REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
July 20, 2000 between United Road Services, Inc., a Delaware corporation (the
"Company"), Blue Truck Acquisition, LLC, a Delaware limited liability company
("Blue Truck"), and CFE, Inc., a Delaware corporation ("CFE" and together with
Blue Truck, the "Investors").
WHEREAS, the Company and Blue Truck have entered into that certain
Purchase Agreement, dated as of April 14, 2000 (as amended, the "Blue Truck
Purchase Agreement"), pursuant to which the Company is issuing and selling
$25,000,000 worth of its shares of Series A Participating Convertible Preferred
Stock (the "Series A Preferred Stock") to Blue Truck;
WHEREAS, the Company and CFE have entered into that certain Purchase
Agreement, dated as of July 20, 2000 (the "CFE Purchase Agreement" and together
with the Blue Truck Purchase Agreement, the "Purchase Agreements"), pursuant to
which the Company is issuing and selling $2,000,000 worth of its shares of
Series A Preferred Stock to CFE;
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Purchase Agreements.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Certificate of Designations" means the Certificate of Powers,
Designations, Preferences and Rights of the Series A Preferred Stock issued by
the Company.
(b) "Closing" means the closing of the sale and purchase of Series A
Preferred Stock by the Company to the Investors.
(c) "Common Stock" means the common stock, par value $0.01 per
share, of the Company.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
(e) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any similar "short form" registration statement
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
(f) "Holder" means any Person owning or having the right to acquire
Registrable Securities, or any assignee thereof in accordance with Section 11
hereof.
(g) "Initiating Holders" means the Holder(s) initiating a
registration request under Section 2(a) hereof.
(h) "Investor Request" means a request from (i) Blue Truck or any
Holders that in the aggregate beneficially own at least twenty-five percent
(25%) of the Registrable Securities outstanding as of the date of such request,
which percentage shall be determined based on the conversion described in
Section 5 of the Certificate of Designations, that the Company file a
registration statement under the Securities Act with respect to the Registrable
Securities or (ii) CFE.
(i) "Investors' Agreement" means the Investors' Agreement entered
into as of the date hereof between the Company and Blue Truck.
(j) "majority in interest of the Initiating Holders" means
Initiating Holders holding a majority of the Registrable Securities held by all
Initiating Holders.
(k) "Person" means any individual, partnership, limited liability
company, joint venture, corporation, association, trust or any other entity or
organization.
(l) "Preferred Shares" means shares of Series A Preferred Stock of
the Company owned by an Investor or any assignee thereof in accordance with
Section 11 hereof.
(m) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(n) "Registrable Securities" means (1) any shares of Common Stock
directly or indirectly issuable or issued upon conversion of the Preferred
Shares, (2) any shares of Common Stock hereafter acquired by the Investors (or
any assignee thereof in accordance with Section 11) and (3) any shares of Common
Stock issued to the Investors (or any assignee thereof in accordance with
Section 11) as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such Common Stock or
other warrants, rights or securities; provided, however, that any Registrable
Securities sold by an Investor in a transaction in which such Investor's rights
under this Agreement are not assigned pursuant to Section 11 below shall cease
to be Registrable Securities from and after the time of such sale.
(o) "SEC" means the Securities and Exchange Commission.
(p) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
(q) "Violation" means any of the following statements, omissions or
violations: (i) any untrue statement or alleged untrue statement of a material
fact contained in a registration statement filed pursuant to this Agreement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto or any documents filed under state
securities or "blue sky" laws in connection therewith, or (ii) the omission or
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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 such statements were made, not misleading.
