FORM OF REGISTRATION RIGHTS AGREEMENT*
Exhibit 4.3
FORM OF REGISTRATION RIGHTS AGREEMENT*
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of September 11, 2008, by
and among Telvent GIT, S.A., a sociedad anonima organized under the laws of the Kingdom of Spain,
with headquarters located at Xxxxxxxxx, 0, 00000 Xxxxxxxxxx, Xxxxxx, Xxxxx (the
“Company”), and the undersigned purchasers (each, a “Purchaser”, and collectively,
the “Purchasers”).
WHEREAS:
A. In connection with the Purchase Agreement by and among the parties hereto of even date
herewith (the “Purchase Agreement”), the Company has agreed, upon the terms and subject to
the conditions set forth in the Purchase Agreement, to issue and sell to each Purchaser at the
Closing (as defined in the Purchase Agreement) ordinary shares (the “Shares”), nominal
value €3.00505 per share (the “Ordinary Shares”) of the Company upon the terms and
conditions set forth in the Purchase Agreement.
B. To induce the Purchasers to execute and deliver the Purchase Agreement, the Company has
agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar successor statute (collectively, the “1933
Act”), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each of the Purchasers hereby agree as follows:
SECTION 1. Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the following terms shall
have the following meanings:
1.1 “Business Day” means any day other than Saturday, Sunday or any other day on which
commercial banks in The City of New York, New York or Madrid, Spain are authorized or required by
law to remain closed.
1.2 “Commission” means the United States Securities and Exchange Commission.
1.3 “Effective Date” means the date that the Registration Statement (as defined below)
has been declared effective by the Commission.
1.4 “Effective Deadline” means the date which is 90 days after the Filing Deadline (as
defined below), or if there is a full review of the Registration Statement by the Commission, 120
days after the Filing Deadline.
| * | The Exhibits, Appendices and Schedules to this form of registration rights agreement have not been filed with this agreement. Pursuant to Item 601(b)(2) of Regulation S-K, such documents are immaterial to an investment decision. A copy of any of these omitted documents will be furnished to the Commission by Telvent upon the Commission’s request. |
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1.5 “Filing Deadline” means ninety (90) days following the Closing Date.
1.6 “Investor” means a Purchaser or any transferee or assignee of the Shares, as
applicable, to whom a Purchaser assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section 8 and any transferee or
assignee thereof to whom a transferee or assignee of the Shares, as applicable, assigns its rights
under this Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 8.
1.7 “Person” means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government or any department
or agency thereof.
1.8 “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration Statements (as defined
below) in compliance with the 1933 Act and pursuant to Rule 415 and the declaration of
effectiveness of such Registration Statement(s) by the Commission.
1.9 “Registrable Securities” means the Shares and any share capital of the Company
issued or issuable with respect to the Shares as a result of any share split, share dividend,
recapitalization exchange or similar event.
1.10 “Registration Statement” means a registration statement or registration
statements of the Company required to be filed under the 1933 Act covering the Registrable
Securities.
1.11 “Required Holders” means the holders of at least a majority of the Registrable
Securities.
1.12 “Rule 415” means Rule 415 under the 1933 Act or any successor rule providing for
offering securities on a continuous or delayed basis.
SECTION 2. Registration.
2.1 Mandatory Registration. The Company shall as soon as practicable, but in no event
later than the Filing Deadline, prepare and file with the Commission the Registration Statement on
Form F-3 relating to the resale of all of the Registrable Securities for an offering to be made on
a continuous basis pursuant to Rule 415 on the NASDAQ Global Select Market, or the facilities of
any national securities exchange on which the Ordinary Shares are then traded, or in privately
negotiated transactions. The Company shall use its reasonable best efforts, subject to receipt of
necessary information from the Investors, to cause the Commission to declare the Registration
Statement effective by the Effective Deadline.
2.2 Ineligibility for Form F-3. In the event that Form F-3 is not available for the
registration of the resale of Registrable Securities hereunder, the Company shall (i) register the
resale of the Registrable Securities on another appropriate form
reasonably acceptable to the Required Holders and (ii) undertake to register the Registrable
Securities on Form F-3 as soon as such form is available, provided that the Company shall maintain
the effectiveness of the
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Registration Statement then in effect until such time as a Registration
Statement on Form F-3 covering the Registrable Securities has been declared effective by the
Commission.
