterparts, each of which
when executed and delivered shall be deemed an original, and all of which when
taken together shall be considered one and the same instrument, and this
Agreement shall become effective when such counterparts have been signed by each
of the parties hereto and delivered to the other parties. The parties hereto
agree that signatures of the parties and their duly authorized officers may be
exchanged by facsimile transmission, and that such signatures shall be binding
to the same extent, and have the same force and effect, as the exchange of
original written signatures. The originals of such signatures shall be sent to
the other parties hereto by overnight courier.
9. Each of the parties hereto agrees that, at any time and from time to time
after the date hereof, it shall, upon written request from the other party
hereto, and without further consideration, perform such other and further acts,
and execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, such further instruments, documents and assurances as such other
party reasonably may request for the purpose of carrying out this Agreement.
10. This Agreement constitutes the entire agreement and understanding of the
parties hereto with respect to the subject matters hereof and thereof and
supersedes any and all prior negotiations, agreements, arrangements and
understandings between the parties, written or oral, relating to the matters
provided for herein or therein.
11. This Agreement shall be null and void if the Closing does not occur for any
reason whatsoever or upon the termination of the Letter Agreement (including but
not limited to if the closing under the Letter Agreement has not occurred by
February 15, 2004) in
- 4 -
accordance with its terms. After Closing, the representations and warranties
contained herein shall survive for a period of one (1) year from the date of
Closing.
12. This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to its conflicts of law rules).
[Remainder of this Page Intentionally Left Blank]
- 5 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a document under seal by their duly authorized officers as of the
day and year first above written.
MINORPLANET SYSTEMS PLC
Date: August 15, 2003 By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
Chief Executive Officer
THE XXXX XXXXX INVESTMENT
CORPORATION
Date: August 15, 2003 By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: President
- 6 -
EXHIBIT D
LEGAL OPINION OF XXXXXXXX XXXXXXXXX
FORM OF OPINION
______________, 0000
Xxxxxxxxxxx Systems USA, Inc.
0000 Xxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
The Xxxx Xxxxx Investment Corporation
0000 Xxxxx Xx., Xxxxx 000
Xxxxxxx, XXXXXXX X0X 0X0
Mellon Investor Services, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Re: Minorplanet Systems PLC ("MPUK")
Ladies and Gentlemen:
We understand pursuant to the Stock Purchase and Sale Agreement
attached hereto as Exhibit A (the "Agreement"), that MPUK, a holder of common
stock, par value $0.01 per share (the "Common Stock") of Minorplanet Systems
USA, Inc., a Delaware corporation (the "Company"), wishes to transfer
[20,378,517] shares (the "Shares") of Common Stock to The Xxxx Xxxxx Investment
Corporation, a Canadian corporation ("Xxxx Xxxxx"). We have been asked to
provide each of you with this opinion by our client MPUK for which we have been
acting as special U.S. counsel. In connection therewith, we have received the
representation letters from each of MPUK and Xxxx Xxxxx attached hereto as
Exhibit B and Exhibit C respectively (collectively, Exhibits A through C being
the "Exhibits").
As to factual matters based solely upon and in reliance on the Exhibits
(including assuming the truth, accuracy and completeness of the representations
and other statements made therein), it is our opinion that the transfer of the
Shares to Xxxx Xxxxx pursuant to the Agreement would not require registration
under the Securities Act of 1933, as amended (the "Securities Act") or the
Pennsylvania Securities Act of 1972, as amended (the "PA Act").