2. Request for Registration.
(a) If the Company shall receive a written Investor Request, then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and, subject to the limitations of Section
2(c) below, file (as expeditiously as practicable, and in any event within sixty
(60) days after the receipt of such request) and use its best efforts to have
declared effective a registration statement under the Securities Act with
respect to all Registrable Securities which the Holders request to be registered
by the giving of notice to the Company within thirty (30) days after the mailing
of the Company's notice referred to above, each such notice to be given in
accordance with Section 18 below.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2
and the Company shall include such information in the written notice referred to
in Section 2(a); provided, however, that notwithstanding anything herein to the
contrary, in no event shall the Company be required to effect more than one
underwritten offering in any 12 month period. In the event of an underwritten
offering, the right of any Holder to include such Holder's Registrable
Securities in such registration 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 Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section 4(e))
enter into an underwriting agreement in customary form with the underwriter or
underwriters so selected for such underwriting by a majority in interest of the
Initiating Holders; provided, however, that no Holder shall be required to make
any representations, warranties or indemnities except as they relate to such
Holder's ownership of shares and authority to enter into the underwriting
agreement and to such Holder's intended method of distribution, and the
liability of such Holder (whether by indemnification, contribution or otherwise)
shall be limited to an amount equal to the net proceeds from the offering
received by such Holder. Notwithstanding any other provision of this Section 2,
if the underwriter advises the Initiating Holders that marketing factors require
a limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise the Company and the Company shall so advise all Holders
of Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be included in the
underwriting shall be allocated as follows: (i) first, among the Holders of
Registrable Securities that have elected to participate in such underwritten
offering, in proportion (as nearly as practicable) to the amount of Registrable
Securities owned by such Holders until such Holders have included in the
underwriting all shares requested by such Holders to be included and (ii)
thereafter among any other holders of Common Stock who have exercised their
piggyback registration rights, if permitted hereunder, with respect to such
registration.
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(c) The Company shall be obligated to effect only four (4)
registrations pursuant to an Investor Request under this Section 2 provided,
however, that the Company shall not be obligated to effect more than one (1)
registration pursuant to this Section 2 in any six (6) month period; provided,
further, that (x) CFE shall be entitled to demand only one (1) and Blue Truck
shall be entitled to demand only three (3) of such four (4) registrations and
(y) Blue Truck or any of its Permitted Transferees eligible to make an Investor
Request shall be entitled to make an Investor Request only with respect to at
least twenty-five percent (25%) of the Registrable Securities outstanding as of
such request. A registration which does not become and remain effective
throughout the proposed plan of distribution or six (6) months, whichever is
shorter, will not be considered one of the four (4) registrations required to be
effected by the Company according to this Section 2(c). The Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to this Section 2 if the registration request is subsequently withdrawn at the
request of a majority of the Initiating Holders of the Registrable Securities to
be registered (in which case all Initiating Holders shall bear such expenses pro
rata based upon the number of Registrable Securities that were to be requested
in the withdrawn registration by the Initiating Holders); provided, however,
that if at the time of such withdrawal, the Initiating Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
different from that known to the Initiating Holders at the time of their request
and have withdrawn the request with reasonable promptness following disclosure
by the Company of such material adverse change, then the Initiating Holders
shall not be required to pay any of such expenses and shall retain their rights
pursuant to this Section 2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
the Initiating Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for up to sixty (60) days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right for more than an aggregate of one hundred twenty (120) days in any twelve
(12) month period; provided, further, that if at the time of any Investor
Request for a registration pursuant to this Section 2, the Company has fixed
plans (following a resolution of the Board of Directors of the Company so
authorizing) to file within sixty (60) days after such request a registration
statement covering the sale of any of its securities in a public offering under
the Securities Act, no registration shall be required to be initiated pursuant
to this Section 2 until ninety (90) days after the effective date of such
Company registration unless the Company is no longer proceeding diligently to
effect such registration and so long as the Company shall provide the Holders
with the right to participate in such public offering pursuant to, and subject
to, Section 3.
(e) Upon the request of a majority of the Initiating Holders for the
termination of a registration, the Company shall terminate such registration and
such registration shall not be considered one of the four (4) registrations
required under Section 2(c); provided, that the Initiating Holders pay the
expenses of such registration in accordance with Section 2(c) unless excused
from doing so under the proviso set forth in Section 2(c).
