Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 29, 2000, by and
among the stockholders of Unwire AB (publ), org. no. 556522-7617, a corporation
organized under the laws of Sweden (the "Company"), each of which is listed on
Schedule I attached hereto (each a "Seller", and collectively, the "Sellers"),
and CELLPOINT INC., a corporation organized under the laws of the State of
Nevada (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Sellers, the Purchaser and CellPoint Swedish Holdings
Ltd. have entered into a certain Purchase and Sale Agreement, dated as of
February 16, 2000 (as amended and in effect from time to time, the "Purchase
Agreement"), pursuant to which (i) the Purchaser purchased from the Sellers all
of the issued and outstanding equity securities and securities convertible into
or exercisable for the equity securities of the Company, and (ii) the Purchaser
is issuing to the Sellers, as consideration for such purchase, an aggregate of
1,075,000 shares (the "CellPoint Shares") of the Common Stock, par value $0.001
per share (the "Common Stock") of the Purchaser;
WHEREAS, the Purchaser and the Sellers desire to enter into this
Agreement in consideration for their respective obligations under the Purchase
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
1. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION. Certain capitalized
terms are used in this Agreement with the specific meanings defined below in
this Section 1 or as otherwise provided in this Agreement. Capitalized terms
used but not defined in this Agreement shall have the meanings assigned to such
terms in the Purchase Agreement. Except as otherwise explicitly specified to the
contrary or unless the context clearly requires otherwise, (a) the capitalized
term "Section" refers to sections of this Agreement, (b) references to a
particular Section include all subsections thereof, (c) the word "including"
shall be construed as "including without limitation", (d) references to a
particular statute or regulation include all rules and regulations thereunder
and any successor statute, regulation or rules, in each case as from time to
time in effect, (e) words in the singular or plural form include the plural and
singular form, respectively, and (f) references to a particular Person include
such Person's successors and assigns to the extent not prohibited by this
Agreement.
"Board of Directors" means the Board of Directors of the Purchaser.
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"Common Stock" has the meaning set forth in the recitals hereto.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Holder" means any Seller that owns, of record, any of the CellPoint
Shares.
"Initial Registration Statement" means the registration statement to
be filed by the Purchaser with respect to the 1,125,000 shares of the Common
Stock which were issued and sold by the Purchaser in a private placement closed
in October and November 1999.
"Initiating Holders" has the meaning set forth in Section 2(c).
"Person" means any present or future natural person or any
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
"register", "registered" and "registration" refer to a registration of
the Common Stock effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act or an analogous document
under the Securities Act and the declaration or ordering of effectiveness, of
such registration statement or document.
"Registrable Securities" means (a) any CellPoint Shares acquired by
the Sellers pursuant to the Purchase Agreement, (b) the Purchaser Escrow Shares,
if and when issued out of escrow to the Sellers in accordance with the Purchase
Agreement, and (c) any share of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security which is issued
as) a dividend or other distribution with respect to, in exchange for, or in
replacement of, any share of Common Stock described in the foregoing clause (a)
and (b); PROVIDED, HOWEVER, that any share of Common Stock previously sold to
the public pursuant to a registered public offering or pursuant to an exemption
from the registration requirements of the Securities Act shall cease to be a
Registrable Security.
"Registration Expenses" has the meaning set forth in Section 2(f).
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Violation" means, with respect to any registration statement which
includes any Registrable Securities:
(i) any untrue statement or alleged untrue statement of a material
fact
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contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto;
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading; or
(iii) any violation or alleged violation by the Purchaser of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation with respect to the registration of securities of the Purchaser.
2. REGISTRATION RIGHTS.
(a) INITIAL REGISTRATION STATEMENT. The Purchaser hereby agrees to
include in the Initial Registration Statement to be filed by the Purchaser under
the Securities Act such number of the Shares as shall equal approximately 25% of
the aggregate number of Registrable Securities (excluding the Purchaser Escrow
Shares that have not been delivered out of escrow to the Sellers) issued to the
Sellers pursuant to the Purchase Agreement. The Purchaser shall include the
CellPoint Shares of the Sellers allocated among the Sellers as the Sellers shall
notify the Purchaser prior to the filing of the Initial Registration Statement.