In addition to the qualifications set forth above, the foregoing
opinion is subject to the following qualifications:
Following the transfer of the Shares from the Seller to Xxxx
Xxxxx (the "Transferred Shares"), any certificates representing any Transferred
Shares will bear a legend restricting transfer of such Transferred Shares under
the Securities Act;
In rendering our opinion, we have assumed that (1) the
original transaction by which the Shares were received from the Company was
exempt from the registration requirements under the Securities Act by means of
Section 4(2) under the Securities Act (or an exemption provided for in the rules
and regulations promulgated under such section); (2) the Shares have "come to
rest" in the hands of MPUK; (3) the Company is not conducting a distribution or
other offering of Common Stock, other than the Shares (or an other offering or
distribution of any security which could be integrated with the current transfer
of the Shares to Xxxx Xxxxx); (4) the Company has observed all the requirements
of Rule 502(c) under the Securities Act as it relates to the transfer of the
Shares under the Agreement as though this transfer was a primary sale under Rule
506 and (5) the Stock Repurchase Option Agreement between Xxxx Xxxxx and the
Company, dated the date hereof remains unassignable and non-transferable;
In rendering our opinion, we have assumed that courts and the
U.S. Securities and Exchange Commission would rely upon and give effect to the
policy and interpretative positions expressed in the so-called Section 4(1 1/2)
hybrid exemption;
We express no opinion as to compliance with (i) the "Blue Sky"
or securities laws of any state (other than compliance with the registration
requirements of the PA Act as set forth herein); (ii) the securities laws of any
other jurisdiction (other than compliance with the registration requirements of
the Securities Act as set forth herein); or (iii) any rules or regulations of
any exchange, quotation system or trading market or trading system;
We express no opinion as to any contractual matter relating to
the permissibility of, or authorization for, this transfer of the Shares;
We express no opinion with respect to any transfer by Xxxx
Xxxxx of any Transferred Shares that occurs following the transfer described in
the first paragraph of this opinion;
We express no opinion as to compliance with the anti-fraud
provisions of federal securities laws; and
We express no opinion as to any other matter related to this
transfer of the Shares or the transactions contemplated by the Agreement.
We are licensed to practice law in the Commonwealth of Pennsylvania and
do not hold ourselves out to be experts on, or generally familiar with, or
qualified to express a legal opinion on, the laws of any jurisdiction other than
the general laws of the Commonwealth of Pennsylvania and the federal laws of the
United States.
This opinion is based on current law and facts and circumstances. We
are not assuming an obligation to revise or supplement this opinion should
applicable law or the existing facts and circumstances change.
This opinion is being rendered solely for your benefit and is not
intended for, and may not be relied upon by, any other person or entity without
our prior written consent.
Very truly yours,
XXXXXXXX XXXXXXXXX
PROFESSIONAL CORPORATION
By___________________________________
Enclosures
EXHIBIT A
EXHIBIT B
(Minorplanet Systems PLC)
CERTIFICATE TO XXXXXXXX INGERSOLL PROFESSIONAL CORPORATION
The undersigned, ______________, in his or her capacity as
______________________ of Minorplanet Systems PLC, a United Kingdom public
limited company ("Seller"), in connection with the secondary transfer of
[20,378,517] shares of Common Stock (the "Shares") of Minorplanet Systems USA,
Inc., a Delaware corporation (the "Company") from Seller to The Xxxx Xxxxx
Investment Corporation ("Xxxx Xxxxx") pursuant to the Stock Purchase and Sale
Agreement dated as of __________ ___, 2003 between Xxxx Xxxxx and Seller (the
"Agreement"), hereby certifies to Xxxxxxxx Ingersoll Professional Corporation
("BIPC"), upon which certification BIPC may rely in delivering an opinion, as
follows:
1. Seller has not and to its knowledge, no other person or
entity, including Xxxx Xxxxx or the Company or any of their
affiliates and associates, has violated the restrictions set
forth in Rule 502(c)(1) under the Securities Act as it relates
to the transfer of the Shares contemplated by the Agreement.
2. Seller did not take the Shares with a view to a distribution
of the Shares or of any other security of the Company, nor
does it or did it ever have the intention to participate
either directly or indirectly in any such undertaking, nor is
it Seller's intention to participate or have a participation
in the direct or indirect underwriting of any such
undertaking;
3. Seller paid to the Company the full consideration payable for
the Shares pursuant to the Stock Purchase and Exchange
Agreement dated February 14, 2001 and Seller has held
beneficially and of record the Shares continuously through the
date hereof;
4. The Seller has not, and to its knowledge no other person or
entity has, paid or received any commission or other
consideration for the transfer of the Shares by Seller to Xxxx
Xxxxx which is or could reasonably be characterized as a
commission or discount such that such party would be receiving
consideration for placing or underwriting the Shares.
All capitalized terms not otherwise defined or limited herein are used
as defined in the above-referenced opinion.
----------
(1) Defined to mean, neither the Company nor the Seller (as it relates to
Paragraph 1 above) nor any person acting on their respective behalves shall
offer or sell (or has offered or sold) the securities by any form of general
solicitation or general advertising, including, but not limited to, the
following: (i) any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio; and (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising.
