EXHIBIT 10.9
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is entered into as of December 6, 1996, by and among TELETRAC, INC., a Delaware
corporation (the "Company"), the undersigned holders of the capital stock of the
Company (the "Holders"), and those other persons and entities who have executed
or shall have executed this Agreement and whose names appear on the Schedule of
Registration Rights Holders attached hereto as EXHIBIT A, as such Schedule may
be amended from time to time pursuant to Section 13 hereof. This Agreement
amends and restates in its entirety the Amended Registration Rights Agreement
(as defined below).
WITNESSETH:
WHEREAS, the Company and certain of the Holders entered into the
Registration Rights Agreement dated as of November 14, 1995, as amended by
Amendment No. 1 to Registration Rights Agreement dated March 29, 1996 (the
"Amended Registration Rights Agreement"); and
WHEREAS, the Company and certain Holders contemporaneously herewith are
entering into a Stock Purchase Agreement (the "Convertible Preferred Stock
Purchase Agreement") pursuant to which such Holders shall purchase from the
Company Series A Redeemable Convertible Participating Preferred Stock, par value
$.01 per share (the "Series A Preferred Shares"), which Series A Preferred
Shares shall, upon automatic conversion thereof in accordance with the Charter,
be convertible into one or more series of Redeemable Convertible Participating
Preferred Stock, par value $.01 per share (the "Redeemable Convertible
Participating Preferred Stock," and including the Series A Preferred Stock, the
"Convertible Preferred Stock") of the Company; and
WHEREAS, to induce such Holders to purchase the Series A Preferred Shares,
the Company has agreed to provide the registration rights set forth in this
Agreement and the execution of this Agreement is a condition precedent to the
purchase by the Investors (as defined in the Convertible Preferred Stock
Purchase Agreement) of the Series A Preferred Shares under the Convertible
Preferred Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants contained herein, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used herein, the following terms shall have the following respective
meanings:
1.1 "COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.2 "HOLDERS" shall mean and include any person or persons who have
executed this Agreement and whose names appear on the Schedule of Registration
Rights Holders or who shall, pursuant to Article 13 hereof, become parties
hereto, and any qualifying transferees under Article 11 hereof who hold
Registrable Securities.
1.3 "INITIATING HOLDERS" shall mean any Holders who in the aggregate own
not less than forty percent (40%) of the Registrable Securities; provided,
however, that after the date on which the Company has closed its Initial Public
Offering, "Initiating Holders" shall mean any Holders who in the aggregate own
not less than ten percent (10%) of the Registrable Securities.
1.4 "INITIAL PUBLIC OFFERING" shall mean the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), covering
the offer and sale of Common Stock to the public at an aggregate offering price
to the public of at least $10,000,000.
1.5 The terms, "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration 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.
1.6 "REGISTRABLE SECURITIES" means any and all shares of Class A Common
Stock (as defined in the Convertible Preferred Stock Purchase Agreement)
(i) issued or issuable upon conversion of the Convertible Preferred Stock,
(ii) issued under the Stock Purchase Agreement dated November 14, 1995 by and
among the Company and certain Holders, (iii) issued under the Subscription
Agreement dated March 29, 1996 by and among the Company and certain Holders,
(iv) issued or issuable upon conversion of the Class B Common Stock (as defined
in the Convertible Preferred Stock Purchase Agreement) (disregarding any
restriction on the conversion of such Class B Common Stock into Class A Common
Stock), (v) issued upon exercise of any options granted by the Company pursuant
to the Company's 1995 Stock Option Plan, the Company's 1996 Stock Option Plan or
any other compensation plans which have been adopted by and approved by the
Compensation Committee of the Board of Directors, and (vi) issued or issuable
with respect to any Securities referred to in classes (i) through (v) above,
upon any stock split, stock dividend, recapitalization or similar event, which
shares have not been sold to the public.