The Purchaser shall use its commercially reasonable best efforts to file with
the SEC the Initial Registration Statement no later than March 31, 2000. The
Purchaser shall use its commercially reasonable best efforts to cause the
Initial Registration Statement to be declared effective as soon as practicable
by responding to any comments and requests by the SEC as soon as practicable
after receiving comments from the SEC with respect thereto.
(b) PIGGYBACK REGISTRATION RIGHTS. If, after the date hereof, the
Purchaser proposes to register (including for this purpose a registration
effected by the Purchaser for stockholders other than the Holders) any of its
capital stock or other securities under the Securities Act in connection with
the public offering of such securities solely for cash (other than a
registration on Form S-8 or an analogous form under the Securities Act relating
solely to the sale of securities to participants in a Purchaser stock plan or a
registration on Form S-4 or an analogous form under the Securities Act), the
Purchaser shall, at such time, promptly (but in any event not less than 45 days
before the anticipated filing date) give each Holder written notice of such
registration. Upon the receipt of a written request of any Holder given within
30 days after receipt of such notice from the Purchaser, the Purchaser shall,
subject to the provisions of Section 2(h), use its best efforts to cause a
registration statement covering all of the Registrable Securities that each such
Holder has requested to be registered to become effective under the Securities
Act. The Purchaser shall be under no obligation to complete any offering of its
securities it proposes to make and shall incur no liability to any Holder for
its failure to do so (except for its obligation to pay the Registration Expenses
in connection therewith); PROVIDED, HOWEVER, that in the event the Purchaser
determines to delay registering shares for its own account or for the account of
stockholders other than the Sellers, the Purchaser shall only be
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permitted to delay registering the Registrable Securities for the same period
and to the extent that the Purchaser has delayed registering such other
securities.
(c) DEMAND REGISTRATION.
(i) If, by November 15, 2000, the Purchaser shall not have filed a
registration statement or registration statements which, in the aggregate,
include all of the Registrable Securities (other than the Purchaser Escrow
Shares which, at that date, are still being held in escrow under the
Agreement), whether pursuant to paragraph (a) or paragraph (b) of this
Section 2, then by December 31, 2000, the Purchaser shall file a
registration statement with the SEC with respect to those Registrable
Securities owned by the Sellers which have not theretofore been included in
a registration statement filed under the Securities Act.
(ii) At any time after December 31, 2000, if the Purchaser shall not
have filed a registration statement or registration statements which, in
the aggregate, include all of the the Registrable Securities (other than
the Purchaser Escrow Shares which, at that date, are still being held in
escrow under the Agreement), whether pursuant to paragraph (a), paragraph
(b) or paragraph (c)(i) of this Section 2, upon the written request of
Holders of a majority in interest of the Registrable Securities then
outstanding and entitled to registration rights under this Section 2 (the
"Initiating Holders") that the Purchaser effect the registration under the
Securities Act of all of the Registrable Securities then outstanding, the
Purchaser shall, within 45 days of the receipt of such request, file with
the SEC a registration statement covering all the Registrable Securities
and use its commercially reasonable best efforts to have such registration
statement be declared effective. The exercise by the Holders of the
registration rights set forth in this Section 2(c) is subject to the
Initiating Holders= compliance with the terms and restrictions set forth in
this Agreement.
(iii) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Purchaser as part of their request made pursuant to Section
2(c)(ii). All Holders proposing to distribute their securities through such
underwriting shall (together with the Purchaser) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected
for such underwriting by a majority in interest of the Initiating Holders.
