STOCK PURCHASE AGREEMENT
BY AND AMONG
CELLNET DATA SYSTEMS, INC.
AND
NORTHERN STATES POWER COMPANY
DATED AS OF SEPTEMBER 6, 1996
TABLE OF CONTENTS
PAGE
SECTION 1. PURCHASE AND SALE OF SHARES. . . . . . . . . . . . . . . . . . . 1
1.1 Authorization of Shares. . . . . . . . . . . . . . . . . . . . . 1
1.2 Sale of the Shares . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. OTHER AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Restrictions on Transfer of Common Stock . . . . . . . . . . . . 4
2.2 Future Public Offerings. . . . . . . . . . . . . . . . . . . . . 5
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . . . . . . . 5
3.1 Organization, Good Standing and Qualification. . . . . . . . . . 5
3.2 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 No Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.4 Governmental Consents. . . . . . . . . . . . . . . . . . . . . . 6
3.5 Final Prospectus . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. . . . . . . . . 6
4.1 Purchase of Securities . . . . . . . . . . . . . . . . . . . . . 6
4.2 Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.3 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Investment Experience. . . . . . . . . . . . . . . . . . . . . . 7
4.5 Accredited Investor. . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Restricted Securities; Rule 144. . . . . . . . . . . . . . . . . 7
4.7 Access to Data . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5. CONDITIONS TO THE PURCHASER'S OBLIGATIONS. . . . . . . . . . . . 8
5.1 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Representations and Warranties . . . . . . . . . . . . . . . . . 8
5.3 Compliance with this Agreement . . . . . . . . . . . . . . . . . 8
5.4 Legal Investment . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 Securities Law Compliance. . . . . . . . . . . . . . . . . . . . 8
5.6 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 6. CONDITIONS TO THE COMPANY'S OBLIGATIONS. . . . . . . . . . . . . 9
6.1 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Representations and Warranties . . . . . . . . . . . . . . . . . 9
6.3 Compliance with this Agreement . . . . . . . . . . . . . . . . . 9
6.4 Legal Investment . . . . . . . . . . . . . . . . . . . . . . . . 9
6.5 Securities Law Compliance. . . . . . . . . . . . . . . . . . . . 9
6.6 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7. REGISTRATION RIGHTS. . . . . . . . . . . . . . . . . . . . . . .10
7.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . .10
7.2 Registration Procedures and Expenses . . . . . . . . . . . . . .10
7.3 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . .11
7.4 Information Available. . . . . . . . . . . . . . . . . . . . . .12
7.5 Rule 144 Reporting . . . . . . . . . . . . . . . . . . . . . . .12
7.6 Temporary Cessation of Offers and Sales by Purchaser . . . . . .13
7.7 Transfer of Shares After Registration. . . . . . . . . . . . . .13
7.8 Termination of Obligations . . . . . . . . . . . . . . . . . . .13
SECTION 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . .14
8.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
8.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . .14
8.3 Entire Agreement; Amendment. . . . . . . . . . . . . . . . . . .14
8.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . .15
8.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . .15
8.6 Survival of Representations and Warranties . . . . . . . . . . .15
8.7 Termination or Modification of Agreement . . . . . . . . . . . .15
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "AGREEMENT") is made as of September
6, 1996, by and among CellNet Data Systems, Inc., a Delaware corporation
(the "COMPANY") and Northern States Power Company, a Minnesota corporation
(the "PURCHASER").
WHEREAS, the Company and Purchaser have entered into the CellNet MSP and
NSP Data Services Agreement dated as of August 30, 1996, providing for at least
1,000,000 meters (the "Data Services Agreement");
WHEREAS, the Company has determined that it is in the best interests of the
Company and its stockholders for the Purchaser to make the investment in the
Company provided for, and on the terms and conditions set forth, in this
Agreement; and
WHEREAS, the Purchaser desires to make such investment on such terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained, the Company and the Purchaser hereby agree as
follows:
SECTION 1. PURCHASE AND SALE OF SHARES
1.1 AUTHORIZATION OF SHARES. The Company has authorized the issuance
of shares of its Common Stock, par value $.001 per share (the "SHARES")
sufficient to meet the purposes of Section 1.2.