1.7 "REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Articles 2 and 3 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of legal counsel for the Company, fees and
disbursements of one legal counsel for the selling stockholders, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company).
1.8 "S-3 REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Article 4 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of legal counsel for the
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Company, fees and disbursements of one legal counsel for the selling
stockholders, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company).
1.9 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
1.10 "SELLING EXPENSES" shall mean all underwriting fees, discounts,
selling commissions and stock transfer taxes applicable to the Registrable
Securities registered by the Holders.
ARTICLE 2
REQUESTED REGISTRATION
2.1 REQUEST FOR REGISTRATION. In the event the Company shall receive from
the Initiating Holders a written request that the Company effect any
registration, qualification or compliance with respect to Registrable Securities
with an anticipated aggregate offering price to the public of at least
$10,000,000, the Company will:
(a) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(b) use its diligent efforts to effect such registration,
qualification or compliance as soon as practicable (including, without
limitation, undertaking to file post-effective amendments, appropriate
qualifications under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act, and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by the Company within 15 days after the receipt of the written notice from the
Company described in Section 2.1(a);
provided, however, that the Company shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Article 2:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) Within one hundred and eighty (180) days immediately
following the effective date of any registration statement pertaining to a
firmly underwritten offering of
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securities of the Company for its own account (or such lesser period as the
managing underwriters of such offering will allow); or
(iii) After the Company has effected three (3) such requested
registrations pursuant to this Article 2 (not including registrations on Form
S-3 or registrations in which the number of shares of Registrable Securities of
the Holders registered in such offering was reduced by more than fifty percent
(50%) due to underwriters' marketing limitations), each such registration has
been declared or ordered effective, and the securities offered pursuant to each
such registration have been sold, or if the Company has effected any requested
registration (other than a registration for the Company's Initial Public
Offering) pursuant to this Agreement during the previous twelve-month period (or
such shorter period as the managing underwriter of the Company's most recent
public offering will allow).
(iv) If the Company then meets the eligibility requirements
applicable to the use of Form S-3 in connection with such registration and is
able to effect such requested registration pursuant to Article 4 hereof.
(c) Subject to the foregoing clauses (i) through (iv), the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
of the Initiating Holders; provided, however, that if the Company shall furnish
to such Holders a certificate signed by the President or other chief executive
officer of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be filed, the Company shall
have the right to defer such filing for a period of not more than 120 days after
receipt of the request of the Initiating Holders (provided, however, that the
Company shall not be permitted to exercise such deferral right under this
Section 2.1(c) or Section 4.1(c) hereof more than once in any 360-day period).
2.2 UNDERWRITING.
(a) The distribution of the Registrable Securities covered by the
request of the Initiating Holders shall be effected by means of a firm
commitment underwriting. The right of any Holder to registration pursuant to
this Article 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
other Holders and such Initiating Holders) to the extent provided herein.
(b) The Company (together with all Holders proposing to distribute
their securities through such underwriting) shall enter into an underwriting
agreement in customary form with a managing underwriter of nationally recognized
standing selected for such underwriting by a majority in interest of the Holders
of Registrable Securities included in such registration and approved by the
Company, which approval shall not be unreasonably withheld. Notwithstanding any
other provision of this Article 2, if the managing underwriter advises the
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the underwriters may exclude shares requested to
be included in such
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registration subject to the provisions of Section 2.3. The number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated amongst Holders who have requested registration of
Registrable Securities in such registration and underwriting in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by such Holders at the time of filing the registration statement. No
Registrable Securities excluded from the underwriting by reason of the managing
underwriter's marketing limitation shall be included in such registration.
(c) If any Holder of Registrable Securities disapproves of the terms
of the underwriting, such person may elect to withdraw therefrom by written
notice to the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration; provided, however, that if by the withdrawal of
such Registrable Securities a greater number of Registrable Securities held by
other Holders may be included in such registration (up to the maximum of any
limitation imposed by the underwriters), then the Company shall offer to all
Holders who have included Registrable Securities in the registration the right
to include additional Registrable Securities in the same proportion used in
determining the underwriter limitation in this Section 2.2(c).