In the case of any such underwritten offering, the underwriter or
underwriters shall be selected, after consultation with, and with the
consent of, the Purchaser (which shall not unreasonably be withheld), by a
majority in interest of the Initiating Holders.
(d) OBLIGATIONS OF THE PURCHASER. Whenever required under this
Section 2 to effect the registration of any Registrable Securities under the
Securities Act, the Purchaser shall, as expeditiously as reasonably possible:
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(i) diligently use its best efforts to prepare and file with the SEC
a registration statement on any form for which the Purchaser then qualifies
of which counsel for the Purchaser shall deem appropriate and which form
shall be available for the sale of such Registrable Securities in
accordance with the intended method of distribution thereof, and use its
best efforts to cause such registration statement to become effective, and,
upon the request of the Holders of a majority in interest of the
Registrable Securities to be registered thereunder, keep such registration
statement effective for up to twelve months or until the Holders have
informed the Purchaser in writing that the distribution of their
Registrable Securities has been completed, whichever is earlier; PROVIDED,
HOWEVER, that before filing a registration statement or prospectus or any
amendments or supplements thereto, (A) the Purchaser shall provide the
Sellers and one counsel selected by the Sellers with an adequate and
appropriate opportunity to participate in the preparation of such
registration statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the SEC, (B) each Seller
shall have the opportunity to approve any information contained in such
registration statement and prospectus pertaining solely to such Seller, and
the Purchaser shall make such corrections thereto as requested by such
Seller subject to the requirements of the Securities Act, and (C) the
Purchaser shall notify the applicable Sellers (x) when such registration
statement or prospectus or any amendment or supplement thereto has been
filed, and with respect to any such registration statement or
post-effective amendment, when the same has become effective, and (y) of
any stop order issued or threatened by the SEC and take all reasonable
action required to prevent the entry of such stop order or to remove it if
entered;
(ii) diligently prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement (including all exhibits and
documents incorporated by reference), and use its best efforts to cause
each such amendment and supplement to become effective, as may be necessary
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement;
(iii) as soon as reasonably possible, furnish to the Holders such
reasonable number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as they may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them (in each case
including all exhibits);
(iv) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or blue
sky laws of such states and jurisdictions as shall be reasonably requested
by the Holders and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holders to consummate the
disposition of Registrable Securities in such jurisdiction, except that the
Purchaser shall not be required in connection therewith or as a condition
thereto to
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qualify to do business or file a general consent to service of process in
any such state or jurisdiction;
(v) 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; PROVIDED,
HOWEVER, that each Holder participating in such underwriting shall also
enter into and perform its obligations under such an underwriting
agreement, including furnishing any opinion of counsel or entering into a
lock-up agreement reasonably requested by the managing underwriter;
(vi) 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 happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and promptly file such amendments and supplements which may be
required pursuant to Section 2.3(b) on account of such event and use its
best efforts to cause each such amendment and supplement to become
effective;
(vii) apply for listing and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc.
(the "NASD");
(viii) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Purchaser to enable the seller
or sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(ix) make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition
pursuant to such registration statement, and one counsel selected by the
Holders all financial and other records, pertinent corporate documents and
properties of the Purchaser and its subsidiaries as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the Purchaser's and its subsidiaries', officers, directors and
employees, and the independent public accountants of the Purchaser, to
supply all information reasonably requested in connection with such
registration statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC;
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(xi) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with any securities exchange or the NASD;
(xii) furnish to the Holders of Registrable Securities included in
such registration statement a copy (with the original thereof to be
delivered to the one counsel selected by the Holders), (A) an opinion of
counsel to the Purchaser, dated the effective date of the registration
statement (or if such registration includes an underwritten offering, dated
the date of the closing under the underwriting agreement), reasonably
satisfactory to counsel for the Holders, and (B) a "comfort letter" signed
by the independent public accountants of the Purchaser who have certified
the Purchaser's financial statements included in such registration
statement, such letter to be dated the effective date of the registration
statement (or if such registration includes an underwritten offering, dated
the date of the closing under the underwriting agreement),
(xii) use best efforts to take all other steps necessary to effect the
registration of the Registrable Securities contemplated hereby.