You may rely on this Certificate, and on the representations,
warranties and declarations in the Agreement, in delivering your opinion and any
other opinion or opinions delivered by you in connection with the transactions
contemplated by the Agreement.
[the remainder of this page intentionally left blank]
Respectfully submitted,
MINORPLANET SYSTEMS PLC
By:________________________________
Name:______________________________
Title:_____________________________
Dated as of: _________________, 2003.
EXHIBIT C
(The Xxxx Xxxxx Investment Corporation)
CERTIFICATE TO XXXXXXXX INGERSOLL PROFESSIONAL CORPORATION
The undersigned, ______________, in his or her capacity as
______________________ of The Xxxx Xxxxx Investment Corporation ("Xxxx Xxxxx")
in connection with the secondary transfer of [20,378,517] shares of Common Stock
(the "Shares") of Minorplanet Systems USA, Inc., a Delaware corporation (the
"Company") from Minorplanet Systems PLC, a United Kingdom public limited company
("Seller"), to Xxxx Xxxxx pursuant to the Stock Purchase and Sale Agreement
dated as of __________ ___, 2003 between Xxxx Xxxxx and Seller (the
"Agreement"), hereby certifies to Xxxxxxxx Xxxxxxxxx Professional Corporation
("BIPC"), upon which certification BIPC may rely in delivering an opinion, as
follows:
1. Xxxx Xxxxx has not and to its knowledge, no other person or entity,
including the Seller or the Company or any of their affiliates and
associates, has violated the restrictions set forth in Rule 502(c)(1)
under the Securities Act as it relates to the transfer of the Shares
contemplated by the Agreement;
2. Except for sales or transfers to the Company as contemplated by the
Stock Repurchase Option Agreement between Xxxx Xxxxx and the Company,
dated the date hereof (the "Option Agreement"), Xxxx Xxxxx is not
purchasing the Shares from the Seller with a view to a distribution of
the Shares or of any other security of the Company, nor is it
participating or does it have a direct or indirect participation in any
such undertaking, nor is it participating or does it have a
participation in the direct or indirect underwriting of any such
undertaking. Xxxx Xxxxx understands and has represented to and agreed
with Seller that it may not effect a resale of the Shares except
pursuant to a registration statement declared effective under, or an
exemption from the registration requirements of, the Securities Act;
and
3. Except for sales or transfers to the Company pursuant to the Option
Agreement, Xxxx Xxxxx has not, and to its knowledge no other person or
entity has received, any commission or other consideration for the
transfer of the Shares by Seller to Xxxx Xxxxx which is or could
reasonably be characterized as a commission or discount such that such
party would be receiving consideration for placing or underwriting the
Shares.
All capitalized terms not otherwise defined or limited herein are used
as defined in the above-referenced opinion.
----------
(1) Defined to mean, neither the Company nor Xxxx Xxxxx (as it relates to
Paragraph 1 above) nor any person acting on their respective behalves shall
offer or sell (or has offered or sold) the securities by any form of general
solicitation or general advertising, including, but not limited to, the
following: (i) any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast over
television or radio; and (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising.
You may rely on this Certificate, and on the representations,
warranties and declarations by Xxxx Xxxxx in the Agreement, in delivering your
opinion and any other opinion or opinions delivered by you in connection with
the transactions contemplated by the Agreement.
[the remainder of this page intentionally left blank]
THE XXXX XXXXX
INVESTMENT CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT E
ANTI-DILUTION AGREEMENT
ANTI-DILUTION AGREEMENT
THIS ANTI-DILUTION AGREEMENT (the "Agreement") is dated as of August
__, 2003 and is by and among MINORPLANET SYSTEMS USA, INC., a Delaware
corporation (the "Company" or "MPUSA"), MINORPLANET SYSTEMS PLC, a United
Kingdom public limited company ("MPS UK").
WHEREAS, MPS UK and the Company are both parties to that certain Letter
Agreement, dated August ___, 2003, which contemplates the execution and delivery
of this Agreement by the parties hereto.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged (including, without limitation, the
entering into the Letter Agreement and that certain Variation Agreement to the
Exclusive License and Distribution Agreement, dated ________________, 2003, by
and between Minorplanet Limited and Minorplanet Systems USA Limited (each of
which are subsidiaries of MPS UK and the Company, respectively)), the parties
hereto hereby agree as follows:
SECTION 1. Additional Issuances.