2.3 INCLUSION OF SHARES BY COMPANY. If the managing underwriter has not
limited the number of Registrable Securities to be underwritten, the Company may
include securities for its own account or for the account of others in such
registration if the managing underwriter so agrees and if the number of
Registrable Securities held by Holders which would otherwise have been included
in such registration and underwriting will not thereby be limited. The
inclusion of such shares shall be on the same terms as the registration of
shares held by the Holders. In the event that the underwriters exclude some of
the securities to be registered, the securities to be sold for the account of
the Company and any other holders shall be excluded in their entirety prior to
the exclusion of any Registrable Securities.
ARTICLE 3
COMPANY REGISTRATION
3.1 NOTICE OF REGISTRATION TO HOLDERS. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or the account of a security holder or holders (including,
without limitation, under Article IV), other than (i) a registration relating
solely to employee benefit plans on Form S-8 (or any successor form) or (ii) a
registration relating solely to a Commission Rule 145 transaction on Form S-4
(or any successor form), the Company will:
(a) promptly give to each Holder written notice thereof; and
(b) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within 15 days after receipt of such written notice from the Company described
in Section 3.1(a), by any Holder or Holders.
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3.2 UNDERWRITING. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
3.1(a). In such event, the right of any Holder to registration pursuant to this
Article 3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company.
(a) Notwithstanding any other provision of this Article 3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders of Registrable Securities, and the number of shares
of Common Stock to be included in such registration shall be allocated as
follows: first, for the account of the Company, all shares of Common Stock
proposed to be sold by the Company; second, for the account of Holders of
Registrable Securities participating in such registration, the number of shares
of Common Stock requested to be included in the registration by such Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities that are proposed to be offered and sold by such Holders of
Registrable Securities at the time of filing the registration statement, and
third, for the account of any other stockholders of the Company participating in
such registration, the number of shares of Common Stock requested to be included
in the registration by such other stockholders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities that are
proposed to be offered and sold by such other stockholders of Registrable
Securities at the time of filing the registration statement; PROVIDED, HOWEVER,
that if the offering is not an Initial Public Offering, the number of shares of
Registrable Securities registered in such offering shall not be reduced to less
than forty percent (40%) of the total number of shares of securities registered
in such offering. No Registrable Securities excluded from the underwriting by
reason of the underwriters' marketing limitation shall be included in such
registration.
(b) The Company shall so advise all Holders and the other holders
distributing their securities through such underwriting of any such limitation,
and the number of shares of Registrable Securities held by Holders that may be
included in the registration and underwriting shall be allocated among all
Holders in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities held by all such Holders at the time of filing the
registration statement. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written notice to
the Company and the managing underwriter. Any securities excluded or withdrawn
from such underwriting shall be withdrawn from such registration, but the Holder
shall continue to be bound by Article 8 hereof.
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ARTICLE 4
REGISTRATION ON FORM S-3
4.1 REQUEST FOR REGISTRATION.
(a) In addition to the rights set forth in Articles 2 and 3 hereof,
if a Holder or Holders request that the Company file a registration statement on
Form S-3 (or any successor to Form S-3) for a public offering of shares of
Registrable Securities the reasonably anticipated aggregate price to the public
of which would equal at least $2,000,000 and the Company is a registrant
entitled to use Form S-3 (or any successor form to Form S-3) to register such
shares for such an offering, the Company shall use its best efforts to cause
such shares to be registered for the offering as soon as practicable on Form S-3
(or any such successor form to Form S-3).