(e) FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Purchaser to take any action pursuant to this Section 2 in
respect of the Registrable Securities of any selling Holder that such selling
Holder shall furnish to the Purchaser such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such Registrable Securities as shall be required to effect the registration of
such Registrable Securities. The Purchaser shall have no responsibility, to the
extent such Holder fails to provide such information in a timely manner, and if
the Purchaser determines it appropriate, the Purchaser may delay the filing of
any such registration statement until the Holder provides such information.
(f) EXPENSES OF REGISTRATION. The Purchaser shall bear all expenses
("Registration Expenses") relating to Registrable Securities incurred in
connection with each registration, filing or qualification pursuant to this
Section 2, including, without limitation, all registration, filing, exchange or
NASD listing fees, qualification and other fees and expenses of complying with
securities or blue sky laws, printing and accounting fees, fees and
disbursements of counsel for the Purchaser and other fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, except that
(i) the Purchaser shall not be required to bear the expenses of counsel for the
Sellers and (ii) if the Registrable Securities shall be registered pursuant to
an underwritten public offering, then the Holders shall bear the commissions
payable to the underwriter with respect to the sales of the Registrable
Securities sold by the underwriter on behalf of such Holders.
(g) PERIODIC REPORTING UNDER THE EXCHANGE ACT. The Purchaser
covenants that it shall (i) file any reports required to be filed by it under
the Exchange Act and the rules and
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regulations adopted by the SEC thereunder; and (ii) take such further action as
each Holder of Registrable Securities may reasonably request (including
providing any information necessary to comply with Rules 144 under the
Securities Act), all to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rules or regulations hereafter
adopted by the SEC.
(h) UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of securities being issued by the Purchaser, the
Purchaser shall not be required to include any of the Holders' securities in
such underwriting unless such Holders accept the terms of the underwriting as
agreed upon between the Purchaser and the underwriters selected by it, and then
only in such quantity, if any, as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Purchaser. If the managing
underwriter for the offering shall advise the Purchaser and the Holders in
writing that the total amount of securities, including Registrable Securities
requested to be included in such offering exceeds the amount of securities to be
sold other than by the Purchaser that can be successfully offered without a
material reduction in the selling price anticipated to be received for the
securities to be sold in such offering or without adversely affecting the
proceeds from the sale of securities by the Purchaser, then the Purchaser shall
only be required to include in the offering:
(i) first, all securities the Purchaser proposes to sell; and
(ii) second, the number of securities in excess of those the
Purchaser proposes to sell which in the opinion of such managing
underwriter can be sold, which number shall be allocated pro rata
among the Holders and the other stockholders of the Purchaser who have
requested shares of Common Stock to be included therein based on the
number of shares so requested to be included by such Holder in the
registration statement; PROVIDED, HOWEVER, that the number of
Registrable Securities of each Holder to be included therein shall be
allocated among the Holders in their sole discretion, as notified to
the Purchaser and the underwriter prior to the filing of the
registration statement; and PROVIDED FURTHER, in the event that
affiliates (as such term is interpreted under the Securities Act) of
the Company request that the Purchaser include their shares of the
Purchaser's Common Stock in such registration statement and in the
event that the circumstances described in this Section 2(h) apply, the
number of shares of the Holders other than such affiliates and the
number of shares of such affiliates to be included in such
registration statement shall be adjusted on a PRO RATA basis; and
PROVIDED FURTHER, that in no event shall the Company include in such
registration statement more than 300,000 shares of the Common Stock of
the Purchaser beneficially owned by such affiliates.
3. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Section 2:
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(a) The Purchaser will indemnify and hold harmless each Holder, the
officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act (collectively, the "Holder Indemnitees"),
against any losses, claims, damages or liabilities (joint or several) to which
any Holder Indemnitee may become subject under the Securities Act, the Exchange
Act, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon any Violation.