(a) At any time after the date hereof, if the Company shall issue
or propose to issue any additional shares of the Company's common stock, par
value, $0.01 per share ("Common Stock"), or warrants, options (excluding any
options granted to employees of the Company in accordance with any employee
plans, now or hereinafter in effect) or other rights or instruments of any kind
convertible into or exercisable or exchangeable for shares of Common Stock (the
"Additional Securities"), MPS UK shall have the right to subscribe for and to
purchase at the same price per share that number of Additional Securities
necessary to maintain a Fully-Diluted Ownership Percentage (as defined herein
below) in the Company equal to the lesser of: (i) Fully-Diluted Ownership
Percentage of the Company on the date that a Subscription Notice (as defined
below) is delivered to MPS UK hereunder, and (ii) of 19.9% of the Company's
issued and outstanding Common Stock. Any offer of Additional Securities made to
MPS UK under this Section 1 shall be made by notice in writing (the
"Subscription Notice") at least 20 Business Days prior to the issuance of such
Additional Securities. The Subscription Notice shall set forth (i) the number of
Additional Securities proposed to be issued to any Person other than MPS UK and
the terms of such Additional Securities, (ii) the consideration (or manner of
determining the consideration), if any, for which such Additional Securities are
proposed to be issued and the terms of payment, (iii) the number of Additional
Securities offered to MPS UK in compliance with the provisions of this Section 1
and (iv) the proposed date of issuance of such Additional Securities. Not later
than 5 Business Days after delivery of a Subscription Notice in accordance with
the notice provisions hereof, MPS UK shall deliver a notification to the Company
in writing whether it elects to purchase all or any portion of the Additional
Securities offered to MPS UK, pursuant to the Subscription Notice; provided
however, that the failure of MPS UK to respond in writing within 5 Business Days
shall be deemed a waiver and negative
election by MPS UK to purchase any of the Additional Securities offered by such
Subscription Notice. If MPS UK elects to purchase any such Additional
Securities, the Additional Securities that it shall have elected to purchase
shall be issued and sold to MPS UK by the Company at the same time and on the
same terms and conditions as the Additional Securities are issued and sold to
third parties. If, for any reason, the issuance of Additional Securities to
third parties is not consummated, MPS UK's right to its share of such issuance
shall lapse, subject to MPS UK's ongoing subscription right with respect to
issuances of Additional Securities at later dates or times.
(b) The Company represents and covenants to MPS UK that (i) upon
issuance, all the shares of Additional Securities sold to MPS UK pursuant to
this Section 1 shall be duly authorized, validly issued, fully paid and
nonassessable and will be approved (if outstanding securities of the Company of
the same type are at the time already approved) for listing on the Nasdaq Stock
Market or for quotation or listing on the principal trading market for the
securities of the Company at the time of issuance, (ii) upon delivery of such
shares, they shall be free and clear of all liens, claims and encumbrances
(other than any restrictions imposed by applicable federal, state and foreign
securities laws (including, without limitations, the laws of the United Kingdom)
of any nature and shall not be subject to any preemptive right of any
stockholder of the Company and (iii) this Section 1 does not and upon the
issuance of such Additional Securities will not (a) violate or conflict with any
provision of the Certificate of Incorporation or Bylaws of MPUSA, each as
amended then to date (b) conflict with or constitute a violation by MPUSA of any
applicable law (including the General Corporation Law of Delaware), judgment,
order, injunction, decree, rule, regulation or ruling of any governmental
authority applicable to MPUSA the enforcement of which would have a material
adverse effect on MPUSA or on MPUSA's ability to perform its obligations
hereunder or the ability of MPUSA to consummate issuance of the Additional
Securities and (c) either alone or with the giving of notice or the passage of
time, or both, modify, violate, conflict with, constitute grounds for
termination of, or accelerate the performance required by, or result in a breach
or default of the terms, conditions or provisions of, or constitute a default
under any contract, agreement, note bond, mortgage, indenture, deed of trust,
license, franchise, permit, commitment, waiver, exemption, order, obligation,
lease, sublease, undertaking, agreement, offer or other instrument, which
violation, conflict, termination, acceleration, breach or default would have a
material adverse effect on MPUSA or on the ability of MPUSA to perform its
obligations hereunder or the ability of MPUSA to issue such shares.