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Article 4:
(i) in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(ii) if the Company, within ten (10) days of the receipt of the
request of the Holder or Holders, gives notice of its BONA FIDE intention to
effect the filing of a registration statement with the Commission within
forty-five (45) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction or an offering solely
to employees); and
(iii)during the period starting with the date of filing of,
and ending on a date which is 180 days following the effective date of, a
registration statement described in (ii) above or filed pursuant to this Article
4 or Articles 2 or 3 hereof (or such shorter period as the managing underwriter
of the Company's most recent public offering may agree), provided that the
Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and provided, further, that no other
person or entity could require the Company to file a registration statement in
such period.
(c) Subject to the foregoing clauses (i) through (iii), the Company
shall file a registration statement on Form S-3 covering the Registrable
Securities so requested to be registered as soon as practicable after receipt of
the request of the Holders; provided, however, that if the Company shall furnish
to such Holders a certificate signed by the Chief Executive Officer of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed on or before the date filing would
be required, and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a reasonable period of not more than ninety (90) days after receipt of the
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request of the Holders (provided, however, that the Company shall not be
permitted to exercise such deferral right under this Section 4.1(c) or Section
2.1(c) hereof more than once in any 360-day period).
4.2 UNDERWRITING.
(a) The distribution of the Registrable Securities covered by the
registration on Form S-3 shall be effected by means of the method of
distribution selected by the Holders holding a majority of the Registrable
Securities covered by such registration. If such distribution is effected by
means of an underwriting, the right of any Holder to registration pursuant to
this Article 4 shall be conditioned upon such Holder's participation in such
underwriting, if any, and the inclusion of such Holder's Registrable Securities
in such underwriting.
(b) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting, the Company (together
with all Holders proposing to distribute their securities through such
underwriting) shall enter into an underwriting agreement in customary form with
a managing underwriter of nationally recognized standing selected for such
underwriting by a majority in interest of the Holders requesting registration on
Form S-3 and approved by the Company, which approval shall not be unreasonably
withheld. Notwithstanding any other provision of this Article 4, if the
managing underwriter advises the Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
underwriters may exclude some or all of the shares requested to be included in
such registration subject to the provisions of Section 4.3; PROVIDED, HOWEVER,
the number of shares of Registrable Securities registered in such offering shall
not be reduced to less than forty percent (40%) of the total number of shares of
securities registered in such offering. The number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement. No registrable Securities excluded
from the underwriting by reason of the managing underwriter's marketing
limitation shall be included in such registration.
(c) If the distribution of the Registrable Securities pursuant to
this Section 4.2 is effected by means of an underwriting and if any Holder of
Registrable Securities disapproves of the terms of the underwriting, such person
may elect to withdraw therefrom by written notice to the Company, the managing
underwriter and the Holders. The Registrable Securities and/or other securities
so withdrawn shall also be withdrawn from registration; provided, however, that
if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Holders may be included in such
registration (up to the maximum of any limitation imposed by the underwriters),
then the Company shall offer to all Holders who have included Registrable
Securities in the registration the right to include additional Registrable
Securities in the same proportion used in determining the underwriter limitation
in this Section 4.2(c).
4.3 INCLUSION OF SHARES BY COMPANY. If the distribution of the
Registrable Securities pursuant to this Section 4.2 is effected by means of an
underwriting and if the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company
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may include securities for its own account or for the account of others in such
registration if the managing underwriter so agrees and if the number of
Registrable Securities held by Holders requesting registration on Form S-3 which
would otherwise have been included in such registration and underwriting will
not thereby be limited. The inclusion of such shares shall be on the same terms
as the registration of shares held by the Holders. In the event that the
underwriters exclude some of the securities to be registered on Form S-3, the
securities to be sold for the account of the Company and any other holders shall
be excluded in their entirety prior to the exclusion of any Registrable
Securities.
ARTICLE 5
EXPENSES OF REGISTRATION
All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Articles 2 and 3 hereof and all S-3
Registration Expenses shall be borne by the Company. All Selling Expenses
relating to securities registered by the Holders shall be borne by the holders
of such securities PRO RATA on the basis of the number of shares so registered.
