Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of March 29, 2001, by and
between NAVIGATION TECHNOLOGIES CORPORATION, a corporation organized under the
laws of Delaware (the "Company") and PHILIPS CONSUMER ELECTRONIC SERVICES B.V.,
a corporation organized under the laws of The Netherlands ("Philips").
WHEREAS, on the date hereof, Philips and the Company have entered into
a certain stock purchase agreement (the "Stock Purchase Agreement");
WHEREAS, as a result of the transactions contemplated in the Stock
Purchase Agreement as well as other transactions consummated in the past between
Philips or its Affiliates and the Company, Philips will be the record or
beneficial holder of a majority of the Registrable Securities defined herein;
and
WHEREAS, in connection therewith, the Company has agreed to grant to
Philips the registration rights set forth below;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
SECTION 1
DEFINITIONS
Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Stock Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
"Agreement" means this Registration Rights Agreement, as amended,
supplemented or otherwise modified from time to time.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's common stock, par value $.001 per
share.
"Company" has the meaning set forth in the preamble and also includes
the Company's successors and permitted assigns.
"Initial Public Offering" means a firm commitment underwritten public
offering pursuant to an effective registration statement under the Securities
Act, covering the offer and sale to the public of Common Stock for the account
of the Company or shareholders of the
Company or both having an aggregate offering price to the public of not less
than $40,000,000 or, if such aggregate offering price is less, in which the
aggregate number of shares of common stock sold in the offering equal at least
twenty percent (20%) of the total number shares of Common Stock and Preferred
Stock outstanding (exclusive of treasury shares) immediately after the closing
of such offering.
"Other Securities" has the meaning set forth in Section 3.1.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Philips" has the meaning set forth in the preamble and also includes
Philips' Affiliates (other than the Company and its Affiliates), its successors
and permitted assigns.
"Preferred Stock" means the Company's preferred stock, par value $.001
per share.
"Prospectus" means the prospectus included in the Registration
Statement, including any preliminary prospectus, and any such prospectus as
supplemented by any prospectus supplement with respect to the terms of the
offering of any of the Registrable Securities, and by all other amendments and
supplements to such prospectus, and in each case including all documents
incorporated by reference therein.
"register", "registered", and "registration" refer to a registration of
Registrable Securities effected by preparing and filing a Registration Statement
in compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such Registration Statement.
"Registrable Securities" means any not previously registered Common
Stock outstanding and Common Stock issuable upon the exercise, conversion or
exercise and subsequent conversion of outstanding Preferred Stock, preferred
securities, options, warrants, debentures or any other convertible security,
including any securities initially issued in bearer form and constituting the
unsold allotment of a distributor (within the meaning of Regulation S under the
Securities Act) of such securities and later exchanged for securities in
registered form; provided, however, that a security ceases to be a Registrable
Security when it is no longer a Restricted Security.
"Registration Expenses" means all expenses incident to the registration
of Registrable Securities under this Agreement, including, without limitation,
all registration, filing and National Association of Securities Dealers, Inc.;
all fees and expenses of complying with state securities or blue sky laws; all
word processing, duplicating and printing expenses; messenger and delivery
expenses; the fees and disbursements of counsel for the Company and its
independent public accountants, including the expenses of any special audits or
"comfort" letters required by or incident to such registration, premiums and
other costs of policies of insurance obtained by the Company against liabilities
arising out of the public offering of
Registrable Securities being registered, any fees and disbursements of
underwriters, and any other registration expenses incident to the registration
of Registrable Securities, but excluding Selling Expenses.
"Registration Statement" means a registration statement filed under the
Securities Act providing for the registration of, and the sale by the holders
of, any Registrable Securities, filed by the Company pursuant to the provisions
of Section 2 or 3 of this Agreement, including any amendments and supplements to
such Registration Statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such Registration
Statement.
"Restricted Security" means any security or share of Common Stock,
including securities or shares of Common Stock issuable upon conversion thereof,
except any such security or share of Common Stock which (i) has been effectively
registered under the Securities Act and sold in a manner contemplated by the
Registration Statement, (ii) has been transferred in compliance with Rule 144
under the Securities Act (or any successor provision thereto) or is transferable
pursuant to paragraph (k) of such Rule 144 (or any successor provision thereto),
or (iii) has been sold in compliance with Regulation S under the Securities Act
(or any successor thereto) and does not constitute the unsold allotment of a
distributor within the meaning of Regulation S under the Securities Act.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and transfer taxes, if any, applicable to the sale of Registrable
Securities by Philips, and all fees and disbursements of counsel for Philips.
