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EXHIBIT 4.9
WARRANT REGISTRATION RIGHTS AGREEMENT
This Warrant Registration Rights Agreement (this "Agreement") is made
and entered into as of September 23, 1997 by and among HighwayMaster
Communications, Inc., a Delaware corporation (the "Company"), Bear, Xxxxxxx &
Co. Inc. ("Bear Xxxxxxx"), and Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx"). Bear
Xxxxxxx and Xxxxx Xxxxxx are hereafter referred to collectively as the
"Purchasers."
Pursuant to the Purchase Agreement, dated September 18, 1997, (the
"Purchase Agreement"), by and among the Company, HighwayMaster Corporation, a
Delaware corporation, and the Purchasers, the Purchasers have agreed to
purchase 125,000 units consisting in part of warrants (the "Warrants") to
purchase shares of the Company's common stock, par value $.01 per share (the
"Common Stock").
In order to induce the Purchasers to purchase the units, the Company
has agreed to provide the registration rights set forth in this Agreement for
the benefit of (i) the Purchasers, and (ii) the Persons owning a beneficial
interest in the Warrants (the "Holders"). The execution and delivery of this
Agreement is a condition to the obligations of the Purchasers set forth in
Section 9 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Advice: As defined in Section 7(b).
Affiliate: Affiliate of any specified Person means any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with such specified Person. For purposes of this definition,
control of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Agreement: As defined in the preamble hereto.
Bear Xxxxxxx: As defined in the preamble hereto.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York on which banks are authorized to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Common Stock: As defined in the preamble hereto.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Holders: As defined in the preamble hereto.
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Managing Underwriters: As defined in Section 9 hereof.
Majority Holders: The Holders of a majority of the aggregate number of
outstanding Warrants.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, trust or other organization whether or not
a legal entity, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in the Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchasers: As defined in the preamble hereto.
Registrable Securities: The Warrants until resold by the Holders
thereof pursuant to the Shelf Registration Statement and the Warrant Shares
until issued by the Company pursuant to the Shelf Registration Statement.
Shelf Registration: The shelf registration effected pursuant to
Section 2 hereof.
Shelf Registration Statement: The shelf registration statement of the
Company pursuant to Section 2 hereof filed with the Commission which covers the
Registrable Securities, as applicable, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
Xxxxx Xxxxxx: As defined in the preamble hereto.
Underwriter: Any underwriter in connection with an Underwritten
Offering.
Underwritten Offering: An offering in which Warrants are sold to an
underwriter.
Warrants: As defined in the preamble hereto.
Warrant Agent: Texas Commerce Bank, National Association, as warrant
agent.
Warrant Agreement: The Warrant Agreement, dated as of the Closing
Date, between the Company and the Warrant Agent.
Warrant Shares: The shares of Common Stock issuable upon exercise of
the Warrants.
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SECTION 2. SHELF REGISTRATION STATEMENT
(a) Filing of a Shelf Registration Statement. The Company
shall (i) within 270 days following the Closing Date, file with the Commission
the Shelf Registration Statement relating to the resale of the Warrants by the
Holders thereof from time to time in accordance with the methods of
distribution elected by the Majority Holders and set forth in the Shelf
Registration Statement and the issuance of the Warrant Shares by the Company
upon the exercise of the Warrants in accordance with the terms of the Warrant
Agreement (including securities deemed registered pursuant to Rule 416 under
the Securities Act), and thereafter, (ii) use its best efforts to cause the
Shelf Registration Statement to be declared effective under the Securities Act
within 365 days following the Closing Date; provided that no Holder shall be
entitled to have its Warrants covered by the Shelf Registration Statement
unless such Holder is in compliance with Section 3 hereof.
(b) Effective Period. Subject to Section 4 hereof, the
Company shall use its best efforts (i) to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof
to be usable during a period from the date the Shelf Registration Statement is
declared effective to the earlier of (A) the expiration of the Warrants, and
(B) the time when all Warrants have been exercised, and (ii) after the
effectiveness of the Shelf Registration Statement, promptly upon the request of
any Holder to take any action reasonably necessary to register the sale of any
Warrants of such Holder and to identify such Holder as a selling
securityholder.