ARTICLE 6
REGISTRATION PROCEDURES
In the case of each registration, qualification or compliance effected by
the Company pursuant to this Agreement, the Company will keep each Holder
advised in writing as to the initiation of each registration, qualification and
compliance and as to the completion thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance effective and
current for a period of one hundred eighty (180) days (or such longer period as
may be necessary to accommodate the filing of amendments or supplements
necessary to comply with the Securities Act) or until the Holder or Holders have
completed the distribution described in the registration statement relating
thereto, whichever first occurs;
(b) Furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(c) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdiction;
(d) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing
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underwriter of such offering. Each Holder participating in such underwriting
shall also enter into and perform its obligations under such an agreement;
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto covered
by such registration statement is required to be delivered under the Securities
Act, of the occurrence 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 a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing;
(f) Cause all such Registrable Securities to be quoted on the market
or listed on each securities exchange, as applicable, on which similar
securities issued by the Company are then quoted or listed;
(g) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make generally available to its
security holders, in each case as soon as practicable, but not later than
forty-five (45) days after the close of the period covered thereby (ninety (90)
days in case the period covered corresponds to the fiscal year of the Company),
an earnings statement of the Company which will satisfy the provisions of
Section 11(a) of the Securities Act; and
(h) Use its best efforts to furnish to each Holder and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
Holders of Registrable Securities included in such offering or the managing
underwriter therefor reasonably requests.
ARTICLE 7
INDEMNIFICATION
7.1 The Company will indemnify each Holder, each of its officers,
directors, partners, members, beneficiaries and stockholders and such Holder's
legal counsel, investment advisers, employees, agents and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act (each, a "Holder Indemnified
Party"), with respect to which registration, qualification or compliance has
been effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act (each, an "Underwriter Indemnified Party"), against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any
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amendment or supplement thereof, incident to any such registration,
qualification or compliance, or based on 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, or any violation by the Company of
any rule or regulation promulgated under the Securities Act or any state
securities laws applicable to the Company and relating to action or inaction by
the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder Indemnified Party and
Underwriter Indemnified Party for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable to any Holder Indemnified Party or Underwriter Indemnified Party to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by such Holder Indemnified Party or such Underwriter
Indemnified Party, as the case may be, and expressly intended for use in such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof.
7.2 Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, and each person
controlling any such persons within the meaning of Section 15 of the Securities
Act (each, a "Company Indemnified Party") and each Underwriter Indemnified
Party, if any, and each other Holder Indemnified Party against all expenses,
claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance or based on 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, and will reimburse such Company Indemnified Party,
Underwriter Indemnified Party or Holder Indemnified Party for any legal or any
other expenses reasonably incurred in connection with investigating, preparing
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular, other document or amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Holder and expressly intended for use in such
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereof; provided, however, that the obligations of such
Holders hereunder shall be limited to an amount equal to the proceeds to each
such Holder of Registrable Securities sold as contemplated herein.
7.3 Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any
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such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall bear the expense of such defense of the Indemnified Party if
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interest. The failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, unless such failure is prejudicial to the
ability of the Indemnifying Party to defend the action. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation.
ARTICLE 8
LOCKUP AGREEMENT
8.1 In consideration for the Company agreeing to its obligations under
this Agreement, each Holder agrees:
(a) In connection with the Company's Initial Public Offering, upon
the request of the underwriters managing the underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of such underwriters for such period of time (not to exceed the period
commencing seven (7) days prior to the effective date of such registration and
ending one hundred and eighty (180) days after such effective date) as the
underwriters may specify; and
(b) In connection with any registration effected pursuant to Articles
2, 3 and 4 hereof, any Holder electing not to participate in, or withdrawing
from, such registration shall, upon the request of the underwriters managing the
offering of the Company's securities, not sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any Registrable
Securities (other than those included in such registration) without the prior
written consent of such underwriters until such period of time (not to exceed
the period commencing seven (7) days prior to the effective date of such
registration and ending ninety (90) days after such effective date) from the
effective date of such registration or, if earlier, until the distribution of
such securities is completed or the underwriters have sold all securities of the
Company allotted to them pursuant to such registration.