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3. Company Registration. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for stockholders other than Holders of Registrable
Securities) any of its Common Stock under the Securities Act in connection with
the public offering of such Common Stock for cash (other than a registration on
Form S-8 (or similar or successor form) relating to the sale of securities to
participants in a Company stock plan or to other compensatory arrangements to
the extent includable on Form S-8 (or similar or successor form), or a
registration on Form S-4 (or similar or successor form)), the Company shall, at
such time, promptly give each Holder written notice of such registration. Upon
the written request of each Holder given within twenty (20) days after mailing
of such notice by the Company in accordance with Section 18, the Company shall,
subject to the provisions of Section 9, use its best efforts to cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested to be registered. The Company shall have no obligation
under this Section 3 to make any offering of its securities, or to complete an
offering of its securities that it proposes to make.
4. Obligations of the Company. Whenever required under this Agreement
to effect the egistration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective promptly, and, upon the request of
the Holders of a majority of the Registrable Securities being registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days or until the Holders have completed the distribution referred
to in such registration statement, whichever occurs first (but in any event for
at least any period required under the Securities Act); provided that before
filing such registration statement or any amendments thereto, the Company will
furnish to the Holders copies of all such registration statements or amendments
thereto proposed to be filed.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case without exhibits unless requested by such Holders), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as any of the
Holders may reasonably request in order to facilitate the disposition of
Registrable Securities owned by them.
(d) 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 states or 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 (i) to qualify to do business in any state or
jurisdiction where it would not otherwise be required to qualify but for the
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requirements of this clause (d), or (ii) to file a general consent to service of
process in any such state or jurisdiction.
(e) 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 underwriter of such offering.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
were made, not misleading.
(g) Notify each Holder of Registrable Securities covered by such
registration statement and such Holder's underwriters, if any, and confirm such
advice in writing: (i) when the registration statement has become effective,
(ii) when any post-effective amendment to the registration statement becomes
effective and (iii) of any request by the SEC for any amendment or supplement to
the registration statement or prospectus or for additional information.
(h) Notify each Holder of Registrable Securities if at any time the
SEC should institute or threaten to institute any proceedings for the purpose of
issuing, or should issue, a stop order suspending the effectiveness of the
Registration Statement. Upon the occurrence of any of the events mentioned in
the preceding sentence, the Company will use its best efforts to prevent the
issuance of any such stop order or to obtain the withdrawal thereof as soon as
possible. The Company will advise each Holder of Registrable Securities promptly
of any order or communication of any public board or body addressed to the
Company suspending or threatening to suspend the qualification of any
Registrable Securities for sale in any jurisdiction.
(i) (x) cause to be delivered an opinion of the counsel representing
the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the Holders and, if applicable, the underwriters, and (y) use its
commercially reasonable efforts to cause to be delivered, on the date that the
registration statement with respect to such securities becomes effective, a
"comfort" letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to (i) the underwriters in an
underwritten public offering, addressed to the underwriters, and, a
reaffirmation of such letter on the date that such Registrable Securities are
delivered to the underwriters for sale or (ii) in the case of an offering that
is not an underwritten public offering, to the Holders.
(j) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an
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earnings statement (which need not be audited) covering a period of at least
twelve (12) months beginning after the effective date of the registration
statement and otherwise complying with Section 11(a) of the Securities Act.
(k) List, if the Company meets the applicable listing requirements,
the Registrable Securities subject to Section 2 on the National Market System of
the Nasdaq Stock Market, and on each national securities exchange or automated
quotation system upon which the shares to be registered are traded.
5. Amendments, Supplements to Prospectus. Immediately upon receipt of a
notice referred to in Section 4(f) hereof, each Holder agrees to (i) cease
making sales of securities pursuant to any then effective registration statement
or any prospectus contained therein until it has received from the Company an
amendment or supplement to the registration statement or prospectus and (ii) to
promptly deliver to the Company any copies of the registration statement or such
prospectus then in its possession.
6. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
7. Expenses of Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including (without limitation) all
registration, filing and qualification fees, printers' fees, fees and expenses
of counsel and accountants for the Company and the reasonable fees and
disbursements of one counsel for the selling Holders, shall be borne by the
Company, even if such registrations, filings, or qualifications do not become
effective, subject to Section 2(c).