The Purchaser will reimburse each Holder Indemnitee for any legal or other
expenses reasonably incurred by such Holder Indemnitee in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding. The indemnity agreement contained in this Section 3(a) shall not
apply to amounts paid in settlement of any loss, claim, damage, liability or
action if such settlement is effected without the consent of the Purchaser
(which consent shall not be unreasonably withheld), nor shall the Purchaser be
liable to any Holder Indemnitee in any such case for any such loss, claim,
damage, liability, action or proceeding (i) to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by or on behalf of such Holder Indemnitee; PROVIDED, HOWEVER, that
the Purchaser shall not be required to indemnify any Holder for information
supplied by another Holder, or (ii) in the case of a sale directly by a Holder
of Registrable Securities (including a sale of such Registrable Securities
through any underwriter retained by such Holder engaging in a distribution
solely on behalf of such Holder), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and such Holder
failed to deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the Registrable Securities to the Person asserting
any such loss, claim, damage or liability in any case in which such delivery is
required by the Securities Act.
(b) Each Holder which includes any Registrable Securities in any
registration statement (i) will indemnify and hold harmless the Purchaser, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Purchaser within the meaning of
the Securities Act, each agent and any underwriter for the Purchaser, and any
other Holder or other stockholder selling securities in such registration
statement or any of its directors, officers, partners, agents or employees or
any Person who controls such Holder or such other stockholder or such
underwriter (collectively, the "Purchaser Indemnitees"), against any losses,
claims, damages or liabilities (joint or several) to which any Purchaser
Indemnitee may become subject under the Securities Act, the Exchange Act,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by or on
behalf of such Holder expressly for use in connection with such registration and
(ii) will reimburse any legal or other expenses reasonably incurred by any
Purchaser Indemnitee in connection with investigating or defending any such
loss, claim, damage, liability, action or
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proceeding; PROVIDED, HOWEVER, that the liability of any Holder hereunder shall
be limited to the amount of net proceeds (after deduction of all underwriters'
discounts and commissions paid by such Holder in connection with the
registration in question) received by such Holder in the offering giving rise to
the Violation; and PROVIDED, FURTHER, that the indemnity agreement contained in
this Section 3(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of such Holder (which consent shall not be unreasonably withheld)
nor, in the case of a sale directly by the Purchaser of its securities
(including a sale of such securities through any underwriter retained by the
Purchaser to engage in a distribution solely on behalf of the Purchaser), shall
such Holder be liable to the Purchaser in any case in which such untrue
statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus, and the Purchaser failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the securities to the
Person asserting any such loss, claim, damage or liability in any case in which
such delivery is required by the Securities Act.
(c) Promptly after receipt by any Indemnitee under this Section 3 of
notice of the commencement of any action (including any governmental action),
such Indemnitee will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 3, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
and control the defense thereof with counsel mutually satisfactory to the
parties; PROVIDED, HOWEVER, that such Indemnitee shall have the right to retain
its own counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such Indemnitee by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests, as reasonably determined by either party, between such Indemnitee and
any other party represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the Indemnitee
under this Section 3 only to the extent of such prejudice, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to such Indemnitee otherwise than under this Section.
(d) The obligations of the Purchaser and the Holders under this
Section 3 shall survive the completion of any offering of Registrable Securities
in a registration statement whether under Section 2 or otherwise. The
obligations of the Purchaser and the Holders under this Section 3 shall be
outside of the limitations and requirements set forth in Article X of the
Purchase Agreement, and any amounts owing by the indemnifying party pursuant to
this Section 3 shall be not subject to the Deductible or the maximum liability
set forth in such Article X.