1.2 SALE OF THE SHARES. Subject to the terms and conditions hereof,
the Company will issue and sell to the Purchaser, and the Purchaser will
purchase from the Company, at the Closing, a number of Shares pursuant to the
calculations and conditions listed in Section 1.2(b) below.
(a) DEFINITIONS.
(i) PURCHASE PRICE. The aggregate purchase price paid by the
Purchaser (the "Aggregate Purchase Price" or "APP") for the Shares shall be
equal to $15,000,000, provided the Aggregate Purchase Price shall be reduced
if, and only to the extent necessary, so that the number of shares (including
the Escrow Shares as defined below) purchased does not equal or exceed five
percent (5%) of the outstanding voting securities of the Company.
(ii) FORMULA. In Section 1.2(b) a formula is used to
determine the number of Shares sold to the Purchaser for the Aggregate
Purchase Price, and of these Shares, the number of Shares placed in escrow
(the "Escrow Shares"), and the number of Escrow Shares to be released from
escrow. The formula is: the number of Shares equals a quotient where the
numerator is
the Aggregate Purchase Price and the denominator is the Offering
Price Per Share of the Company's Common Stock at the Initial Public Offering
(the "Offering Price" or "OP") multiplied by an Adjustment Factor ( the
"Adjustment Factor" or "AF")). Algebraically: number of Shares = APP/(OP*AF).
(iii) ESCROW SHARES. The escrow shares are the number of
Shares determined by Section 1.2(b)(i) that will be placed in escrow and held
by the Company as Escrow Agent. The Escrow Shares placed in escrow will be
governed by this Agreement and an Escrow Agreement (the "Escrow Agreement").
(iv) CONDITION (A). Condition (A) is satisfied if the
Purchaser provides to the Company by September 16, 1996, a letter of intent
signed with Wisconsin Electric Power Company ("WEPCO") or a Controlled
Corporation (as defined in Section 2.1(c) herein) of WEPCO to enter into a
services agreement for at least 750,000 meters with meter routes with an
average density of at least 250 meters per square mile. The Company has the
sole right exercisable in its sole discretion to extend the completion of
Condition (A) after September 16, 1996, through a written notice to the
Purchaser.
(v) CONDITION (B). Condition (B) is satisfied if the
Purchaser provides to the Company by December 31, 1997, a services agreement
signed with WEPCO for at least 750,000 meters with meter routes with an
average density of at least 250 meters per square mile.
(vi) OFFERING PRICE PER SHARE. The Offering Price Per Share
shall be the price at which the Company's Common Stock is sold to the public
in the Initial Public Offering.
(vii) INITIAL PUBLIC OFFERING means the sale of Common Stock
by the Company to the public in a firm commitment underwriting pursuant to an
effective registration statement filed with the Securities and Exchange
Commission (the "SEC").
(b) SHARES PURCHASED AND ESCROW OF SHARES.
(i) Purchaser will purchase from Company a number of Shares
equal to the number of Shares determined by the Formula where the AF equals
.80. The Company shall deliver to Purchaser at the Closing a stock
certificate for the number of Shares as so determined less the number of the
Escrow Shares. The number of Escrow Shares will equal the number of Shares
computed when using the Formula where AF equals .80, minus the number of
Shares computed when using the Formula where AF equals .90. The Company
shall deliver a stock certificate for the Escrow Shares to the Escrow Agent
at the Closing.
(ii) If Condition (A) is satisfied by September 16, 1996 (or
such later date as the Company permits), the number of Escrow Shares released
from escrow to the Purchaser will equal the number of Shares computed when
using the Formula where AF equals .85, minus the number of Shares computed
when using the Formula where AF equals .90.
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(iii) If Condition (A) is satisfied and Condition (B) is
satisfied by December 31, 1997, the remaining Escrow Shares shall be released
from escrow to the Purchaser.
(iv) If Condition (A) is not satisfied and Condition (B) is
satisfied by December 31, 1997, the number of Escrow Shares released from
escrow to the Purchaser will equal the number of Shares computed when using
the Formula where AF equals .85, minus the number of Shares computed when
using the Formula where AF equals .90.