SECTION 3. HOLDER INFORMATION
No Holder of Registrable Securities may include any of its Registrable
Securities in the Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Company in writing such
information as the Company may reasonably request specified in Item 507 and
Item 508 of Regulation S-K under the Act for use in connection with the Shelf
Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 4. BLACK OUT PERIOD
During any consecutive 365 day period, the Company may suspend the
effectiveness of the Shelf Registration Statement on two occasions for a period
of not more than 45 consecutive days if there is a possible acquisition or
business combination or other transaction, business development or event
involving the Company that may require disclosure in the Shelf Registration
Statement and the Board of Directors of the Company determines in the exercise
of its reasonable judgment that such disclosure is not in the best interests of
the Company and its stockholders or obtaining any financial statements relating
to an acquisition or business combination required to be included in the Shelf
Registration Statement would be impracticable. In such a case, the Company
shall promptly notify the Holders of the suspension of the Shelf Registration
Statement's effectiveness, provided that such notice shall not require the
Company to disclose the possible acquisition or business combination or other
transaction, business development or event if the Board of
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Directors of the Company determines in good faith that such acquisition or
business combination or other transaction, business development or event should
remain confidential. Upon the abandonment, consummation, or termination of the
possible acquisition or business combination or other transaction, business
development or event, or the availability of the required financial statements
with respect to a possible acquisition or business combination, the suspension
of the use of the Shelf Registration Statement pursuant to this Section 4 shall
cease and the Company shall promptly comply with Section 5(a)(ii) hereof and
notify the Holders that disposition of Registrable Securities may be resumed.
Notwithstanding anything to the contrary in this Agreement, however, the
Company may not suspend the effectiveness of the Shelf Registration Statement
or permit any such suspension to continue at any time after 45 days before the
expiration of the Warrants.
SECTION 5. REGISTRATION PROCEDURES
(a) General Provisions. In connection with the Shelf Registration
Statement and any related Prospectus, the Company shall:
(i) Use its best efforts to keep the Shelf
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Section 2
hereof; upon the occurrence of any event that would cause the Shelf
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to the Shelf Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), use its
best efforts to cause such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as reasonably practicable
thereafter;
(ii) Prepare and file with the Commission such
amendments and post-effective amendments to the Shelf Registration
Statement as may be necessary to keep the Shelf Registration Statement
effective for the period set forth in Section 2 hereof, subject to
Section 4 hereof, the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Act in a timely manner; and
comply with the provisions of the Act with respect to the disposition
of all Registrable Securities covered by the Shelf Registration
Statement in accordance with the intended method or methods of
distribution set forth in the Shelf Registration Statement or
supplement to the Prospectus;
(iii) Advise promptly the Underwriters, if any, and
Holders and, if requested by such Persons, to confirm such advice in
writing, (A) when the Shelf Registration Statement or any Prospectus
supplement or post-effective amendment has been filed, and with
respect to or any post-effective amendment, when the same has become
effective, (B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (C) of the
issuance by the
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Commission of any stop order suspending the effectiveness of the Shelf
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Registrable
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes or (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Shelf Registration Statement,
the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Shelf Registration Statement or
the Prospectus in order to make the statements of material fact
therein not misleading; if at any time the Commission shall issue any
stop order suspending the effectiveness of the Shelf Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Registrable Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest
practicable time;
(iv) Furnish to the Purchasers, each Holder, and
each of the Underwriters in connection with such sale, if any, before
filing with the Commission, copies of the Shelf Registration Statement
or the Prospectus included therein and any amendments or supplements
to such Shelf Registration Statement or Prospectus (including all
documents incorporated by reference), which documents will be subject
