SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of October 20, 1998, by and among TELETRAC
HOLDINGS, INC., a Delaware corporation, 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 and Restated
Registration Rights Agreement (as defined below).
WITNESSETH:
WHEREAS, the Company (as defined below) and certain of the Holders
entered into a 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");
WHEREAS, in connection with the Company's sale of its Series A
Redeemable Convertible Participating Preferred Stock, par value $.01 per share
(the "Series A Preferred Stock"), to certain Holders, the Company agreed to
provide certain registration rights with respect to the Series A Preferred Stock
and, to evidence such agreement, entered into an Amended and Restated
Registration Rights Agreement dated as of December 6, 1996 with certain Holders
(the "Amended and Restated Registration Rights Agreement");
WHEREAS, the Company and certain Holders contemporaneously herewith are
entering into a Stock Purchase Agreement (the "Series B Stock Purchase
Agreement") pursuant to which such Holders shall purchase from the Company
shares of the Company's Series B Redeemable Convertible Participating Preferred
Stock, par value $.01 per share (the "Series B Preferred Shares");
WHEREAS, to induce such Holders to purchase the Series B 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 Series B Stock Purchase
Agreement) of the Series B Preferred Shares under the Series B 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:
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1.1 "Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.2 "Company" shall mean Teletrac Holdings, Inc., a Delaware
corporation, and any of its subsidiaries except to the extent the context
otherwise requires.
1.3 "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.
1.4 "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.
1.5 "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.
1.6 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.
1.7 "Registrable Securities" means any and all shares of Class A Common
Stock (as defined in the Series B Stock Purchase Agreement) (i) issued or
issuable upon conversion of the Series B Preferred Stock, (ii) issued or
issuable upon conversion of the Series A Preferred Stock, (iii) issued under the
Stock Purchase Agreement dated November 14, 1995 by and among the Company and
certain Holders, (iv) issued under the Subscription Agreement dated March 29,
1996 by and among the Company and certain Holders, (v) 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), (vi) 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, the Company's 1998 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 (vii)
issued or issuable with respect to any Securities referred to in classes (i)
through (vi) above, upon any stock split, stock dividend, recapitalization or
similar event, which shares have not been sold to the public.
1.8 "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
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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 "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 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).
1.10 "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.
1.11 "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
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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 securities of the Company for
its own account (or such lesser period as the managing underwriters of such
offering will allow);
(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); or
(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
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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 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
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(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.
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
request of the Holders (provided, however, that the Company shall not be
permitted to
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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,
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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 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 underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
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(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 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
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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 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
11
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 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.
12
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.
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
13
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 Additional Investors, to the extent that such investors are not
already parties to this Agreement, may be added as parties to this Agreement
with respect to the Additional Series B Preferred Shares. 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 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.
14
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,
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, to the attention of Xxxxxx X. Xxxxxx, Esq.
15
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]
16
IN WITNESS WHEREOF, the undersigned have executed this Second Amended
and Restated Registration Rights Agreement as a sealed instrument as of the day
and year first written above.
ADDRESS: COMPANY:
2323 Grand TELETRAC HOLDINGS, INC., a
Suite 1100 Delaware corporation
Xxxxxx Xxxx, XX 00000-0000
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: Xxxx Xxxxxxx By: Kingdon Capital Management
Corp.,
its general partner
By:____________________________
Name:
Title:
00
Xxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxx XXXXXXX PARTNERS, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 By: Kingdon Capital Management
Attn: Xxxx Xxxxxxx Corp.,
its general partner
By:____________________________
Name:
Title:
Kingdon Capital Management Corporation X. XXXXXXX OFFSHORE NV
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 By: Kingdon Capital Management
Attn: Xxxx Xxxxxxx Corp.,
its investment advisor
By:________________________
Name:
Title:
Burr, Egan, Deleage & Co. ALTA SUBORDINATED DEBT
One Embarcadero Center PARTNERS III, L.P.
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 By: Alta Subordinated Debt
Attn: Xxxxxx X. Xxxxxx Management III, L.P.
By:_________________________
General Partner
Burr, Egan, Deleage & Co. ALTA V LIMITED PARTNERSHIP
One Embarcadero Center
Suite 4050 By: Alta V Management Partners,
Xxx Xxxxxxxxx, XX 00000 L.P.
Attn: Xxxxxx X. Xxxxxx
By:_________________________
General Partner
18
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
Xxx Xxxxxxxxx, XX 00000 Management 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: Xxxxx Xxxxx
By:_________________________
Name:
Title:
TruePosition, Inc. TRUEPOSITION, INC.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx By:_____________________________
Name:
Title:
19
BancBoston Ventures, Inc. BANCBOSTON VENTURES INC.
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 Equity Partners WESTBURY EQUITY PARTNERS, L.P.
0000 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000 By: X.X. Xxxx Co.
Attn: Xxxxxxx Xxxxxx
By:_____________________
Name:
Title:
00
Xxxxxx Xxxxxxx Xxxxxxxx XXXXXX CAPITAL VENTURES
Xxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxxx
By:_____________________________
Name:
Title:
0000 XX Xxxxxxxx Xxxxx Xxxxx HIGH POINT XXXXXX LIMITED
Xxxxx 000 XXXXXXXXXXX
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx XX By: High Point Management, Inc.,
its general partner
By:_________________________
Name:
Title:
0000 XX Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: X. X. Xxxxxx
By:_____________________________
X.X. Xxxxxx
0000 XX Xxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx XX
By:_____________________________
Xxxxxxx X. Xxxxxx XX
Xxxxx X. Queen
c/o Teletrac Holdings, Inc.
0000 Xxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000-0000 ________________________________
Xxxxx X. Queen
Xxxxxx X. Xxxxxxx
c/o Teletrac Holdings, Inc.
21
0000 Xxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000-0000 ________________________________
Xxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxxx
c/o Teletrac Holdings, Inc.
0000 Xxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000-0000 ________________________________
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
22