(v) If Condition (A) is not satisfied by September 16, 1996
(or such later date as the Company permits), the number of Escrow Shares
released from escrow to the Company and cancelled will equal the number of
Shares computed when using the Formula where AF equals .80, minus the number
of Shares computed when using the Formula where AF equals .85.
(vi) If Condition (A) is not satisfied by September 16, 1996
(or such later date as the Company permits) and Condition (B) is not
satisfied by December 31, 1997 (or such later date as the Company permits),
all Escrow Shares shall be released from escrow to the Company and cancelled.
(vii) If Condition (A) is satisfied and Condition (B) is not
satisfied by December 31, 1997, (or such later date as the Company permits),
all remaining Escrow Shares shall be released from escrow to the Company and
cancelled.
(viii) The number of shares shall be rounded to the nearest
whole share as necessary.
1.3 CLOSING.
(a) The purchase and sale of the Shares shall take place at a
closing (the "CLOSING") to be held at the offices of Wilson, Sonsini,
Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000-0000, concurrent
with the closing of the Company's Initial Public Offering (the "CLOSING
DATE"), or at such other place as the Purchaser and the Company shall agree.
This Agreement shall terminate and be of no further force and effect if the
closing of the Initial Public Offering does not occur on or before June 30,
1997.
(b) On the Closing Date, subject to the conditions stated herein,
the Company will deliver to the Purchaser and the Escrow Agent stock
certificates representing the number of Shares to be purchased by such
Purchaser as provided in Section 1.2(b)(i) against payment to the Company by
certified check or wire transfer of the purchase price therefor in federal or
other immediately available funds.
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SECTION 2. OTHER AGREEMENTS
1.4 RESTRICTIONS ON TRANSFER OF COMMON STOCK.
(a) The Purchaser shall not, directly or indirectly, sell or
transfer any Common Stock purchased under this Agreement for a period of two
years after the Closing Date except as permitted by and in accordance with
Section 2.1(b)and Section 2.1(c).
(b) Notwithstanding Section 2.1(a), one year after the Closing Date
Agreement, Purchaser shall be able to, directly or indirectly, sell or transfer
one-half of the Common Stock received on the Closing Date, including one-half of
any Escrow Shares released to Purchaser.
(c) Notwithstanding Section 2.1(a), the Purchaser shall be able to
sell or transfer any Common Stock purchased under this Agreement at any time
(i) to the Company or any person or group approved by the Company (such
approval to be granted or withheld in its sole discretion); or (ii) to a
corporation of which the Purchaser owns not less than 80% of the voting power
entitled to be cast in the election of the Purchaser's directors or a
corporation which owns directly or indirectly not less than 80% of the voting
power entitled to be cast in the election of the Purchaser's directors or a
corporation which directly or indirectly is under common control with the
Purchaser through the ownership of not less then 80% of the voting power
entitled to be cast in the election of directors of the affiliated
corporation (any of such corporation being referred to as a "Controlled
Corporation"), so long as such Controlled Corporation agrees to hold such
Common Stock subject to all the provisions of this Agreement, and agrees to
transfer such Common Stock to the Purchaser or another Controlled Corporation
of the Purchaser if it ceases to be a Controlled Corporation of the
Purchaser; or (iii) in response to (1) an offer to purchase or exchange for
cash or other consideration any Common Stock (a) which is made by or on
behalf of the Company, or (b) which is made by another person or group and is
not opposed by the Board of Directors of the Company within the time such
Board is required, pursuant to regulations under the Securities Exchange Act
of 1934, to advise the Company's stockholders of such Board's position on
such offer, or (2) any other offer made by another person or group to
purchase or exchange for cash or other consideration any Common Stock which,
if successful, would result in such person or group owning or having the
right to acquire Common Stock representing more than 40% of the total Common
Stock of the Company then outstanding; or (iv) pursuant to a bona fide pledge
of such Common Stock to an institutional lender to secure a loan, guarantee
or other financial support, provided that such lender agrees to hold such
Common Stock subject to all provisions of this Agreement and any sale or
disposition by such lender of such pledged Common Stock shall be subject to
the limitations of this Section 2.1; or (v) in the event of a merger or
consolidation in which the holders of Common Stock of the Company prior to
the merger or consolidation cease to hold, directly or indirectly, at least
51% of the Common Stock of the surviving entity, or (vi) pursuant to a plan
of liquidation of the Company. Notwithstanding Section 2.1(a) and subject to
compliance with all securities laws applicable to restricted securities,
Purchaser shall be entitled to sell or transfer not more than one-half of the
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Common Stock received on the Closing Date, including one-half of the Escrow
Shares, to WEPCO or a Controlled Corporation (as defined above substituting
WEPCO for Purchaser in such definition) of WEPCO.