(e) If the indemnification provided for in this Section 3 is
unavailable to a party that would have been an Indemnitee under this Section 3
in respect of any losses, claims,
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damages or liabilities (or actions or proceedings in respect thereof) referred
to herein, then each party that would have been an indemnifying party hereunder
shall, in lieu of indemnifying such Indemnitee, contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative fault of such indemnifying party, on the
one hand, and such Indemnitee, on the other hand, in connection with the
Violation which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof). The relative fault shall be
determined by reference to, among other things, whether the Violation relates to
information supplied by such indemnifying party or such Indemnitee and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The parties agree that it would not be just
and equitable if contribution pursuant to this Section 3(e) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentence.
The amount paid or payable by a contributing party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 3(e) shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The liability of any Holder of Registrable
Securities in respect of any contribution obligation of such Holder (after
deduction of all underwriters' discounts and commissions paid by such Holder in
connection with the registration in question) arising under this Section 3(e)
shall not in any event exceed an amount equal to the net proceeds to such Holder
from the disposition of the Registrable Securities disposed of by such Holder
pursuant to such registration.
4. NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing and delivered in
Person, transmitted by facsimile transmission (fax) or sent by registered or
certified mail (return receipt requested) or recognized overnight delivery
service, postage pre-paid, addressed as follows, or to such other address has
such party may notify to the other parties in writing:
(i) if to the Purchaser:
CellPoint Inc.
Xxxxxxxxxxxxxxx 0
Xxxxxxxxxx X 000 00
Xxxxxx
Facsimile: 000-000-00000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:
Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx
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000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000 or 000-000-0000
(ii) if to the Sellers:
To their respective addresses set forth
on the signature page hereof
with a copy to:
Xxxxxxxx Chance Limited Liability Partnership
000 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile: 00-000-000-0000
A notice or communication will be effective (i) if delivered by hand or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
facsimile, on the business day of actual confirmed receipt by the addressee
thereof, and (iii) if sent by registered or certified mail, upon receipt.
5. BINDING EFFECT; GOVERNING LAW.
(a) This Agreement shall be binding upon, and inure to the benefit
of, the parties and their respective personal representatives, successors and
permitted assigns.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to principles of
conflict of laws.
6. COURSE OF DEALING; AMENDMENTS, WAIVERS AND CONSENTS. No course of
dealing between the parties shall operate as a waiver of any party's rights
under this Agreement. Each party acknowledges that if any party, without being
required to do so by this Agreement, gives any notice or information to, or
obtains any consent from, the other party, such party shall not by implication
have amended, waived or modified any provision of this Agreement, or created any
duty to give any such notice or information or to obtain any such consent on any
future occasion. No delay or omission on the part of any party in exercising any
right under this Agreement shall operate as a waiver of such right or any other
right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No amendment, waiver or consent with respect to this Agreement shall be
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binding unless it is in writing and signed by each of the Purchaser and the
holders of a majority of the Registrable Securities then outstanding.
7. MISCELLANEOUS.
(a) This Agreement may be amended only by a written agreement, signed
by all the parties hereto.
(b) If any provision of this Agreement shall be found by any court of
competent jurisdiction to be invalid or unenforceable, the parties hereby waive
such provision to the extent that it is found to be invalid or unenforceable.
Such provision shall, to the maximum extent allowable by law, be modified by
such court so that it becomes enforceable, and, as modified, shall be enforced
as any other provision hereof, all the other provisions hereof continuing in
full force and effect.
(c) This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
(d) This Agreement shall be binding upon and shall inure for the
benefit of the parties hereto and there respective successors and assigns.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall
constitute only one Agreement.
(f) The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
hereof.
(g) This Agreement constitutes the entire understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior understandings and agreements, whether written or oral, with respect to
such subject matter.
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IN WITNESS WHEREOF, the Purchaser and the Sellers have caused this
Agreement to be executed effective as of the date first above written.
THE PURCHASER:
CELLPOINT INC.