to the review of such Holders and Underwriters in connection with such
sale, if any, for a period of at least five Business Days, and the
Company will not file the Shelf Registration Statement or Prospectus
or any amendment or supplement to the Shelf Registration Statement or
Prospectus (including all documents incorporated by reference) to
which a Holder or the Underwriters in connection with such sale, if
any, shall reasonably object within five Business Days after the
receipt thereof; a Holder or Underwriter, if any, shall be deemed to
have reasonably objected to such filing if the Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission or
fails to comply with the applicable requirements of the Act;
(v) Promptly prior to the filing of any document
that is to be incorporated by reference into the Shelf Registration
Statement or Prospectus, if requested by any Holders or the
Underwriters, if any, within five Business Days after receipt of
notification thereof from the Company, provide copies of such document
to the Holders and to the Underwriters, if any, make the Company's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders or Underwriters,
if any, reasonably may request;
(vi) Make available at reasonable times for
inspection by the Majority Holders, any Managing Underwriter
participating in any disposition pursuant to the Shelf Registration
Statement, and any attorney or accountant retained by the Majority
Holders or any of the Underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all
information reasonably requested by any such Majority Holder,
Underwriter, attorney or
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accountant in connection with the Shelf Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
(vii) If requested by any Holders or the
Underwriters in connection with such sale, if any, promptly include in
the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such Holders and such Underwriters, if any, may reasonably request
to have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Registrable Securities;
and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement
or post-effective amendment;
(viii) Furnish to each Holder and each of the
Underwriters, if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(ix) Deliver to each Holder and each of the
Underwriters in connection with such sale, if any, without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons may request;
the Company hereby consents to the use of the Prospectus and any
amendment or supplement thereto by each of the Holders and each of the
Underwriters, if any, in connection with the offering and the sale of
the Registrable Securities covered by the Prospectus or any amendment
or supplement thereto;
(x) In connection with an Underwritten Offering of
Registrable Securities pursuant to the Shelf Registration Statement,
enter into an underwriting agreement as is customary in Underwritten
Offerings and take all such other actions as are reasonably requested
by the Managing Underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in
such connection, (A) make such representations and warranties to the
Underwriters, with respect to the business of the Company and its
subsidiaries, and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
Underwriters in Underwritten Offerings, and confirm the same if and
when requested; (B) obtain an opinion of outside counsel to the
Company and updates thereof in form and substance reasonably
satisfactory to the Managing Underwriters, addressed to the
Underwriters covering the matters customarily covered in opinions
requested in Underwritten Offerings and such other matters as may be
reasonably requested by the Underwriters, including a statement to the
effect that such counsel has participated in conferences with officers
and other representatives of the Company, representatives of the
independent public accountants for the Company, and such other Persons
as may participate in such conferences at which the contents of such
Shelf Registration Statement and related Prospectus were discussed,
and although such counsel has not undertaken to investigate or
independently verify and does not assume any responsibility for the
accuracy, completeness, or fairness of the statements therein, such
counsel
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advises that (relying as to materiality to a large extent upon facts
provided to such counsel by officers and other representatives of the
Company and without independent check or verification), no facts came
to such counsel's attention that caused such counsel to believe that
the Shelf Registration Statement and related Prospectus, at the time
that the Shelf Registration Statement became effective, contained an
untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (C) obtain comfort letters and updates thereof
in form and substance reasonably satisfactory to the Managing
Underwriters from the independent certified public accountants of the
Company; and (D) if an underwriting agreement is entered into, the
same shall contain indemnification and contribution provisions and
procedures no less favorable than those set forth in Section 7 hereof
with respect to all parties to be indemnified pursuant to Section 7.