"Stock Purchase Agreement" has the meaning set forth in the Recitals.
"Suspension Event" has the meaning set forth in Section 2.2(c).
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Registration Statement.
SECTION 2
DEMAND REGISTRATION RIGHTS
2.1 Notice and Registration. Upon written notice from Philips provided
at any time after the earlier of the Company's Initial Public Offering or
October 1, 2002, requesting that the Company effect the registration under the
Securities Act of all or part of the Registrable Securities held by Philips,
which notice shall specify the intended method or methods of disposition of such
Registrable Securities (each such notice, a "Request"), the Company shall use
all commercially reasonable efforts to effect (at the earliest possible date)
the registration, under the Securities Act, of such Registrable Securities for
disposition in accordance with the intended method or methods of disposition
stated in such Request, provided that if the Company shall have previously
effected a registration with respect to Philips' Registrable Securities pursuant
to
Section 2 or 3 hereof, the Company shall not be required to effect a
registration for Philips' Registrable Securities pursuant to this Section 2
until a period of six months shall have elapsed from the effective date of the
most recent such previous registration. No registration of Registrable
Securities under this Section 2 shall relieve the Company of its obligation (if
any) to effect registrations of Registrable Securities pursuant to Section 3.
2.2 Limitations on Demand Registration Rights. (a) Philips' demand
registration rights pursuant to Section 2.1 may be exercised by Philips only on
five occasions. A request by Philips that the Company use all commercially
reasonable efforts to effect a registration shall not be considered a Request if
the Registration Statement relating thereto does not become effective.
(b) Each Request shall be with respect to a minimum of
25,000,000 shares of Common Stock (it being understood and agreed that
such number shall be adjusted from time to time so that it shall
represent no less than 5% (five percent) of the outstanding shares of
Common Stock of the Company at any time, taking into consideration the
occurrence of any stock splits, combinations, distributions of stock
dividends, issuances of rights or warrants, distributions of
indebtedness, securities or assets or any other changes that may alter
the current capitalization of the Company after the date hereof) or
shall have a proposed public offering price of at least $50,000,000.
(c) If, while a Request is pending pursuant to this Section 2,
the Company determines in the good faith judgment of the Board of
Directors of the Company, with the advice of counsel, that the filing
of a Registration Statement or the declaration of effectiveness (A)
would require the disclosure of non-public material information the
disclosure of which would have a material adverse effect on the Company
or would otherwise adversely affect a material financing, acquisition,
disposition, merger, reorganization or other comparable transaction
involving the Company, or (B) would otherwise adversely affect a public
offering of shares of Common Stock or other equity securities of the
Company for the account of the Company (provided that the Board of
Directors of the Company has previously authorized the Company to
proceed with such an offering and the Company is using its best efforts
to promptly complete such public offering)(such circumstances being
hereinafter referred to as a "Suspension Event"), the Company shall
deliver a certificate to such effect signed by its President or any
Vice President to Philips and Philips shall have the right (but not the
obligation) to withdraw such Request. Whether Philips withdraws such
Request or not, the Company shall not be required to effect a
registration pursuant to this Section 2 until (i) with respect to the
Suspension Event described in clause (A) above, the earlier of the date
upon which such material information is disclosed to the public or
ceases to be material or 120 days after the Company makes such good
faith determination, or (ii) with respect to the Suspension Event
described in clause (B) above, 120 days after the Company makes such
good faith determination; provided, however, that in no event shall
Suspension Events be permitted to take effect more than once in any
12-month period.
2.3 Registration Expenses. The Company shall pay all (and will promptly
reimburse to Philips to the extent it has borne any) all Registration Expenses
with respect to any registration of Registrable Securities pursuant to this
Section 2, regardless of whether the Registration Statement filed in connection
with such registration becomes effective. Philips shall pay all Selling Expenses
applicable to the sale of Registrable Securities by Philips.