8.2 Notwithstanding Section 8.1 hereof, (i) no Holder shall have any
obligation to enter into the agreement described in Section 8.1 hereof unless
all executive officers and directors of the Company enter into similar
agreements, (ii) nothing herein shall prevent any Holder from making a
distribution of Registrable Securities to its affiliate that is otherwise in
compliance with applicable securities laws or, for any Holder that is a
partnership, from making a distribution of
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Registrable Securities to partners thereof that is otherwise in compliance with
applicable securities laws and (iii) nothing herein shall prevent any Holder
which is an SBIC from making a distribution or transfer of Registrable
Securities pursuant to applicable regulatory requirements under the SBIC Act.
ARTICLE 9
INFORMATION BY HOLDER
The Holder or Holders of Registrable Securities included in any
registration shall furnish in writing to the Company such information regarding
such Holder or Holders and the distribution proposed by such Holder or Holders
as the Company may request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
ARTICLE 10
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
securities of the Company to the public without registration, after such time as
a public market exists for the Common Stock of the Company, the Company agrees
to:
10.1 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 of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public; and
10.2 Use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (at any time after it has become subject to such reporting
requirements); and
10.3 So long as a Holder owns any Registrable Securities, furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
ninety (90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company as a Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing a Holder to sell any such securities
without registration.
13
ARTICLE 11
TRANSFER OF REGISTRATION RIGHTS
The rights to cause the Company to register securities granted to Holders
under Articles 2, 3 and 4 hereof may be assigned in connection with any
permitted transfer or assignment of the Holder's Registrable Securities. All
transferees and assignees of the rights to cause the Company to register
securities granted to Holders under Articles 2, 3 and 4 hereof, as a condition
to the transfer of such rights, shall agree in writing to be bound by the
agreements set forth herein.
ARTICLE 12
TERMINATION OF REGISTRATION RIGHTS
The rights granted and obligations imposed pursuant to this Agreement shall
terminate as to any Holder: (i) at such time, following the Company's
registration of its Common Stock under the Exchange Act, as such Holder holds
Registrable Securities constituting less than one percent (1%) of all
outstanding shares of the Company's Common Stock; (ii) when a registration
statement with respect to the sale of all of such Holder's Registrable
Securities shall have become effective under the Securities Act and such
Registrable Securities shall have been disposed of in accordance therewith;
(iii) at such time as all of such Holder's Registrable Securities may be
distributed pursuant to Rule 144 (or any successor provisions thereto) under the
Securities Act in any three-month period; (iv) when such Holder's Registrable
Securities shall have been otherwise transferred and subsequent disposition of
such Registrable Securities shall not require registration or qualification
under the Securities Act or any similar state law then in force; or (v) on the
fifth (5th) anniversary of the closing of the Company's first firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act covering the offering and sale of Common Stock to the
public; PROVIDED, HOWEVER, that the provisions of Article 10 hereof shall
survive for so long as any Holder continues to hold any Registrable Securities.
ARTICLE 13
LIMITATIONS ON REGISTRATION RIGHTS
GRANTED TO OTHER SECURITIES
The parties hereto agree that additional holders may, with the consent of
the Company and the Holders of at least seventy-five percent (75%) of the
Registrable Securities then outstanding, be added as parties to this Agreement
with respect to any or all securities of the Company held by them; provided,
however, that from and after the date of this Agreement, the Company shall not
without the prior written consent of the Holders of a majority of the
Registrable Securities then outstanding, enter into any agreement with any
holder or prospective holder of any securities of the Company providing for the
grant to such holder of registration rights superior to those granted herein.