2.3 Delay in Filing or Effectiveness of Registration Statement. If the Registration
Statement is not filed by the Company with the Commission on or prior to the Filing Deadline, then
for each day following the Filing Deadline, until but excluding the date the Registration Statement
is filed, or if the Registration Statement is not declared effective by the Commission by the
Effective Deadline, then for each day following the Effective Deadline, until but excluding the
date the Commission declares the Registration Statement effective, the Company shall, for each such
day, pay the Investor with respect to any such failure, as liquidated damages and not as a penalty,
an amount per 30-day period equal to 1.0% of the purchase price paid by such Investor for its
Shares pursuant to this Agreement, but only in respect to such Shares that are not eligible
(without any volume limitations or other restrictions) for sale pursuant to Rule 144 or any other
rule of similar effect; and for any such 30-day period, such payment shall be made no later than
three business days following such 30-day period. If the Investor shall be prohibited from selling
Shares under the Registration Statement as a result of a Suspension of more than thirty (30) days
or Suspensions on more than two (2) occasions which in the aggregate are more than thirty (30) days
in any 12-month period, then for each day on which a Suspension is in effect that exceeds the
maximum allowed period for a Suspension or Suspensions, but not including any day on which a
Suspension is lifted, the Company shall pay the Investor, as liquidated damages and not as a
penalty, but only in respect to such Shares that are not eligible (without any volume limitations
or other restrictions) for sale pursuant to Rule 144 or any other rule of similar effect, an amount
per 30-day period equal to 1.0% of the purchase price paid by such Investor for its Shares pursuant
to this Agreement for each such day, and such payment shall be made no later than the first
business day of the calendar month next succeeding the month in which such day occurs. For
purposes of this Section 2.3, a Suspension shall be deemed lifted on the date that notice that the
Suspension has been lifted is delivered to the Investor pursuant to Section 2.3 of this Agreement.
Notwithstanding the foregoing provisions, in no event shall the Company be obligated to pay any
liquidated damages pursuant to this Section 2.3 to more than one Investor in respect of the same
Shares for the same period of time or (ii) in an aggregate amount that exceeds 10% of the purchase
price paid by the Investors for the Shares pursuant to this Agreement. Such payments shall be made
to the Investors in cash.
SECTION 3. Related Obligations.
3.1 At such time as the Company is obligated to file a Registration Statement with the
Commission pursuant to Section 2.1, the Company shall also be obligated to:
(a) promptly prepare and file with the Commission such amendments and supplements to the
Registration Statement and the prospectus used in connection therewith as may be necessary to keep
the Registration Statement effective until the earliest of (i) one year after the effective date of
the Registration Statement or (ii) such time as the Shares become
eligible for resale by each of the Investors without any volume limitations or other
restrictions pursuant to Rule 144 under the Securities Act or any other rule of similar effect;
provided that, for the avoidance of doubt, in no event shall the Company have any obligation to
keep the Registration Statement effective after such time as all of the Shares have been sold
pursuant to the Registration Statement or Rule 144 or any other rule of similar effect;
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(b) furnish to the Investor with respect to the Shares registered under the Registration
Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses
and such other documents as the Investor may reasonably request, in order to facilitate the public
sale or other disposition of all or any of the Shares by the Investor;
(c) file documents required of the Company for normal Blue Sky clearance in states specified
in writing by the Investor; provided, however, that the Company shall not be
required to qualify to do business or consent to service of process in any jurisdiction in which it
is not now so qualified or has not so consented;
(d) bear all expenses in connection with the procedures in Section 2.1 and paragraphs (a)
through (c) of this Section 3.1 and the registration of the Shares pursuant to the Registration
Statement, other than fees and expenses, if any, of counsel or other advisers to the Investors or
underwriting discounts, brokerage fees and commissions incurred by the Investors, if any in
connection with the offering of the Shares pursuant to the Registration Statement;
(e) file a Form D with respect to the Shares as required under Regulation D and to provide a
copy thereof to the Investor promptly after filing;
(f) issue a press release describing the transactions; and
(g) in order to enable the Investors to sell the Shares under Rule 144 under the Securities
Act, for a period of one year from Closing, use its commercially reasonable efforts to comply with
the requirements of Rule 144, including without limitation, use its commercially reasonable efforts
to comply with the requirements of Rule 144(c)(1) with respect to public information about the
Company and to timely file all reports required to be filed by the Company under the Securities
Exchange Act of 1934, as amended and the rules and regulations thereunder, or any similar successor
statute (collectively, the “1934 Act”).