The above shall be done at each closing under such underwriting
agreement. In addition, notwithstanding anything herein to the
contrary, in connection with any other offering of Registrable
Securities pursuant to the Shelf Registration Statement, the Company
shall obtain those items specified in clause (C) of the foregoing
sentence concurrently with the effectiveness of the Shelf Registration
Statement and any post-effective amendments thereto;
(xi) Prior to any public offering of Registrable
Securities, cooperate with the Holders, the Underwriters, if any, and
their respective counsel in connection with the registration and
qualification of the Registrable Securities under the securities or
Blue Sky laws of such jurisdictions as the Holders or Underwriters, if
any, may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Shelf Registration Statement;
provided however, that the Company shall not be required to register
or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to service of process in
suits or to taxation in any jurisdiction where it is not now so
subject;
(xii) Cooperate with the Holders and the
Underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold and not bearing any restrictive legends; and to register such
Registrable Securities in such denominations and such names as the
Holders or the Underwriters, if any, may request at least two Business
Days prior to such sale of Registrable Securities made by such
Underwriters;
(xiii) Use its best efforts to cause the
Registrable Securities covered by the Shelf Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the Underwriters, if any, to consummate the disposition of
such Registrable Securities, except as may be required solely as a
consequence of the nature of such seller's business (in which case
the Company will cooperate in all reasonable respects);
(xiv) If any fact or event contemplated by Section
5(a)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as
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thereafter delivered to the purchasers of Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading;
(xv) Provide a CUSIP number for all Registrable
Securities not later than the effective date of the Shelf Registration
Statement if such Registrable Securities do not already have a CUSIP
number;
(xvi) Cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any Underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(xvii) Otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to Holders, as soon as reasonably practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Act (which need not be audited) covering a twelve month
period (A) beginning at the end of any fiscal quarter in which
Registrable Securities are sold to Underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to Underwriters in
such an offering, commencing with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement;
(xviii) Provide promptly to each Holder upon request
each document filed with the Commission pursuant to the requirements
of Section 13 or Section 15 of the Exchange Act;
(xix) In the event that any broker-dealer
registered under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the NASD, including
Schedule E thereto) thereof, whether as a Holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Schedule E) to participate in
the preparation of the Shelf Registration Statement relating to such
Registrable Securities and to exercise usual standards of due
diligence in respect thereto, (B) indemnifying any such qualified
independent underwriter to the same extent as the Company indemnifies
the Holders under Section 7 hereof, and (C) providing such
information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Rules of
Fair Practice of the NASD; and
(xx) Use its best efforts to cause all
Registrable Securities covered by the Shelf Registration Statement to
be listed on each securities exchange on which similar securities
issued by the Company are then listed if requested by the Majority
Holders or the Managing Underwriters, if any.
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(b) Restrictions on Holders. Each Holder agrees by acquisition of
a Registrable Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 5(a)(iii)(D) hereof,
such Holder will forthwith discontinue disposition of Registrable Securities
pursuant to the Shelf Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section
5(a)(xiv) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities that was current at the time of receipt of such notice.
SECTION 6. REGISTRATION EXPENSES
(a) Company Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether the Shelf Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Underwriter or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the
NASD)), (ii) all fees and expenses incurred in connection with compliance with
federal securities and state Blue Sky or securities laws, (iii) all expenses of
printing (including printing certificates for the Warrant Shares and printing
of Prospectuses), messenger and delivery services and telephone, (iv) all fees
and disbursements of counsel for the Company, and in accordance with Section
6(b) below, the Holders, (v) if applicable, all application and filing fees in
connection with listing Registrable Securities on a national securities
exchange or automated quotation system pursuant to the requirements hereof, and
(vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will bear internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.
(b) Counsel for Holders. In connection with the Shelf Registration
Statement, the Company will reimburse the Purchasers and the Holders for the
reasonable fees and disbursements of not more than one counsel, which shall be
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. or such other counsel as may be
chosen by the Majority Holders. The Holders shall be responsible for any of
their other out-of-pocket expenses incurred in connection with the registration
of the sale of their Registrable Securities.
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SECTION 7. INDEMNIFICATION
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the fullest extent permitted by law, each of the Holders,
each Person, if any, who controls any Holder within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of each Holder or
any controlling Person, against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus, or
in any supplement thereto or amendment thereof, 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, in the light
of the circumstances under which they were made, not misleading; provided,
however, that the Company will not be liable in any such case to the extent,
but only to the extent, that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Holders expressly for use therein. This indemnity will be in addition to
any liability which the Company may otherwise have, including, under this
Agreement.
(b) Indemnification by the Holders. Each of the Holders agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Person, if any, who controls the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of the Company or
any such controlling Person, against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or Prospectus, or
in any amendment thereof 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, in light of
the circumstances under which they were made, not misleading in each case to
the extent, but only to the extent, that any such loss, liability, claim,
damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder expressly for use therein; provided,
however, that in no case shall any Holder be liable or responsible for any
amount in excess of the dollar amount of the proceeds received by such Holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. This indemnity will be in addition to any liability which any
Holder may otherwise have, including under this Agreement.