(c) As used herein, the term "Business Day" shall mean any day
other than a Saturday, Sunday, U.S. national legal holiday, or a legal holiday
under the laws of the State of Delaware or the United Kingdom, and the term
"Person" shall mean an individual, corporation, partnership, joint venture,
joint stock company, association, trust, business trust, unincorporated
organization, government authority, or any other entity of whatever nature. As
used herein, the term "Fully-Diluted Ownership Percentage" shall mean the
percentage ownership calculated by dividing (i) the aggregate number of shares
of Common Stock (including any shares of Common Stock issuable upon exercise or
conversion of options, warrants or other securities or rights) beneficially
owned (as such term is determined in accordance with the Rule 13d-3 promulgated
under the Securities
-2-
Exchange Act of 1934, as amended) by the applicable Person or Persons, howsoever
and whenever acquired, by (ii) the aggregate number of all issued and
outstanding shares of Common Stock of the Company (including any shares of
Common Stock which are issuable upon exercise or conversion of options, warrants
or other securities or rights within 60 days of the date on which such
calculation is being made).
(d) Notwithstanding anything to the contrary contained herein, the
rights granted to MPS UK hereunder shall not apply to that certain stock option
repurchase agreement by and between the Company and Xxxx Xxxxx Investment
Corporation, dated August _____, 2003, and the Company may enter into, execute
and deliver said agreement and consummate the transactions thereby without
delivering any Subscription Notice or other notice to MPS UK.
(e) If the Company, at any time while this Agreement is in force
and effect, by reclassification of securities or otherwise (including, but not
limited to, a "reincorporation," merger with or into a wholly owned subsidiary
of the Company, an exchange or stock swap or another type of reorganization or
recapitalization), shall change or exchange its Common Stock into (or for)
different securities of another class or classes or ceases to have common stock,
then MPS UK's rights hereunder shall thereafter represent the right to acquire
such number and kind of securities as would have been issuable as the result of
such change with respect to the securities that were subject to the Agreement
immediately prior to such reclassification or other change. All such adjustments
shall be made so as to equitably adjust MPS UK's rights hereunder.
SECTION 2. Further Assurances. Each of the parties hereto agrees that,
at any time and from time to time after the date hereof, it shall, upon written
request from the other party hereto, and without further consideration, perform
such other and further acts, and execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered, such further instruments, documents and
assurances as such other party reasonably may request for the purpose of
carrying out this Agreement.
SECTION 3. Binding Agreement; Assignment. This Agreement is binding
upon, will inure to the benefit of, and be enforceable by, the parties hereto
and their respective heirs, successors and permitted assigns. Neither this
Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned, in whole or in part, by operation of law or otherwise by any
of the parties hereto, without the prior written consent of the other party
hereto.
SECTION 4. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matters hereof and thereof and supersedes any
and all prior negotiations, agreements, arrangements and understandings between
the parties, written or oral, relating to the matters provided for herein or
therein. Except as expressly provided in this Agreement, nothing contained in
this Agreement, express or implied, is intended to or shall confer on any Person
other than the parties hereto and their heirs, successors and permitted assigns,
any rights, benefits, remedies or claims under or by reason of this Agreement.
-3-
SECTION 5. Amendment; Modification. This Agreement may not be amended
or modified except by an instrument in writing signed by a duly authorized
officer of each of the Company and MPS UK.
SECTION 6. Extensions; Waivers; Remedies Cumulative.
(a) The conditions to each of the parties' obligations to
consummate this Agreement are for the sole benefit of such party and may be
waived by such party in whole or in part to the extent permitted by applicable
law. With regard to this Agreement, any party may (i) extend the time for the
performance of any of the obligations or other acts of any other party with such
first party, or (ii) waive compliance with any of the agreements of any party
with such first party or with any conditions to its own obligations. Any
agreement on the part of a party hereto to any such extension or waiver of any
provision of this Agreement shall be valid and effective only if set forth in an
instrument in writing signed on behalf of such party against whom enforcement of
any waiver or consent is sought by such first party or a duly authorized officer
thereof, if applicable.