SECTION 3
PIGGY-BACK REGISTRATION
3.1 Notice and Registration. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Registrable Securities ("Other Securities") for public
sale under the Securities Act (whether proposed to be offered for sale by the
Company or by any other Person) on a form and in a manner which would permit
registration of Registrable Securities for sale to the public under the
Securities Act, it will give prompt written notice to Philips of its intention
to do so, which notice Philips shall keep confidential, and upon the written
request of Philips delivered to the Company within fifteen (15) Business Days
after the giving of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by Philips and the intended
method of disposition thereof) the Company will use its commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by Philips, to the extent required
to permit the disposition (in accordance with the intended method or methods
thereof as aforesaid) of Registrable Securities so to be registered, provided
that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company may, at its election, give
written notice of such determination to Philips and thereupon the
Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such
Other Securities (but not from its obligation to pay Registration
Expenses to the extent incurred in connection therewith as provided in
Section 3.2), without prejudice, however, to the rights (if any) of
Philips immediately to request that such registration be effected as a
registration under Section 2;
(b) the Company will not be required to effect any
registration of Registrable Securities requested to be registered
pursuant to this Section 3 if the Company shall have been advised in
writing (with a copy to Philips) by a nationally recognized independent
investment banking firm selected by the Company to act as lead
underwriter in connection with the public offering of securities by the
Company that, in such firm's opinion, the registration of such
Registrable Securities at that time would adversely affect the
Company's own scheduled offering, provided, however, that if an
offering of some but not all of the shares requested to be registered
pursuant to this Section 3 would not
adversely affect the Company's offering, the aggregate number of shares
requested to be included in such offering by Philips shall be reduced
accordingly; and
(c) the Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental
to the registration of any of its securities (i) on Form S-8 or any
successor form to such Form or in connection with any employee or
director welfare, benefit or compensation plan, (ii) on Form S-4 or any
successor form to such Form or in connection with an exchange offer,
(iii) in connection with a rights offering exclusively to existing
holders of Common Stock, (iv) in connection with an offering solely to
employees of the Company or its subsidiaries, or (v) relating to a
transaction pursuant to Rule 145 of the Securities Act.
No registration of Registrable Securities effected under this Section 3 shall
relieve the Company of its obligation (if any) to effect registrations of
Registrable Securities pursuant to Section 2.
3.2 Registration Expenses. The Company shall pay all (and will promptly
reimburse to Philips to the extent it has borne any) all Registration Expenses
with respect to any registration of Registrable Securities pursuant to this
Section 3, regardless of whether the Registration Statement filed in connection
with such registration becomes effective. Philips shall pay all Selling Expenses
applicable to the sale of Registrable Securities by Philips.
SECTION 4
REGISTRATION PROCEDURES
4.1 Registration and Qualification. If and whenever the Company is
required to use all commercially reasonable efforts to effect the registration
of any Registrable Securities under the Securities Act as provided in Section 2
or 3, the Company will as promptly as is practicable:
(a) prepare, file and use all commercially reasonable efforts
to cause to become effective a Registration Statement under the
Securities Act regarding the Registrable Securities to be offered;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and Prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities until
the earlier of such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition
by Philips set forth in such Registration Statement or the expiration
of 180 days after such Registration Statement becomes effective;
(c) furnish to Philips and to any underwriter of such
Registrable Securities such number of conformed copies of such
Registration Statement and of each such
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the Prospectus included in such Registration
Statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such Registration Statement
or Prospectus, and such other documents as Philips or such underwriter
may reasonably request;
(d) use its commercially reasonable efforts to register or
qualify all Registrable Securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as Philips or any underwriter of such Registrable
Securities shall reasonably request, and do any and all other acts and
things which may be reasonably requested by Philips or any underwriter
to consummate the disposition in such jurisdictions of the Registrable
Securities covered by such Registration Statement, except the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it is not
so qualified, or to subject itself to taxation in any jurisdiction
where it is not then subject to taxation, or to consent to general
service of process in any jurisdiction where it is not then subject to
service of process;
(e) use all commercially reasonable efforts to list the
Registrable Securities on each national securities exchange on which
the Common Stock is then listed, if the listing of such securities is
then permitted under the rules of such exchange;
(f) (i) furnish to Philips an opinion of counsel for the
Company, addressed to it, dated the date of the closing under the
underwriting agreement, and (ii) use its commercially reasonable
efforts to furnish to Philips, addressed to it, a "comfort letter"
signed by the independent public accountants who have certified the
Company's financial statements included in such Registration Statement,
each such document covering substantially the same matters with respect
to such Registration Statement (and the Prospectus included therein)
and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of
securities and such other matters as Philips may reasonably request;
(g) immediately notify Philips at any time when a Prospectus
relating to a registration pursuant to Section 2 or 3 hereof is
required to be delivered under the Securities Act of the happening of
any event as a result of which the Prospectus included in such
Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state any 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,
and at the request of Philips prepare and furnish to Philips as many
copies of a supplement to or an amendment of such Prospectus as Philips
reasonably request so that, as thereafter delivered to the purchasers
of such Registrable Securities, such Prospectus shall not include 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 under which they were
made, not misleading; and
(h) immediately notify Philips of the issuance by the
Commission or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement filed pursuant
to Section 2 or 3 hereof or the initiation of any proceedings for that
purpose and take every reasonable effort to obtain the withdrawal of
any such stop order.