8. Underwriting Requirements. In connection with any underwritten
offering initiated by the Company or any stockholder other than a Holder of
Registrable Securities, the Company shall not be required under Section 3 to
include any Holder's securities in such underwriting unless such Holder accepts
the terms of the underwriting as agreed upon between the Company or such
stockholder and the underwriters selected by the Company or such stockholder,
and then only in such quantity as will not, in the opinion of the underwriters,
have an adverse effect on such offering by the Company; provided, however, that
no Holder participating in such underwriting shall be required to make any
representations, warranties or indemnities except as they relate to such
Holder's ownership of shares and authority to enter into the underwriting
agreement and to such Holder's intended method of distribution, and the
liability of such Holder (whether by indemnification, contribution or otherwise)
shall be limited to an amount equal to the net proceeds from the offering
received by such Holder. If a Holder complies with the requirements set forth in
this Section 8, then such Holder shall have the right to be included in any
underwritten offering by the Company, whether initiated by the Company or any
stockholder, subject to the terms of Sections 2 and 3 and to the limitations set
forth below in this Section 8. If the total number of securities, including
Registrable Securities, requested by
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stockholders to be included in such offering exceeds the largest number of
securities that the underwriters reasonably believe can be sold without having
an adverse effect on such offering, then the Company shall be required to
include in the offering only that number of such securities, including
Registrable Securities, which the underwriters believe will not have an adverse
effect on such offering. The securities of the Holders included shall be
allocated (i) first, among all Holders of Registrable Securities that have
elected to participate in such underwritten offering and other holders of Common
Stock who, by agreement in effect as of the date of the Closing, do not have
their priority below that of the Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities and Common Stock,
respectively, owned by such holders until such holders have included in the
underwriting all shares requested by such holders to be included and (ii)
thereafter among any other holders of Common Stock who have exercised their
piggyback registration rights, if permitted hereunder, with respect to such
registration.
9. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder, its
heirs, personal representatives and assigns, each of such Holder's officers,
directors, partners, employees and affiliates, any underwriter (as defined in
the Securities Act) for such Holder and each Person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange Act or
other federal or state securities law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon a
Violation; and the Company will pay to each such indemnified party, as incurred,
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 9(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case to a particular indemnified party for any
such loss, claim, damage, liability or action to the extent that it arises out
of or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by such indemnified party.
(b) Each selling Holder will indemnify and hold harmless the
Company, each of its directors, each of its officers, each Person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder (and any affiliate thereof) selling securities in such
registration statement and any controlling Person of any such underwriter or
other Holder, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing Persons may become subject, under the
Securities Act, the Exchange Act or other federal or state securities law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any Person intended
to be indemnified pursuant to this Section 9(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
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provided, however, that the indemnity agreement contained in this Section 9(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided, further,
that in no event shall the liability of any Holder under this Section 9(b) or
otherwise in connection with the offering exceed the net proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel (but no more than one separate counsel,
plus any required local counsel) with the fees and expenses to be paid by the
indemnifying party, if in the reasonable opinion of counsel to an indemnified
party, representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflicts
of interests between, or different defenses available to, such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such indemnifying party of
any liability to the indemnified party under this Section 9 except if, and only
to the extent that, the indemnifying party is actually prejudiced thereby.
(d) The obligations of the Company and Holders under this Section 9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement.
(e) Any indemnity agreements contained herein shall be in addition
to any other rights to indemnification or contribution which any indemnified
party may have pursuant to law or contract and shall remain operative and in
full force and effect regardless of any investigation made or omitted by or on
behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified party
than the amount hereinafter calculated, then, in lieu of indemnifying such
indemnified party, the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect not only
the relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue
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statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by or on behalf of the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. Notwithstanding anything to the contrary in this Section 9,
no Holder shall be required, pursuant to this Section 9 or otherwise in
connection with the offering, to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Common Stock in
the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.