The Company understands that the Investor disclaims being an underwriter, but the Investor
being deemed an underwriter shall not relieve the Company of any obligations it has hereunder. A
draft of the proposed form of the questionnaire related to the Registration Statement to be
completed by the Investor is attached hereto as Appendix I.
SECTION 4. Obligations of the Investors.
4.1 Experience. The Investor has completed or caused to be completed the Registration
Statement Questionnaire attached hereto as part of Appendix I, for use in preparation of
the Registration Statement, and the answers thereto are true and correct as of the date hereof and
will be true and correct as of the effective date of the Registration
Statement and the Investor will notify the Company immediately of any material change in any
such information provided in the Registration Statement Questionnaire until such time as the
Investor has sold all of its Shares or until the Company is no longer required to keep the
Registration Statement effective.
4.2 Transfer of Shares After Registration. The Investor agrees that it will not
effect any disposition of the Shares or its right to purchase the Shares that would constitute a
sale within the meaning of the Securities Act or pursuant to any applicable state securities laws,
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except as contemplated in the Registration Statement referred to in Section 2.1 or as otherwise
permitted by law, and that it will promptly notify the Company of any changes in the information
set forth in the Registration Statement regarding the Purchaser or its plan of distribution.
4.3 Public Sale or Distribution. The Investor hereby covenants with the Company not
to make any sale of the Registrable Shares under the Registration Statement without complying with
the provisions of this Agreement and without effectively causing the prospectus delivery
requirement under the Securities Act to be satisfied (whether physically or through compliance with
Rule 172 under the Securities Act or any similar rule), and the Investor acknowledges and agrees
that such Shares are not transferable on the books of the Company unless the certificate submitted
to the transfer agent evidencing the Registrable Securities is accompanied by a separate
Purchaser’s Certificate of Subsequent Sale: (i) in the form of Appendix II hereto, (ii)
executed by an officer of, or other authorized Person designated by, the Investor, and (iii) to the
effect that (A) the Registrable Securities have been sold in accordance with the Registration
Statement, the Securities Act and any applicable state securities or “blue sky” laws and (B) the
prospectus delivery requirement effectively has been satisfied. The Investor acknowledges that
there may occasionally be times when the Company must suspend the use of the prospectus (the
“Prospectus”) forming a part of the Registration Statement (a “Suspension”) until
such time as an amendment to the Registration Statement has been filed by the Company and declared
effective by the Commission, or until such time as the Company has filed an appropriate report with
the Commission pursuant to the 1934 Act. Without the Company’s prior written consent, which
consent shall not unreasonably be withheld or delayed, the Investor shall not use any written
materials to offer the Registrable Securities for resale other than the Prospectus, including any
“free writing prospectus” as defined in Rule 405 under the 1933 Act. The Investor covenants that
it will not sell any Shares pursuant to said Prospectus during the period commencing at the time
when Company gives the Investor written notice of the Suspension of the use of said Prospectus and
ending at the time when the Company gives the Investor written notice that the Investor may
thereafter effect sales pursuant to the Prospectus. Notwithstanding the foregoing, the Company
agrees that no Suspension shall be for a period of longer than 45 consecutive days, and any one or
more Suspensions shall not be for a period longer than 60 days in the aggregate in any 365 day
period. The Investor further covenants to notify the Company promptly of the sale of all of its
Shares.
4.4 Confidentiality. The Investor shall maintain in confidence the receipt and
content of any notice of a Suspension (as defined in Section 4.3 above).
SECTION 5. Indemnification.