The Company may require Philips to furnish the Company such information
regarding Philips and the proposed method of distribution of their respective
Registrable Securities as the Company may from time to time reasonably request
in writing or as shall be required by law or by the Commission in connection
with any registration, and Philips shall promptly notify the Company of the
distribution of such securities.
4.2 Underwriting. (a) If requested by the underwriters for any
underwritten offering of Registrable Securities pursuant to a registration
requested hereunder, the Company will enter into and perform its obligations
under an underwriting agreement with such underwriters for such offering, such
agreement to contain such representations and warranties by the Company and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in Section 6 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 4.1(f).
Philips shall, if requested by such underwriters, be party to any such
underwriting agreement. Notwithstanding the foregoing, Philips may elect, in
writing prior to the effective date of the Registration Statement filed in
connection with such registration, not to register such Registrable Securities
in connection with such registration.
(b) In the event that any registration pursuant to Section 3
hereof shall involve, in whole or in part, an underwritten offering,
the Company may require Registrable Securities requested to be
registered pursuant to Section 3 to be included in such underwriting on
the same terms and conditions as shall be applicable to the Other
Securities being sold through underwriters under such registration. In
such case, the holders of Registrable Securities on whose behalf
Registrable Securities are to be distributed by such underwriters shall
be parties to any such underwriting agreement. Such agreement shall
contain such representations and warranties and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided
in Section 6.
(c) In the event that any registration pursuant to Section 2
hereof shall involve, in whole or in part, an underwritten offering,
Philips shall have the right to select the underwriters for such
underwritten offering, which underwriters shall be subject to approval
by the Company, which approval shall not be unreasonably withheld or
delayed. The underwriting agreement shall contain such representations
and warranties and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities and contribution to the effect and to the
extent provided in Section 6.
4.3 Qualification for Rule 144 Sales. The Company will use commercially
reasonable efforts to take all actions necessary to comply with the filing
requirements described in Rule 144(c)(1) so as to enable Philips to sell
Registrable Securities without registration under the Securities Act and, upon
the written request of Philips, the Company will promptly deliver to Philips a
written statement as to whether it has complied with such filing requirements.
In connection with any sale, transfer or other disposition by Philips of any
Registrable Securities pursuant to Rule 144 under the Securities Act, upon
delivery to the Company of an opinion of Xxxxxxxx & Xxxxxxxx or of other legal
counsel that (to the Company's reasonable satisfaction) is knowledgeable in
securities laws matters to the effect that such disposition of Registrable
Securities may be effected without registration under the Securities Act, the
Company shall cooperate with Philips to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any Securities Act legend, and enable certificates for such Registrable
Securities to be for such number of shares and registered in such names as
Philips may reasonably request at least three (3) Business Days prior to any
sale of Registrable Securities hereunder.
SECTION 5
PREPARATION; REASONABLE INVESTIGATION
5.1 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each Registration Statement registering Philips'
Registrable Securities under the Securities Act, the Company will give Philips
and the underwriters, if any, and their respective counsel and accountants,
drafts of such Registration Statement for their review and comment prior to
filing and such reasonable and customary access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have certified its financial statements
as shall be necessary, in the opinion of Philips and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act, subject in all cases to mutually acceptable confidentiality
arrangements.
SECTION 6
INDEMNIFICATION AND CONTRIBUTION
6.1 Indemnification and Contribution. Upon the registration of the
Registrable Securities pursuant to Section 2 or 3 hereof:
(a) Indemnification by the Company. The Company shall indemnify and
hold harmless Philips and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Registrable
Securities, and each of their respective officers
and directors and each Person who controls Philips or such underwriter, selling
agent or other securities professional 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 any Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, 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 such Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein.
(b) Indemnification by Philips. Philips agrees, upon exercise
of its registration rights pursuant to Section 2 or 3, to (i) indemnify and hold
harmless the Company, its directors, officers who sign any 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 such 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 written information furnished to the Company by Philips
expressly for use therein, 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 6, 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 6.