2.2 FUTURE PUBLIC OFFERINGS. Purchaser will have the right to
participate in future public offerings of newly issued Common Stock by the
Company within two years after the Closing Date. Purchaser shall be entitled
to purchase a percentage of the shares issued in the new offering determined
by dividing (A) the number of Shares of Common Stock acquired by Purchaser
pursuant to this Agreement and owned on the date of such public offering by
(B) the number of shares of Common Stock of the Company outstanding on such
date, before giving effect to the shares to be issued in such public
offering. Notwithstanding the foregoing, if Purchaser has acquired additional
shares of Common Stock of the Company not pursuant to this Agreement, then
Purchaser may not acquire shares of Common Stock from the Company in the new
offering to the extent the percentage ownership held by the Purchaser of the
Company's Common Stock outstanding after such new offering exceeds such
percentage ownership held by Purchaser immediately after the Initial Public
Offering (giving effect to any Escrow Shares released to Purchaser). Such
participation by the Purchaser will be on the same terms and conditions as
the public investors and the shares shall be purchased from the underwriters.
The Company shall notify Purchaser in writing promptly after any filing
with the SEC for any such offering and Purchaser will advise the Company
promptly in light of the proposed schedule of the offering of Purchaser's
election whether or not to participate.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser that:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite power and authority to carry on
its business as now conducted and as proposed to be conducted in the future.
The Company is duly qualified to transact business and is in good standing in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on its business or properties.
3.2 AUTHORIZATION. The Company has all corporate right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All corporate action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement and the issuance of the Shares and (ii)
the performance of all obligations of the Company hereunder has been taken.
This Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and rules of law governing specific performance, injunctive
relief and other equitable remedies and to
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limitations of public policy as they may apply to the indemnification
provisions set forth in Section 7.3 of this Agreement. Upon their issuance
and delivery pursuant to this Agreement, the Shares will be validly issued,
fully paid and nonassessable and will be free of any liens or encumbrances;
provided, however, that the Shares are subject to restrictions on transfer
under state and/or federal securities laws. The issuance and sale of the
Shares will not give rise to any preemptive right or right of first refusal
or right of participation on behalf of any person.
3.3 NO CONFLICT. The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both), or give rise to a right of termination, cancellation or
acceleration of any obligation or to a loss of a material benefit, under, any
provision of the Restated Certificate of Incorporation or Bylaws of the Company
or any material mortgage, indenture, lease or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to the Company, its properties or
assets.
3.4 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, local or provincial governmental authority on the part of the
Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for any post-sale filings pursuant to
applicable state securities laws, which filings will be effected within the
applicable time periods. The offer and sale of the Shares pursuant to the terms
of this Agreement are exempt from the registration requirements of Section 5 of
the Securities Act of 1933, as amended (the "SECURITIES ACT").
3.5 FINAL PROSPECTUS. The Company's Prospectus for the Initial Public
Offering as filed with the Securities and Exchange Commission pursuant to
Rule 424 shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants that:
4.1 PURCHASE OF SECURITIES. The Purchaser is purchasing the Shares for
investment for its own account, not as nominee or agent, and not with a view to
the distribution or resale thereof, subject, nevertheless, to any requirement of
law that the disposition of its property shall be at all times within its
control. The Purchaser will not, in any event, make any sale or other
disposition of such securities in contravention of the Securities Act and the
rules and regulations of the Securities and Exchange Commission thereunder.