(b) No failure or delay on the part of any party in exercising any
right, privilege, power, or remedy under this Agreement, and no course of
dealing among the parties, shall operate as a waiver of such right, privilege,
power, or remedy, nor shall any single or partial exercise of any right,
privilege, power, or remedy under this Agreement preclude any other or further
exercise of such right, privilege, power, or remedy, or the exercise of any
other right, privilege, power, or remedy. No notice to or demand on any party in
any case shall entitle such party to any other or further notice or demand in
any similar or other circumstances or constitute a waiver of the right of the
party giving such notice or making such demand to take any other or further
action in any circumstances without notice or demand.
SECTION 7. Section Headings; Interpretation. Reference in this
Agreement to a Section unless otherwise indicated, shall constitute references
to a Section or an Article of this Agreement. The section headings contained in
this Agreement are for convenience of reference only and do not form a part
thereof and shall not affect in any way the meaning or interpretation of this
Agreement. The parties hereto agree that this Agreement is the product of
negotiations among sophisticated parties, all of whom were represented by
counsel, and each of whom had an opportunity to participate in, and did
participate in the drafting of each provision hereto. Accordingly, ambiguities
in this Agreement, if any, shall not be construed strictly against any party
hereto but rather shall be given a fair and reasonable construction without
regard to the rule of contra proferentem.
SECTION 8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
agreements made and to be performed entirely within the State of Delaware
without giving effect to the laws that might otherwise govern under applicable
principles of conflict of laws thereof.
-4-
SECTION 9. Notices. Any notice, demand, claim, request, waiver or
consent or other communication required or permitted to be given under the
provisions of this Agreement shall be in writing and shall be deemed to have
been duly delivered if delivered by any of the following means of delivery, and
shall be deemed to have been duly delivered and received on the date (or the
next Business Day if delivery is not made on a Business Day) of personal
delivery or facsimile transmission or on the date (or the next Business Day if
delivery is not made on a Business Day) of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or on the date (or
the next Business Day if delivery is not made on a Business Day) of a stamped
receipt, if sent by an overnight delivery service, and sent to the following
addresses (or to such other address as any party may request, in the case of the
Company, by notifying MPS UK, and in the case of MPS UK, by notifying the
Company in each case in accordance with this Section):
(a) If to the Company:
Minorplanet Systems USA, Inc.
0000 Xxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: J. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Liddell & Xxxx LLP
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to MPS UK:
Minorplanet Systems PLC
Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx XX0 0XX
Xxxxxx Xxxxxxx
Attn: Xxxxxx Xxxxx
Telephone: 000 00 000 000 0000
Facsimile: 011 44 113 251 1672
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with a copy to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
One Oxford Centre
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SECTION 10. CONSENT TO JURISDICTION. EACH OF THE PARTIES AGREES TO
SUBMIT ITSELF TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE
STATE OF DELAWARE. IN ADDITION, EACH OF THE PARTIES HERETO AGREES THAT IT WILL
NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER
REQUEST FOR LEAVE FROM ANY SUCH COURT, AND THAT IT WILL NOT BRING ANY ACTION
RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT IN ANY COURT OTHER THAN SUCH COURT.
SECTION 11. Severability. The parties agree that (i) the provisions of
this Agreement shall be severable in the event that any of the provisions hereof
are held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, (ii) they shall negotiate in good faith to replace any provisions
that are finally determined to be invalid, void or otherwise unenforceable with
other provisions that are as similar as possible in terms to such invalid, void
or otherwise unenforceable provisions but are valid and enforceable, and (iii)
the balance of this Agreement shall not be affected and shall remain enforceable
to the fullest extent permitted by law. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be valid and shall be
enforced to the fullest extent permitted by law.
SECTION 12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered shall be deemed an
original, and all of which when taken together shall be considered one and the
same instrument, and this Agreement shall become effective when such
counterparts have been signed by each of the parties hereto and delivered to the
other parties. The parties hereto agree that signatures of the parties and their
duly authorized officers may be exchanged by facsimile transmission, and that
such signatures shall be binding to the same extent, and have the same force and
effect, as the exchange of original written signatures. The originals of such
signatures shall be sent to the other parties hereto by overnight courier.
(SIGNATURE PAGE FOLLOWS)
-6-
This Agreement has been duly executed by an authorized officer by each
of the following parties as of the date first set forth above.
MINORPLANET SYSTEMS USA, INC.
By:
_________________________________
Name: _______________________
Title: ______________________
MINORPLANET SYSTEMS PLC
By:
_________________________________
Name: _______________________
Title: ______________________
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