Exhibit 4.6
AMENDED AND RESTATED
AGREEMENT REGARDING REGISTRATION OF SHARES
This AMENDED AND RESTATED AGREEMENT REGARDING REGISTRATION OF SHARES
("AGREEMENT") is made as of August 4, 2004 by and between NAVTEQ Corporation
("COMPANY") and NavPart I B.V. ("STOCKHOLDER").
WHEREAS, on April 20, 2004, the Company has filed a registration
statement on Form S-1 (as amended, "REGISTRATION STATEMENT") with the Securities
and Exchange Commission under the Securities Act of 1933, as amended ("ACT"), to
register the offer and sale of certain shares of the Company's common stock,
$0.001 par value, held by Philips Consumer Electronic Services B.V. ("PHILIPS")
pursuant to a firm commitment underwritten public offering ("OFFERING"); and
WHEREAS, the Stockholder has requested that the Company register the
offer and sale under the Act certain shares of the Company's common stock it
holds ("STOCKHOLDER SHARES") by including such shares in the Registration
Statement; and
WHEREAS, the Company has indicated its willingness to include such
Stockholder Shares in the Registration Statement, and on May 17, 2004, the
Company and Stockholder entered into an Agreement Regarding Registration of
Shares ("Original Agreement"); and
WHEREAS, since the date of the Original Agreement certain events have
occurred that all parties agree require an amendment of the terms and conditions
specified in the Original Agreement;.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. AGREEMENT TO REGISTER SHARES. Subject to the conditions set forth
herein, the Company agrees to use its commercially reasonable efforts to
register the Stockholder Shares by including such shares in the Registration
Statement. The number of Stockholder Shares to be registered will be determined
through consultation with Credit Suisse First Boston LLC and Xxxxxxx Xxxxx &
Co., the Underwriters of the Offering. Such number of shares may be increased or
decreased at any time prior to the completion of the Offering in the sole
discretion of the Underwriters.
2. CONDITIONS TO COMPANY'S OBLIGATION. In addition to the condition set
forth in Section 5 below, the obligations of the Company to include the
Stockholder Shares in the Registration Statement are expressly subject to the
following conditions:
(a) the Stockholder shall become a party to the Underwriting
Agreement between the Company, the Underwriters, Philips and the Stockholder;
(b) the Stockholder cooperates with the Company and the Underwriters
as requested by the Company and/or Underwriters in connection with the
Registration Statement and the Offering, including, without limitation,
providing such information as is requested by them for
inclusion in the Registration Statement and executing such agreements,
acknowledgments and certificates as are customary in transactions of this type;
(c) Philips consents to the inclusion of the Stockholder Shares in
the Registration Statement; and
(d) the Registration Statement is not withdrawn and/or the Offering
is not completed for any reason.
3. FEES AND EXPENSES. The Company shall be responsible for the Securities
and Exchange Commission, National Association of Securities Dealers, Inc., New
York Stock Exchange and "blue sky" law registration, qualification and
compliance fees and expenses in connection with the registration of the
Stockholder Shares. The Selling Stockholder shall be responsible for all
underwriting discounts, selling commissions and transfer taxes, if any,
applicable to the sale of the Stockholder Shares., and the fees and expenses of
its counsel.
4. NO OTHER REGISTRATION RIGHTS. The Stockholder acknowledges and agrees
that the Company's agreement to register the Stockholder Shares pursuant to this
Agreement does not create any further right of Stockholder to have any of its
shares registered in any subsequent registration of the offer and sale of
Company securities under the Act (whether in an offering by the Company or for
the account of any Company securityholder). The Stockholder further acknowledges
and agrees that nothing in this Agreement is intended to make the Stockholder a
party to or confer upon such Stockholder any rights set forth in that certain
Registration Rights Agreement dated as of March 29, 2001 by and between the
Company and Philips.
5. AGREEMENT OF UNDERWRITERS. The obligations of the Company and the
rights of the Stockholder under this Agreement are expressly conditioned on the
consent and agreement of the Underwriters to include the Stockholder Shares in
the Offering. In the event that the Underwriters determine, in their sole
discretion, not to include the Stockholder Shares in the Offering, the Company's
obligations under this Agreement shall cease and be of no further force or
effect.
6. REASONABLE INVESTIGATION. In connection with the preparation and filing
of the Registration Statement and the completion of the Offering, the Company
will provide the Stockholder reasonable and customary access to the Company's
books and records and such opportunities to discuss the business of the Company
with its officers as shall be reasonably necessary to conduct a reasonable
investigation within the meaning of the Act.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF STOCKHOLDER. This
Agreement has been duly authorized, executed and delivered by or on behalf of
Stockholder. Stockholder has, and at the closing of the Offering will have,
valid title to the Stockholder Shares free and clear of all security interests,
claims, liens, equities or other encumbrances and the legal right and power, and
all authorization and approval required by law, to enter into this Agreement and
to sell, transfer and deliver the Stockholder Shares.
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8. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall indemnify and
hold harmless Stockholder, and its officers and directors and each Person who
controls Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each such person being sometimes referred to as
an "INDEMNIFIED PERSON") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any Prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or Prospectus, or amendment
or supplement, in reliance upon and in conformity with information furnished to
the Company by Stockholder.
(b) INDEMNIFICATION BY STOCKHOLDER. Stockholder agrees to (i)
indemnify and hold harmless the Company, and its directors and officers who sign
the Registration Statement and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any losses, claims, damages or liabilities to which
the Company or such other persons may become subject, under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus, or any amendment or supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information furnished to the Company by
Stockholder, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 8, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
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thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 8 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) CONTRIBUTION. If the indemnification provided for in this Section
8 is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim to the extent such fees or
expenses were incurred prior to an indemnifying party's election to assume the
defense of such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) LIMITATION. Notwithstanding any other provision of this Section
8, in no event will Stockholder be required to undertake liability to any Person
under this Section 8 for any amounts in excess of the dollar amount of the
proceeds to be received by Stockholder from the sale of Stockholder Shares in
the Offering.
(f) NON-EXCLUSIVE REMEDY. The obligations of the Company under this
Section 8 shall be in addition to any liability which the Company may otherwise
have to any Indemnified Person and the obligations of any Indemnified Person
under this Section 8 shall be in addition to any liability which such
Indemnified Person may otherwise have to the Company. The remedies
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provided in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to an indemnified party at law or in
equity.
9. NON-TRANSFERABILITY. The rights and obligations of the Stockholder
under this Agreement may not be transferred or assigned without the written
agreement of the Company.
10. GOVERNING LAW. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the laws of
the state of Delaware, but not including the choice of law rules thereof.
11. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement of the parties with regard to the subject matters
described herein and supersedes and any and all prior agreements and
understandings between the parties with regard to the subject matters described
herein. This Agreement may be amended or modified only by written agreement of
the parties.
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK - SIGNATURE PAGE FOLLOWS]
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[signature page - Agreement Regarding Registration Of Shares]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
COMPANY:
NAVTEQ Corporation
By:
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Xxxxxxxx X. Xxxxxx
Vice President and General Counsel
STOCKHOLDER:
NavPart I B.V.
By:
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Name: Xxxx-Xxx van Ommeren
Title: Director
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