4.2 LEGENDS. The Purchaser understands that the certificates evidencing
the Shares shall bear legends in the following form:
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"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK
PURCHASE AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A COPY OF WHICH MAY BE
OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES."
4.3 AUTHORIZATION. The Purchaser has all corporate right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. All corporate action on the part of the Purchaser, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement and (ii) the performance of all
obligations of the Purchaser hereunder has been taken. This Agreement has been
duly executed and delivered by the Purchaser and constitutes the valid and
legally binding obligation of the Purchaser, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and rules of
law governing specific performance, injunctive relief and other equitable
remedies and to limitations of public policy as they may apply to the
indemnification provisions set forth in Section 7.3 of this Agreement.
4.4 INVESTMENT EXPERIENCE. The Purchaser acknowledges that it can bear
the economic risk of its investment, including a complete loss of its
investment, and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Shares. The Purchaser also represents that it has not been organized
solely for the purpose of acquiring the Shares. The Purchaser understands that
the Shares have not been registered under the Securities Act or under the
securities laws of any jurisdiction by reason of reliance upon certain
exemptions, and that the reliance of the Company on such exemptions is
predicated upon the accuracy of the Purchaser' representations and warranties in
this Section 4.
4.5 ACCREDITED INVESTOR. The Purchaser is an "accredited investor" as
defined in Rule 501 of Regulation D under the Securities Act.
4.6 RESTRICTED SECURITIES; RULE 144. The Purchaser understands that the
Shares and the Common Shares issuable upon conversion thereof are characterized
as "restricted securities" under the federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations the Shares may be
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resold without registration under the Securities Act only in certain limited
circumstances. The Purchaser acknowledges that the Shares must be held
indefinitely unless subsequently registered under the Securities Act or an
exemption from such registration is available. The Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act which permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than two (2) years after a
party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and the number of shares being sold
during any three (3) month period not exceeding specified limitations.
4.7 ACCESS TO DATA. The Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the Company's
management and obtain all information regarding the Company which Purchaser has
required in determining to purchase the Shares.
SECTION 5. CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The following conditions to the Purchaser' obligations must be satisfied on
the Closing Date:
5.1 OPINION OF COUNSEL. The Purchaser shall have received from Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Company, an opinion that (i) the
Shares purchased by such Purchaser have been duly authorized and upon payment of
the consideration as provided in this Agreement, will be validly issued, fully
paid and nonassessable, (ii) the Agreement has been duly authorized, executed
and delivered by the Company, and (iii) the issuance of the Shares pursuant to
the terms of the Agreement will not be required to be registered under the
Securities Act.
5.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 3 shall be true in all material respects on the Closing
Date with the same effect as though made on and as of that date.
5.3 COMPLIANCE WITH THIS AGREEMENT. The Company shall have performed and
complied with all agreements and conditions contained in this Agreement which
are required to be performed or complied with by the Company on or before the
Closing Date.
5.4 LEGAL INVESTMENT. On the Closing Date, the purchase of the Shares by
the Purchaser shall be legally permitted by all laws and regulations to which
the Company and the Purchaser are subject.
5.5 SECURITIES LAW COMPLIANCE. All actions and steps necessary to assure
compliance with applicable federal and state securities laws, including all
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body in any states where the Shares are being sold
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that are required in connection with the lawful issuance and sale of the
Shares pursuant to this Agreement shall have been duly obtained and shall be
effective on the Closing Date except for any such filings as may under
applicable law be made subsequent to the Closing Date, which filings the
Company agrees it will make in a timely manner.
5.6 CONSENTS. All material consents, approvals and authorizations, and
all material filings with and notifications of governmental authorities and
regulatory agencies or other entities which regulate the business of the
Company, necessary on the part of the Company to the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
shall have been obtained or effected.
SECTION 6. CONDITIONS TO THE COMPANY'S OBLIGATIONS
The following conditions to the Company's obligations must be satisfied on
the Closing Date:
6.1 OPINION OF COUNSEL. The Company shall have received from counsel to
the Purchaser an opinion that the Agreement has been duly authorized, executed
and delivered by the Purchaser.