5.1 For the purpose of this Section 5.1:
(i) the term “Investor/Affiliate” shall mean any affiliate of
the Investor, including a transferee who is an affiliate of the
Investor, and any Person who controls the Investor or any affiliate of
the Investor within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act; and
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(ii) the term “Registration Statement” shall include any
preliminary prospectus, final prospectus, free writing prospectus,
exhibit, supplement or amendment included in or relating to, and any
document incorporated by reference in, the Registration Statement
referred to in this Agreement.
(a) The Company agrees to indemnify and hold harmless each Investor and each
Investor/Affiliate, against any losses, claims, damages, liabilities or expenses, joint or several,
to which the Investor or Investor/Affiliates may become subject, under the 1933 Act, the 1934 Act,
or any other U.S. federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof as contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration Statement, including
the Prospectus, financial statements and schedules, and all other documents filed as a part
thereof, as amended at the time of effectiveness of the Registration Statement, including any
information deemed to be a part thereof as of the time of effectiveness pursuant to paragraph (b)
of Rule 430A, or pursuant to Rules 430B, 430C or 434, of the Rules and Regulations, or the
Prospectus, in the form first filed with the Commission pursuant to Rule 424(b) of the Regulations,
or filed as part of the Registration Statement at the time of effectiveness if no Rule 424(b)
filing is required or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in any of them a material fact required to be stated therein
or necessary to make the statements in the Registration Statement or any amendment or supplement
thereto not misleading or in the Prospectus or any amendment or supplement thereto not misleading
in light of the circumstances under which they were made, and will promptly reimburse each Investor
and each Investor/Affiliate for any legal and other expenses as such expenses are reasonably
incurred by such Investor or such Investor/Affiliate in connection with investigating, defending or
preparing to defend, settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the Company will not be liable for
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,
and the Company will not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon (i) an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus
or any amendment or supplement thereto in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Investor expressly for use therein, or (ii) the
failure of such Investor to comply with the covenants and agreements in Sections 4.2 or 4.3 hereof
respecting the sale of the Shares, or
(iii) any statement or omission in any Prospectus that is corrected in any subsequent
Prospectus that was delivered to the Investor prior to the pertinent sale or sales by the Investor;
provided, however, that the Company’s liability to an Investor under this Section
5.1 shall not exceed the proceeds received by the Company from the sale of Shares to that Investor
pursuant to the Purchase Agreement.
(b) Each Investor will severally, but not jointly, indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration Statement and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
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Act or Section 20 of
the 1934 Act, against any losses, claims, damages, liabilities or expenses to which the Company,
each of its directors, each of its officers who signed the Registration Statement or controlling
Person may become subject, under the 1933 Act, the 1934 Act, Spanish corporate and securities laws
and regulations, U.S. federal and U.S. state statutory law or regulation, U.S. common law or
otherwise (including in settlement of any litigation, but only if such settlement is effected with
the written consent of such Investor) insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (i)
any failure to comply with the covenants and agreements contained in Sections 4.2 or 4.3 hereof
respecting the sale of the Shares or (ii) any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements in the Registration
Statement or any amendment or supplement thereto not misleading or in the Prospectus or any
amendment or supplement thereto not misleading in the light of the circumstances under which they
were made, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Investor expressly for use
therein; and will reimburse the Company, each of its directors, each of its officers who signed the
Registration Statement or controlling Person for any legal and other expense reasonably incurred by
the Company, each of its directors, each of its officers who signed the Registration Statement or
controlling Person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however, that each Investor’s
aggregate liability under this Section 5.1 shall not exceed the amount of proceeds received by such
Investor on the sale of the Shares pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section 5.1 of notice of the
threat or commencement of any action, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party under this Section 5.1 promptly notify the indemnifying
party in writing thereof, but the omission to notify the indemnifying party will not relieve it
from any liability that it may have to any indemnified party for contribution or otherwise under
the indemnity agreement contained in this Section 5.1 to the extent it is not prejudiced as a
result of such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action include
both the indemnified party, and the indemnifying party and the indemnified party shall have
reasonably concluded, based on an opinion of counsel reasonably satisfactory to the indemnifying
party, that there may be a conflict of interest between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying
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party to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 5.1 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the indemnified party
shall have employed such counsel in connection with the assumption of legal defenses in accordance