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(c) Indemnification Procedure. 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 the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying party
shall not relieve it from any liability which it may have under this Section 7
except to the extent that it has been prejudiced in any material respect by
such failure or from any liability which it may otherwise have). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party. Notwithstanding
the foregoing, the indemnified party or parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i)
the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have concluded,
upon the advice of counsel, that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct such different or additional defenses on behalf of the
indemnified party or parties, but shall retain the right to direct any common
defenses) in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the indemnifying
party under subsection (a) or (b) above, shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties in each jurisdiction in which any claim or action is brought. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent.
(d) Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in this Section 7 is
for any reason held to be unavailable or is insufficient (other than by reason
of the terms thereof) to hold harmless a party indemnified hereunder, the
Company, on the one hand, and each Holder, on the other hand, shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the
nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from Persons, other than the Holders, who may also be liable for
contribution, including Persons who control the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) to which the
Company and any Holder may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and any
such Holder, on the other hand, or, if such allocation is not permitted by
applicable law or if indemnification is not available as a result of the
indemnifying party not having received notice as provided in this Section 7, in
such proportion as is appropriate to reflect not only the relative benefits
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referred to above but also the relative fault of the Company, on the one hand,
and the Holders, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and any Holder, on the other
hand, shall be deemed to be in the same proportion as (x) the total proceeds
from the offering of the Units (net of discounts but before deducting expenses)
received by the Company and (y) the total proceeds received by such Holder upon
its sale of Registrable Securities which would otherwise give rise to the
indemnification obligation, respectively. The relative fault of the Company and
the Holders shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied or
which should have been supplied by the Company, on the one hand, or to
information supplied by the Holders, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7, (i) no Holder shall be
required to contribute, in the aggregate, any amount in excess of the dollar
amount by which the proceeds received by such Holder with respect to the sale
of its Registrable Securities exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission and (ii) no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 7, each
Person, if any, who controls a Holder within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of a Holder or any
controlling Person shall have the same rights to contribution as such Holder,
and each Person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of the Company, or
any such controlling Person shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 7(d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may
be sought, but the failure to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation
it or they may have under this Section 7 or otherwise.
SECTION 8. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such underwriting arrangements.
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SECTION 9. SELECTION OF UNDERWRITERS
The Majority Holders may elect to sell their Warrants in an
Underwritten Offering by notifying the Company. Within 30 days after receiving
such notification, the Company shall amend the Shelf Registration Statement to
provide for the requested Underwritten Offering. In any such Underwritten
Offering the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Majority Holders;
provided, that such investment bankers and managers must be reasonably
satisfactory to the Company (it being understood that Bear Xxxxxxx and Xxxxx
Xxxxxx are reasonably satisfactory); such investment bankers and manager or
managers are referred to herein as the "Managing Underwriters."
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of the Company's securities under any agreement in effect on the date hereof.
(c) Other Registration Rights. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggyback on the Shelf Registration Statement, provided that (subject to any
contractual obligations of the Company in effect on the date hereof) if the
Managing Underwriter, if any, of such offering delivers an opinion to the
Holders that the total amount of securities which they and the holders of such
piggyback rights intend to include in the Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of holders of such
piggyback rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of the Majority Holders of Registrable Securities.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), facsimile transmission,
telex, telecopier, or air courier guaranteeing overnight delivery:
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(i) if to a Holder of Warrants, at the address
set forth on the records of the registrar under the Warrant Agreement,
with a copy to the Warrant Agent; and
(ii) if to the Company:
HighwayMaster Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; upon
receipt of a confirmation notice, if sent by facsimile transmission; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at
the address specified in the Warrant Agreement.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon any Person that
is not a Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality or enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HIGHWAYMASTER COMMUNICATIONS, INC.
By: /S/ J. Xxxxxx XxXxxxxxx
----------------------------------------
Name: J. Xxxxxx XxXxxxxxx
--------------------------------------
Title: Executive Vice President and Chief
-------------------------------------
Financial Officer
BEAR, XXXXXXX & CO. INC.
By: /S/ J. Xxxxxx Xxxxx
----------------------------------------
Name: J. .Xxxxxx Xxxxx
-------------------------------------
Title: Senior Managing Director
-------------------------------------
XXXXX XXXXXX INC.
By: /S/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------
Title: Managing Director
-------------------------------------
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