6.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 4 shall be true in all material respects on the Closing
Date with the same effect as though made on and as of that date.
6.3 COMPLIANCE WITH THIS AGREEMENT. The Purchaser shall have performed
and complied with all agreements and conditions contained in the Agreement which
are required to be performed or complied with by the Purchaser on or before the
Closing Date.
6.4 LEGAL INVESTMENT. On the Closing Date, the purchase of the Shares by
the Purchaser shall be legally permitted by all laws and regulations to which
the Company and the Purchaser are subject.
6.5 SECURITIES LAW COMPLIANCE. All actions and steps necessary to assure
compliance with applicable federal and state securities laws, including all
authorizations, approvals or permits, if any, of any governmental authority or
regulatory body in any states where the Shares are being sold that are required
in connection with the lawful issuance and sale of the Shares pursuant to this
Agreement shall have been duly obtained and shall be effective on the Closing
Date except for any such filings as may under applicable law be made subsequent
to the Closing Date, which filings the Company agrees it will make in a timely
manner.
6.6 CONSENTS. All material consents, approvals and authorizations, and
all material filings with and notifications of governmental authorities and
regulatory agencies or other entities which regulate the business of the
Company, necessary on the part of the Company to the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
shall have been obtained or effected.
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SECTION 7. REGISTRATION RIGHTS
7.1 DEFINITIONS. For the purpose of this Section 7:
(a) the term "Registration Statement" shall mean any registration
statement required to be filed by Section 7.2 below, and shall include any
preliminary prospectus, final prospectus, exhibit or amendment included in or
relating to such registration statement; and
(b) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission to state in
the Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
7.2 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) promptly upon written notice from Purchaser delivered to the
Company at any time after ten months from the Closing Date file with the SEC
a registration statement under the Securities Act on a form which is
appropriate to register the re-sale of one-half of the Shares purchased by
Purchaser hereunder;
(b) use its best efforts, subject to receipt of necessary
information from the Purchaser, to cause such Registration Statement to
become effective as promptly as practicable but not earlier than on the date
one year from the Closing Date;
(c) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective until termination
of such obligation as provided in Section 7.8 below;
(d) furnish to the Purchaser with respect to the Shares registered on
the Registration Statement (and to each underwriter, if any, of such Shares)
such number of copies of prospectuses in conformity with the requirements of the
Securities Act as the Purchaser may reasonably request, in order to facilitate
the public sale or other disposition of the Shares by the Purchaser; provided,
however, that the obligation of the Company to deliver copies of prospectuses to
the Purchaser shall be subject to the receipt by the Company of reasonable
assurances from the Purchaser that the Purchaser will comply with the applicable
provisions of the Securities Act and of such other securities laws as may be
applicable in connection with any use of such prospectuses;
(e) file such documents as may be required of the Company for normal
securities law clearance for the resale of the Shares in such states of the
United States as may be reasonably requested by the Purchaser; provided,
however, that the Company shall not be required in connection with this
paragraph (e) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction; and
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(f) bear all expenses in connection with the procedures in
paragraphs (a) through (e) of this Section 7.2 and the registration of the
Shares on such Registration Statement and the satisfaction of the blue sky laws
of such states, excluding underwriting discounts and selling commissions, legal
or accounting expenses of Purchaser and expenses required by law to be borne by
Purchaser, all of which shall be borne by Purchaser.
7.3 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless Purchaser (and
each of its officers, directors, partners or persons, if any, who controls
Purchaser within the meaning of Section 15 of the Securities Act) from and
against any losses, claims, damages or liabilities to which Purchaser (and each
of its officers, directors, partners or persons, if any, who controls Purchaser
within the meaning of Section 15 of the Securities Act) may become subject
(under the Securities Act or otherwise) insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case on the effective date
thereof, or arise out of any failure by the Company to fulfill any undertaking
included in the Registration Statement, and the Company will, as incurred,
reimburse Purchaser (and each of its officers, directors, partners or persons,
if any, who controls Purchaser within the meaning of Section 15 of the
Securities Act) for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that such loss, claim, damage or liability arises out of, or is
based upon, an untrue statement or omission or alleged untrue statement or
omission made in such Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of Purchaser
specifically for use in preparation of the Registration Statement.