with the proviso to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel, reasonably
satisfactory to such indemnifying party, representing all of the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of action, in each of which cases the reasonable fees and expenses of
counsel shall be at the expense of the indemnifying party. The indemnifying party shall not be
liable for any settlement of any action without its written consent. In no event shall any
indemnifying party be liable in respect of any amounts paid in settlement of any action unless the
indemnifying party shall have approved in writing the terms of such settlement; provided,
however, that such consent shall not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnification could have been sought hereunder by such indemnified party unless such
settlement provides for the unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 5.1 is required by its terms but is
for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party under paragraphs (a), (b) or (c) of this Section 5.1 in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Investor from the private placement
of Shares under the Purchase Agreement, the relative fault of the Company and the Investor in
connection with the statements or omissions or inaccuracies in the representations and warranties
in the Purchase Agreement and/or the Registration Statement that resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Investor on the other shall be
deemed to be in the same proportion as the amount paid by such Investor to the Company pursuant to
the Purchase
Agreement for the Shares purchased by such Investor that were sold pursuant to the
Registration Statement bears to the difference (the “Difference”) between the amount such
Investor paid for the Shares that were sold pursuant to the Registration Statement and the amount
received by such Investor from such sale. The relative fault of the Company on the one hand and
each Investor on the other shall be determined by reference to, among other things, whether the
untrue or alleged statement of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate representation and/or warranty relates to
information supplied by the Company or by such Investor and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section 5.1, any legal or
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other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The provisions set forth
in paragraph (c) of this Section 5.1 with respect to the notice of the threat or commencement of
any threat or action shall apply if a claim for contribution is to be made under this paragraph
(d); provided, however, that no additional notice shall be required with respect to
any threat or action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and the Investor agree that it would not be just and equitable if
contribution pursuant to this Section 5.1 were determined solely by pro rata allocation (even if
the Investor were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 5.1, no Investor shall be required to contribute any
amount in excess of the amount by which the Difference exceeds the amount of any damages that such
Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Investors’ obligations to contribute pursuant to
this Section 5.1 are several and not joint.
SECTION 6. Information Available. The Company, upon the reasonable request of the
Investor, shall make available for inspection by each Investor, any underwriter participating in
any disposition pursuant to the Registration Statement and any attorney, accountant or other agent
retained by the Investor or any such underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company’s officers, employees and
independent accountants to supply all information reasonably requested by the Investor or any such
underwriter, attorney, accountant or agent in connection with the Registration Statement.
SECTION 7. Termination of Conditions and Obligations. The restrictions imposed by
Section 4.2 upon the transferability of the Shares shall cease and terminate as to any particular
number of the Shares upon the earlier of (i) the passage of two years from the effective date of
the Registration Statement covering such Shares and (ii) at such time as an opinion of counsel
satisfactory in form and substance to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the 1933 Act.
SECTION 8. Assignment of Registration Rights.
The rights under this Agreement shall be automatically assignable by the Investor to any
transferee of all or any portion of such Investor’s Registrable Securities if:
(a) the Investor and the transferee or assignee sign an agreement in which the Investor agrees
to assign such rights, the transferee or assignee agrees to be bound by all of the provisions
contained herein and the Company is stated to be a third party beneficiary of such agreement by the
transferee or assignee to be bound by all of the provisions of this agreement, and a copy of such
agreement is furnished to the Company within a reasonable time after such assignment;
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(b) the Company is, within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee, and (ii) the securities
with respect to which such registration rights are being transferred or assigned;
(c) immediately following such transfer or assignment the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act and applicable state
securities laws;
(d) such transfer shall have been made in accordance with the applicable requirements of the
Purchase Agreement; and
(e) such transfer shall have been conducted in accordance with all applicable federal and
state securities laws.
SECTION 9. Amendment of Registration Rights.
Provisions of this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Required Holders; provided, however, that
any such amendment or waiver that would have an adverse and disproportionate effect on any Investor
must be approved by such Investor. Any amendment or waiver effected in accordance with this
Section 9 shall be binding upon each Investor and the Company. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the Registrable
Securities. No consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of this Agreement unless the same consideration also
is offered to all of the parties to this Agreement.