10. Reports Under the Exchange Act. With a view to making available to
the Holders the benefits of Rule 144 under the Securities Act and any other rule
or regulation of the SEC that may at any time permit a Holder to sell securities
of the Company to the public without registration or pursuant to a registration
on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) remain registered under the Exchange Act and file with the SEC
in a timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 or that
it qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
11. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may be assigned in
whole or in part to any Person acquiring Registrable Securities from a Holder in
compliance with the applicable provisions of any relevant agreement between such
Holder and the Company, including with respect to Blue Truck the Investors'
Agreement, provided that such transferee or assignee delivers to the Company a
written instrument by which such transferee or assignee agrees to be bound by
the obligations imposed on Holders under this Agreement to the same extent as if
such transferee or assignee was a party hereto.
12. Amendment; Waiver. Any provision of this Agreement may be amended
only with the written consent of the Company and each of the Holders. The
observance of any provision of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the party to be charged. Any amendment or waiver effected
in accordance with this Section 12 shall be binding upon
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each Holder of Registrable Securities at the time outstanding, each future
Holder of all such securities, and the Company.
13. Changes in Registrable Securities. If, and as often as, there are
any changes in the Registrable Securities by way of stock split, stock dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.
14. No Inconsistent Agreements. The Company represents and warrants
that it has not granted to any Person the right to request or require the
Company to register any securities issued by the Company, other than the rights
granted to the Holders herein, the rights granted pursuant to the Amended and
Restated Registration Rights Agreement dated April 14, 2000 between the Company
and Charter URS LLC (the "Charter Agreement") and the rights disclosed in public
filings or on Schedule 2.20(b) of the Purchase Agreements, which rights are not
greater than the rights granted to the Holders herein. The Company shall not
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or grant any additional
registration rights to any Person or with respect to any securities which are
not Registrable Securities which are prior in right to, equal in right to or
inconsistent with the rights granted in this Agreement, and any such attempted
agreements or grants shall be null and void and of no effect. Notwithstanding
the foregoing, this paragraph 14 shall in no way diminish, alter or otherwise
modify the rights granted to Charter URS LLC pursuant to the Charter Agreement.
15. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof. Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
16. Governing Law. This Agreement shall be governed in all respects by
the laws of the State of New York as such laws are applied to agreements between
New York residents entered into and to be performed entirely within New York.
17. Successors and Assigns. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns (as provided
in Section 11), heirs, executors and administrators of the parties hereto.
18. Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon receipt by the party to be notified (including by
telecopier, receipt confirmed) or three (3) days after deposit with the United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified (a) if to a party other than the Company,
at such party's address set forth at the end of this Agreement or at such other
address as such party shall have
11
furnished to the Company in writing, or (b) if to the Company, at its address
set forth at the end of this Agreement, or at such other address as the Company
shall have furnished to the parties in writing.
19. Effectiveness. Notwithstanding anything to the contrary contained
in this Agreement, this Agreement shall not become effective, and the Investors
shall have no rights hereunder, unless and until the Closing has occurred.
20. Severability. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part hereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this Agreement
shall be judicially determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
21. Titles and Sub-titles. The titles and sub-titles of the Sections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
22. Delays or Omissions; Remedies Cumulative. It is agreed that no
delay or omission to exercise any right, power or remedy accruing to the
parties, upon any breach or default of another party under this Agreement, shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach or default, or any acquiescence therein, or of any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. It is further agreed that any waiver, permit, consent
or approval of any kind or character by a party of any breach or default under
this Agreement, or any waiver by a party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to a party, shall be cumulative and
not alternative.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
12
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first above written.
UNITED ROAD SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address:
-------
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
BLUE TRUCK ACQUISITION, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name: Xxxxxxx Xxxxxx
Title: President
Address:
-------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
CFE, INC.
By: /s/ Xxxxxxx X. Xxxxxx III
-------------------------
Name: Xxxxxxx X. Xxxxxx III
Title: Duly Authorized Signatory
Address:
-------
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with copies to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
CFE, Inc.
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X.X. Xxxxxxx
Telecopy: (000) 000-0000