(b) Purchaser agrees to indemnify and hold harmless the Company
(and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company), from and against
any losses, claims, damages or liabilities to which the Company (or any such
officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or
are based upon, any untrue statement of a material fact contained in the
Registration Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in each case, on the effective date
thereof, if such untrue statement was made in reasonable reliance upon and in
conformity with written information furnished by or on behalf of Purchaser
specifically for use in preparation of the Registration Statement, and
Purchaser will, as incurred, reimburse the Company (or such officer, director
or controlling person) for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding
or claim; provided,
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however, that Purchaser shall in no event be liable for an amount in excess
of the proceeds actually received by Purchaser upon any sale of Shares by
Purchaser pursuant to the Registration Statement.
(c) Promptly after receipt by any indemnified person of a notice of a
claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying person pursuant to this Section 7.3, such
indemnified person shall notify the indemnifying person in writing of such claim
or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent that it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate in the reasonable judgment of the indemnified person for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities referred to above, then each applicable
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the parties
in connection with the statements or failures which resulted in such losses,
claims, damages or liabilities; provided that Purchaser shall not be required to
contribute an amount in excess of the proceeds actually received by the
Purchaser upon any sale of Shares pursuant to the Registration Statement.
7.4 INFORMATION AVAILABLE. So long as any registration statement is
effective covering the resale of Shares, the Company will furnish to Purchaser
as soon as practicable after available and upon request of Purchaser, one copy
of (i) its Annual Report to Stockholders (which Annual Report shall contain
financial statements audited in accordance with generally accepted accounting
principles in the United States of America by a national firm of certified
public accountants), (ii) if not included in substance in the Annual Report to
Stockholders, its annual report on Form 10-K, (iii) each of its Quarterly
Reports to Stockholders, and its quarterly report on Form 10-Q, and (iv) a full
copy of the registration statement covering the Shares (the foregoing, in each
case, excluding exhibits).
7.5 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC which may at any time permit the sale
of the Shares to the public without registration, the Company agrees to use its
best efforts to:
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(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date on which the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act; and
(b) Use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act.
7.6 TEMPORARY CESSATION OF OFFERS AND SALES BY PURCHASER. The Purchaser
acknowledges that there may occasionally be times when the Company may be
required to suspend the use of the prospectus forming part of the Registration
Statement until such time as an amendment to the Registration Statement has been
filed by the Company and declared effective by the Commission, until the
prospectus is supplemented or amended to comply with the Securities Act, or
until such time as the Company has filed an appropriate report with the
Commission pursuant to the Exchange Act. The Company agrees to file any
necessary amendments, supplements and reports as soon as practicable under the
circumstances. Purchaser hereby covenants that it will not sell any Shares
pursuant to said prospectus during a period of not more than 60 days commencing
at the time at which the Company gives the Purchaser notice of the suspension of
the use of said prospectus and ending at the time the Company gives the
Purchaser notice that the Purchaser may thereafter effect sales pursuant to said
prospectus, as the same may have been supplemented or amended provided the
Company may not suspend the use of such prospectus until at least 60 days has
elapsed since the previous suspension.
7.7 TRANSFER OF SHARES AFTER REGISTRATION. Purchaser hereby covenants
with the Company not to make any sale of the Shares except either (i) in
accordance with the Registration Statement, in which case Purchaser covenants to
comply with the requirement of delivering a current prospectus, or (ii) in
accordance with Rule 144, in which case Purchaser covenants to comply with Rule
144. Purchaser further acknowledges and agrees that such Shares are not
transferable on the books of the Company unless the certificate submitted to the
Company's transfer agent evidencing such Shares is accompanied by a certificate
executed by an officer of, or other person duly authorized by, Purchaser
certifying to such compliance.
7.8 TERMINATION OF OBLIGATIONS. The obligations of the Company pursuant
to Section 7.2 hereof shall cease and terminate upon the earlier to occur of (i)
such time as all of the Shares which have been registered have been resold or
(ii) such time as all of the Shares may be resold in any three-month period
pursuant to Rule 144 under the Securities Act or its successors. All
obligations of the Company in Section 7 shall cease and terminate upon the
earliest to occur of (i) such time as all of the Shares have been resold or
(ii) such time as all of the Shares may be resold under Rule 144(k) under the
Securities Act or its successor.