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 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 6 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 6 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) Notwithstanding any other provision of this Section 6, in
no event will Philips be required to undertake liability to any Person under
this Section 6 for any amounts in excess of the dollar amount of the proceeds to
be received by Philips from the sale of Philips' Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Registration Statement under which such Registrable Securities are to be
registered under the Securities Act.
(f) The obligations of the Company under this Section 6 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 6 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 6 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.
SECTION 7
MISCELLANEOUS
7.1 Limitations on Subsequent Registration Rights. The Company shall
not, without the consent of Philips, enter into any agreement (other than this
Agreement) with any securityholder or prospective securityholder of Registrable
Securities which would either (i) be inconsistent with the rights granted to
Philips hereunder or (ii) allow at any time such securityholder or prospective
securityholder to exercise registration rights of any kind with respect to any
Registrable Securities held by it before Philips was allowed or able to register
those of Philips' Registrable Securities with respect to which Philips shall
have made a Request prior to the time of such other securityholder's or
prospective securityholder's request for registration; provided, however, that
(x) a Request withdrawn by Philips shall not be considered a "Request" for
purposes of this clause (ii) and (y) this clause (ii) shall not limit the
ability of the Company to enter into an agreement which would allow such
securityholder or prospective securityholder to exercise registration rights at
any time when Philips otherwise does not have an unfulfilled Request oustanding.
7.2 Transfer of Registration Rights. Until the Company's Initial Public
Offering, the right to cause the Company to register securities granted by the
Company under Sections 2 and 3 may be assigned by Philips to (i) one or more of
its Affiliates, or (ii) a transferee or assignee of not less than 25,000,000
shares of Common Stock (it being understood and agreed that such number shall be
adjusted from time to time so that it shall represent no less than 5% (five
percent) of the outstanding shares of Common Stock of the Company at any time,
taking into consideration the occurrence of any stock splits, combinations,
distributions of stock dividends, issuances of rights or warrants, distributions
of indebtedness, securities or assets or any other changes that may alter the
current capitalization of the Company after the date hereof); provided that the
Company is given written notice by Philips at the time of or within a reasonable
time after said transfer, stating the name and address of said transferee or
assignee, identifying the securities with respect to which such registration
rights are being assigned and providing the written agreement of said transferee
to be bound by the terms of this Agreement.
7.3 Termination of the Company's Obligations. The Company shall have no
obligations pursuant to Sections 2 or 3 with respect to any Request or Requests
made by Philips after the earlier of (a) five years after the Company's Initial
Public Offering or (b) the date at which Philips is able to sell all Registrable
Securities held by it within a one hundred eighty day period in accordance with
Rule 144 of the Commission.
7.4 [intentionally omitted]
7.5 GOVERNING LAW. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT NOT
INCLUDING THE CHOICE OF LAW RULES THEREOF.
7.6 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.7 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subjects
hereof, and this Agreement shall supersede and cancel all prior agreements
between the parties hereto with regard to the subject matter hereof, and in
particular, but without limiting the generality of the foregoing, it shall
supersede the entire registration rights, preemptive rights, rights of first
refusal or any and all similar rights held by Philips prior to the execution of
this Agreement.
7.8 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed:
If to Philips, at:
Philips Consumer Electronic Services B.V.
c/o Philips Electronics North America Corp.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
If to the Company, at:
00000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
or at such other address as either party shall have furnished to the other in
writing. All such notices and other written communications shall be effective
(i) if mailed, seven (7) days after mailing, (ii) if delivered, upon delivery,
or (iii) if faxed, within one business day after transmission.
7.9 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party hereto upon any breach or default of
the other party under this Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such breach
or default, or any acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party hereto of any breach or default under this
Agreement or any waiver on the part of any party hereto of any provisions or
conditions of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party, shall be cumulative
and not alternative.
7.10 Severability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby. The parties hereto agree to replace any such provision with a
valid provision that reflects as closely as possible the intent and spirit of
the invalid provision.
7.11 Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of any
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.
7.12 Titles and Subtitles. The titles of the Sections, sections and
paragraphs of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.13 Gender. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, whether singular or plural, as the
context may require.
7.14 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
NAVIGATION TECHNOLOGIES
CORPORATION
a Delaware Corporation
By: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: President and Chief Executive Officer
PHILIPS CONSUMER ELECTRONIC
SERVICES B.V.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney-in-fact