SECTION 10. Miscellaneous.
10.1 A Person is deemed to be a holder of Registrable Securities whenever such Person owns or
is deemed to own of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of
instructions, notice or election received from such record owner of such Registrable
Securities.
10.2 Any notices, consents, waivers or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to have been delivered:
(i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one Business Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If to the Company:
Telvent GIT, S.A.
Xxxxxxxxx, 0
Xxxxxxxxx, 0
-00-
00000 Xxxxxxxxxx
Xxxxxx, Xxxxx
Telephone: 00-00-000-00-00
Facsimile: 34-91-714-00-01
Attention: Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx
Telephone: 00-00-000-00-00
Facsimile: 34-91-714-00-01
Attention: Xxxxx Xxxxxx Xxxx
If to the Transfer Agent:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx
If to Legal Counsel:
Squire, Xxxxxxx & Xxxxxxx, L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxx
If to a Investor, to its address and facsimile number set forth on the Schedule of Investors
attached hereto, with copies to such Investor’s representatives as set forth on the Schedule of
Investors, or to such other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each other party
five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given
by the recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C) provided by a courier
or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.
10.3 Failure of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
10.4 All questions concerning the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York
or any other jurisdictions) that would cause the application of the laws of any jurisdictions other
than the State of New York. Each party hereby irrevocably submits to the
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exclusive jurisdiction of
the state and federal courts sitting in The City of New York, Borough of Manhattan, for the
adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law.
10.5 If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction,
such invalidity or unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision
of this Agreement in any other jurisdiction.
10.6 EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
10.7 This Agreement and the instruments referenced herein constitute the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein and therein. This Agreement, the other Transaction Documents and the instruments referenced
herein and therein supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
10.8 Subject to the requirements of Section 8, this Agreement shall inure to the benefit of
and be binding upon the permitted successors and assigns of each of the parties hereto.
10.9 The headings in this Agreement are for convenience of reference only and shall not limit
or otherwise affect the meaning hereof.
10.10 This Agreement may be executed in identical counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same agreement. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this Agreement.
10.11 Each party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements, certificates, instruments
and documents as any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
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10.12 All consents and other determinations required to be made by the Investors pursuant to
this Agreement shall be made, unless otherwise specified in this Agreement, by the Required
Holders.
10.13 The language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent and no rules of strict construction will be applied against
any party.
10.14 This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other Person.
10.15 The obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor, and no provision of this Agreement is intended to confer any
obligations on any Investor vis-à-vis any other Investor. Nothing contained herein, and no action
taken by any Investor pursuant hereto, shall be deemed to constitute the Investors as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated herein.
10.16 Notwithstanding anything else contained in this Agreement, in no event shall a party be
liable to any other party for any indirect, consequential, incidental, special or punitive damages,
including without limitation, any profits or revenues, regardless of the form of action and whether
advised of the possibility of such damages or not.
* * * * * *
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IN WITNESS WHEREOF, each Purchaser and the Company have caused their respective signature page
to this Registration Rights Agreement to be duly executed as of the date first written above.
| TELVENT GIT, S.A. |
||||
| Name: | ||||
| Title: | ||||
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Print or Type:
| Name of Purchaser | ||||
| (Institution) | ||||
| Jurisdiction of Purchaser’s Executive Offices | ||||
| Name of Individual representing Purchaser | ||||
| Title of Individual representing Purchaser | ||||
Signature by:
| Individual representing Purchaser: |
||||
| Address: | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
| E-mail: | ||||||
* See the Schedule of Purchasers for a list of purchasers that
signed this form of registration rights agreement
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SCHEDULE OF PURCHASERS
| Purchaser’s Representative’s | ||||||||||
| Purchaser Address | Address | |||||||||
| Purchaser | and Facsimile Number | and Facsimile Number | ||||||||
| Xxxxxxx & Xxxx Advisors Funds, Inc. Science & Technology Fund | ||||||||||
| Ivy Funds, Inc. Science & Technology Fund | ||||||||||
| Ivy Funds VIP Science & Technology Fund | ||||||||||
| GreenTech 21st Century Master Fund Ltd. | ||||||||||
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