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SECTION 8. MISCELLANEOUS
8.1 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by certified or registered
mail, postage prepaid, delivered either by hand or by messenger, or transmitted
by electronic telecopy (fax) addressed:
(i) If to the Company, at:
CellNet Data Systems, Inc.
Attn: Xxxx Xxxxx
000 Xxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Fax: 415/
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Attn: Xxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax: 415/000-0000
(ii) If to Northern States Power Company:
Northern States Power Company
Attn: Chief Financial Officer
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Tel.: 612/000-0000
Fax: 612/000-0000
or at such other address as a party shall have furnished to the other parties in
writing. All such notices and other written communications shall be effective
(i) if mailed, seven days after mailing, (ii) if delivered, upon delivery, or
(iii) if faxed, one business day after transmission with telephone or fax
confirmation of receipt.
8.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, this Agreement shall inure to the benefit of and be binding upon the
successors, assigns, heirs, executors and administrators of each of the parties
hereto.
8.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with
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regard to the subjects hereof and thereof. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the Company and the Purchaser. Purchaser has no
obligation to invest in the Company other than the obligations contained in
this Agreement.
8.4 COUNTERPARTS. This Agreement may be executed by the several parties on
separate counterparts which, when taken together with counterparts signed by all
the other parties, shall
constitute a single fully executed Agreement which shall be as fully binding and
effective as a counterpart which has been executed by all parties.
8.5 GOVERNING LAW. This Agreement shall be deemed a contract made under
the laws of the State of California and together with the rights and obligations
of the parties hereunder, shall be construed under and governed by the laws of
the State of California.
8.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties set forth in Sections 3 and 4 shall survive the
execution and delivery of this Agreement and the issuance of the Shares.
8.7 TERMINATION OR MODIFICATION OF AGREEMENT.
(a) Notwithstanding anything contained herein this Agreement shall
be terminated and cancelled or modified as provided in Section 8.7(b) (i) if
the Company and the Purchaser do not enter into the PrimeNet License and
Services Agreement (the "PrimeNet Agreement") on or before November 15, 1996;
(ii) if the PrimeNet Agreement after being entered into is terminated or
cancelled for any reason; or (iii) if the Data Services Agreement is
terminated or cancelled for any reason.
(b) If any of the events in Section 8.7(a) occur, then as of the date
of such event, (i) if Purchaser has not purchased any Shares then all provisions
of this Agreement shall be immediately terminated and cancelled, (ii) if
Purchaser has purchased Shares and the event in Section 8.7(a) occurs prior to
release to Purchaser or the Company of all Escrow Shares under Section 1.2(b),
then all remaining Escrow Shares shall be released to the Company
notwithstanding the Purchaser's future satisfaction of Condition (A) and/or
Condition (B) and the provisions of Section 2.2 of this Agreement shall be
immediately terminated and cancelled, and (iii) if the event in
Section 8.7(a) occurs after release to Purchaser or the Company of all Escrow
Shares under Section 1.2(b), then the provisions of Section 2.2 of this
Agreement shall be immediately terminated and cancelled. Except as provided in
the preceding sentence, the remaining provisions of this Agreement shall
continue in full force and effect.
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IN WITNESS WHEREOF, the Company and the Purchaser have caused this
Agreement to be executed by their duly authorized officers as the date first
above written.
CELLNET DATA SYSTEMS, INC.
/s/ XXXXX X. XXXXX
------------------------------------
SIGNATURE
/s/ XXXXX X. XXXXX, VICE PRESIDENT
AND GENERAL COUNSEL
------------------------------------
NAME AND TITLE OF SIGNATORY
NORTHERN STATES POWER COMPANY
/s/ X. X. XXXXXXXX
------------------------------------
SIGNATURE
X. X. XXXXXXXX, VICE PRESIDENT & CFO
------------------------------------
NAME AND TITLE OF SIGNATORY