Any additional parties shall execute a counterpart of this Agreement, and upon
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execution by such additional parties and by the Company, shall be considered
Holders for purposes of this Agreement, and shall be added to the Schedule of
Registration Rights Holders attached hereto as EXHIBIT A.
ARTICLE 14
MISCELLANEOUS
14.1 WAIVERS AND AMENDMENTS. With the written consent of the Company and
the holders of at least seventy-five percent (75%) of the Registrable Securities
then outstanding, the obligations and rights of the Company and the Holders
under this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively, and either for a specified
period of time or indefinitely) or amended; provided, however, that no such
waiver or amendment shall reduce the aforesaid number of shares the holders of
which are required to consent to any waiver or amendment, without the consent of
all the Holders . Upon the effectuation of each such waiver or amendment, the
Company shall promptly give written notice thereof to any Holders who have not
previously consented thereto in writing. This Agreement or any provision hereof
may be amended, waived, discharged or terminated only by a statement in writing
signed by the party against which enforcement of the amendment, waiver,
discharge or termination is sought, except to the extent provided in this
Section 14.1.
14.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within the state without giving effect to any
choice or conflicts of law principles that would cause the application of the
domestic substantive laws of any other jurisdiction.
14.3 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.
14.4 ENTIRE AGREEMENT. This Agreement amends, restates in its entirety and
supersedes the Amended Registration Rights Agreement and constitutes the full
and entire understanding and agreement among the parties hereto with regard to
the subject matter hereof. From and after the date hereof, the Amended
Registration Rights Agreement shall cease to be of force or effect.
14.5 NOTICES. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
upon delivery in person, or one business day after delivery by national
overnight courier service or by telecopier transmission with acknowledgment of
transmission receipt, or three (3) business days after deposit via certified or
registered mail, return receipt requested, in each case addressed (i) if to a
Holder, to the address set forth opposite such Holder's name on the signature
pages hereof or to such other address as such Holder shall have furnished to the
Company in writing, or (ii) if to the Company at its address as set forth on the
signature pages hereof or to such other address as the Company shall have
furnished to the Holders in writing, with a copy to the Company's legal counsel,
15
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, to the attention of Xxxxxx X. Xxxxxx, Esq.
14.6 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.
14.7 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
14.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
ARTICLE 15
AGGREGATION
Shares of capital stock of the Company owned by partnerships and
corporations having substantially common ownership interests or managed by the
same principals and owned by individual investors affiliated with one another
may be aggregated for the purposes of calculating the aggregate percentage of
capital stock of the Company owned by any Holder and any permitted transferee
hereunder.
[END OF TEXT]
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IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Registration Rights Agreement as a sealed instrument as of the day and year
first written above.
ADDRESS: COMPANY:
0000 Xxxxx Xxxx Xxxx TELETRAC, INC., a Delaware corporation
Xxxxx 000
Xxxxxxx, XX 00000
Attn: President By:____________________________________
Name:
Title:
HOLDERS:
Toronto Dominion Capital
00 Xxxx 00xx Xxxxxx XXXXXXX DOMINION CAPITAL
20th Floor (U.S.A.), INC.
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxx
By:______________________________________
Name:
Title:
Kingdon Capital Management
Corporation KINGDON ASSOCIATES, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxxx By: Kingdon Capital Management Corp.,
its general partner
By:____________________________
Name: Xxxx Xxxxxxx
Title: President
00
Xxxxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx XXXXXXX PARTNERS, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 By: Kingdon Capital Management Corp.,
Attn: Xxxxxxx Xxxxxxxxxxx its general partner
By:____________________________
Name: Xxxx Xxxxxxx
Title: President
Kingdon Capital Management
Corporation X. XXXXXXX OFFSHORE NV
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 By: Kingdon Capital Management Corp.,
Attn: Xxxxxxx Xxxxxxxxxxx its investment advisor
By:____________________________
Name: Xxxx Xxxxxxx
Title: President
Burr, Egan, Deleage & Co. ALTA SUBORDINATED DEBT
One Embarcadero Center PARTNERS III, L.P.