By: /s/ XXXXX XXXXXXXXXX
------------------------------
Xxxxx Xxxxxxxxxx
President
THE SELLERS:
Address: PROCURITAS INVESTMENT PARTNERS
Skeppsbron20 (PIP) BV
000 00 Xxxxxxxxx
Xxxxxx By /s/ MATS XXXXXXX
------------------------------
Name: Mats Xxxxxxx
Address: NORRA BROFASTET I SUNDSVALL AB
Xxxxxxxxxx 00
0000 00 Xxxxxxxxx
Xxxxxx By /s/ PER BORJESSON
------------------------------
Name: Per Borjesson
Address: ERASMUS MANAGEMENT AB
Xxxxxxxxxx 0
000 00 Xxxxxxxxxxx
Xxxxxx By /s/ XXXXXX XXXXXXX
------------------------------
Name: Xxxxxx Xxxxxxx
Address: FORETAGSPARTNER IBP INVEST AB
Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER BORJESSON
------------------------------
Name: Per Borjesson
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Address: XXXX XXXXXXXX XX
Xxxxx Xxxxxxxxxx 00
000 00 Xxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN INVESTMENT LTD.
c/o CBS, Xxx Xx Xxxxxxx 0
X.X. 000, XX-0000 Xxxxxxxx
Xxxxxxxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address: XXXXXX XXXXX
Xxxxxxxxxxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN KAPITALFORVALTNING XX
Xxxxxx Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address: LEDSTIERNAN BUSINESS DEVELOPMENT LTD
Xxxxxxxxxxxxx 00
000 00 Xxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
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Address: LEDSTIERNAN B.V.
Box 75215
0000XX Xxxxxxxxx
Holland By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address: XX XXXXX
Xxxxxxxxxx
000 00 Xxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Name: Per Xxxxxxxx
Address:
9 Xxxxxxxxxxxx 00 0 xx
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
PER XXXXXXXX
Address: XXXXX XXXXXXXX
Xxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Attorney-in-fact
Address: XXXX XXXXXX
Xxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Attorney-in-fact
Address: XXXX XXXXXXXX
Xxxxxxxxxxx 00
000 00 Xxxxxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Attorney-in-fact
Address: XXXXXXX XXXXXXXX
Xxxxxxxxxx 00
000 00 Xxxxxxx Xxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Attorney-in-fact
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Address:
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ PER JUNDIN
------------------------------
PER JUNDIN
Address: XXXXX JUNDIN
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: XXXXXXXXXXX JUNDIN
Xxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: XXXX XXXXXXXXX
Xxxxxxxxxxx 00
000 00 Xxxxxxxxxx
Xxxxxx By /s/ PER JUNDIN
------------------------------
Attorney-in-fact
Address: UNIUM AB
Xxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Name: Xxxxxxx Xxxxxx
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Address:
Soldatvagen 00x
000 00 Xxxxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
XXXXXXX XXXXXX
Address: XXXXXX XXXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxxx
Xxxxxx
By /s/ XXXXXXX XXXXXX
------------------------------
XXXXXXX XXXXXX
KAJ GELLBERG
Address:
Xxxxxxxxxxxxxxx 00
000 00 Xxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: XXXXX XXXXXXXXX
Xxxxxxxxxxxxxxxxxxx 00x
000 00 Xxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: XXXXXX XXXXXXXXX
Xxxxxxxxxxxx 0
000 00 Xxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: LYKKE XXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: XXXXXXX XXXXXX
Xxxxxxxxx 0
000 00 Xxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
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Address: MATS LJUNG
Xxxxxxxxxx 00
000 00 Xxxxxxx Xxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: XXXXX XXXXXXXX
Xxxxxxxxxxxxx 00
000 00 Xxxxxxxx
Xxxxxx By /s/ XXXXXXX XXXXXX
------------------------------
Attorney-in-fact
Address: XXXX XXXXXXXXXX
Xxxxxxxxxx
000 00 Xxxxxx
Xxxxxx By /s/ PER XXXXXXXX
------------------------------
Attorney-in-fact
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