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 By: Alta Subordinated Debt Management
Attn: Xxxxxx X. Xxxxxx III, L.P.
By:_________________________
General Partner
Burr, Egan, Deleage & Co. ALTA V LIMITED PARTNERSHIP
One Embarcadero Center
Suite 4050 By: Alta V Management Partners, L.P.
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
By:_________________________
General Partner
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Burr, Egan, Deleage & Co. CUSTOMS HOUSE PARTNERS
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx By:_____________________________
General Partner
Burr, Egan, Deleage & Co. ALTA COMMUNICATIONS VI, L.P.
One Embarcadero Center
Suite 4050 By: Alta Communications VI Management
Xxx Xxxxxxxxx, XX 00000 Partners, L.P.
Attn: Xxxxxx X. Xxxxxx
By:_____________________________
General Partner
Burr, Egan, Deleage & Co. ALTA COMM S by S, LLC
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 By:_____________________________
Attn: Xxxxxx X. Xxxxxx Member
EOS Partners SBIC, L.P. EOS PARTNERS SBIC, L.P.
000 Xxxxxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000 By: EOS SBIC General, L.P.
Attn: Xxxx X. Xxxxxx
By:_________________________
Name: Xxxx Xxxxxx
Title: General Partner
Associated RT, Inc. ASSOCIATED RT, INC.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx By:_________________________________
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
BancBoston Ventures, Inc. BANCBOSTON VENTURES INC.
19
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
By:_____________________________
Name:
Title:
Northwood Ventures NORTHWOOD VENTURES
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx By:______________________________
CHESTNUT HILL WIRELESS, INC.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
By:________________________________
Name:
Title:
Westbury Capital Partners WESTBURY CAPITAL PARTNERS, L.P.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000 By: Westbury MGP, L.P., its
Attn: Xxxxxxx Xxxxx general partner
By: X.X. Xxxx Co.
By:____________________________
Name:
Title:
00
Xxxxxx Xxxxxxx Xxxxxxxx XXXXXX CAPITAL VENTURES
Xxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxxx
By:_________________________________
Name:
Title:
000 X.X. Xxxxx Xxxxxx XXXX XXXXX XXXXXX LIMITED
Xxxxx 0000 XXXXXXXXXXX
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx XX By: High Point Management, Inc.,
its general partner
By:____________________________
Name:
Title:
S.W. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attn: X. X. Xxxxxx
By:_________________________________
X.X. Xxxxxx
S.W. Fifth Avenue
Suite 1220
Xxxxxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx XX
By:_________________________________
Xxxxxxx X. Xxxxxx XX
Xxxxx X. Queen
c/o Teletrac, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 ____________________________________
Xxxxx X. Queen
21
Xxxxxx X. Xxxxxxx
c/o Teletrac, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 ____________________________________
Xxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxxx
c/o Teletrac, Inc.
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 ____________________________________
Xxxxxxxx X. Xxxxxxxx
Mrs. T.N. Xxxxxxxxxxx
00 Xxxxxxxx Xxxx ____________________________________
Xxx Xxx Chuen Mrs. T.N. Xxxxxxxxxxx
Kowloon
Hong Kong
Xxxxx Xxxxxxx
00 Xxxxxxx Xxxxxx ____________________________________
Xxxxxxxxx Xxxxxx, XX 00000 Xxxxx Xxxxxxx
c/o Kirkland & Xxxxx K&E PARTNERS II
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
By:_________________________________
Partner
00 Xxxxxxxxxxx Xxxxx XXXXXX, XXXXXXXXX, HEWITT,
Xxx Xxxx, XX 00000 XXXXXXX & KRISTOL
Attn: Xxxxxx X. Xxxxxx, Esq.
By:_________________________________
Partner
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