Exhibit 2
RECAPITALIZATION AGREEMENT
This RECAPITALIZATION AGREEMENT (the "Agreement"), entered into
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as of September ___, 1996, by and between HIGHWAYMASTER COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and each of the entities and persons
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listed on Exhibit A attached to this Agreement as Carlyle stockholders (the
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"Carlyle Stockholders") and each of the entities and persons listed on Exhibit A
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attached to this Agreement as Xxxx Xxxxx Stockholders (the "Xxxx Xxxxx
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Stockholders").
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BACKGROUND
Certain of the Carlyle Stockholders beneficially own
approximately 10.3% of the issued and outstanding shares of common stock, par
value $.01 per share (the "Common Stock"), of the Company.
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Certain of the Xxxx Xxxxx Stockholders beneficially own
approximately 37.6% of the issued and outstanding shares of Common Stock.
The Xxxx Xxxxx Investment Corporation ("EMIC") is the holder
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of promissory notes dated August 23, 1996 and September 16, 1996 in the
aggregate original principal amount of $5,000,000 (the "Bridge Notes") issued
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pursuant to a Note Purchase Agreement dated August 23, 1996 between the Company
and EMIC (the "Bridge Note Agreement")
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The Xxxx Xxxxx Development Corporation is the holder of
929.105 shares of Series B Preferred Stock, par value $.01 per share (the
"Series B Preferred Stock"), of the Company. Xxxxxx X. Xxxxxx is the holder of
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42.85 shares of Series B Preferred Stock. Xxxxxx X. Xxxxx is the holder of
108.0450 shares of Series B Preferred Stock. The holders of shares of Series B
Preferred Stock are collectively referred to as the "Series B Preferred
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Stockholders."
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Clipper Capital Associates, L.P. is the holder of promissory
notes dated June 28, 1995 in the original aggregate principal amount of
$29,871.76 (together, "Carlyle Note No. 1") issued by the Company pursuant to
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the Note Exchange and Amendments Agreement dated May 26, 1995 (the "Note
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Exchange Agreement"). Clipper/Merban, L.P. is the holder of promissory notes
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dated June 28, 1995 in the original aggregate principal amount of $1,684,009.32
(together, "Carlyle Note No. 2") issued by the Company pursuant to the Note
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Exchange Agreement. Clipper/Merchant Partners, L.P. is the holder of promissory
notes dated June 28, 1995 in the original aggregate principal amount of
$1,662,712.05 (together, "Carlyle Note No. 3 ") issued by the Company pursuant
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to the Note Exchange Agreement. Carlyle-HighwayMaster Investors, L.P. is the
holder of promissory notes dated June 28, 1995 in the original aggregate
principal amount of $5,187,536.53 (together, "Carlyle Note No. 4") issued by the
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Company pursuant to the Note Exchange Agreement. Carlyle-HighwayMaster Investors
II, L.P. is the holder of promissory notes dated June 28, 1995 in the original
aggregate principal amount of $488,604.30 (together, "Carlyle Note No. 5")
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issued by the Company pursuant to the Note Exchange Agreement. Chase Manhattan
Investment Holdings, Inc. is the holder of promissory notes dated June 28, 1995
in the original aggregate principal amount of $1,241,756.43 ) (together,
"Carlyle Note No. 6") issued by the Company pursuant to the Note Exchange
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Agreement. X.X. Xxxx Investments Limited is the
holder of promissory notes dated June 28, 1995 in the original aggregate
principal amount of $1,810,378.26 (together, "Carlyle Note No. 7") issued by the
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Company pursuant to the Note Exchange Agreement. Archery Partners is the holder
of promissory notes dated June 28, 1995 in the original aggregate principal
amount of $215,218.08 (together, "Carlyle Note No. 8") issued by the Company
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pursuant to the Note Exchange Agreement. The Carlyle Note Xx. 0, Xxxxxxx Xxxx
Xx. 0, Xxxxxxx Note Xx. 0, Xxxxxxx Xxxx Xx. 0, Xxxxxxx Note Xx. 0, Xxxxxxx Xxxx
Xx. 0, Xxxxxxx Note No. 7 and Carlyle Note No. 8 are collectively referred to
as the "Carlyle Notes." The holders of the Carlyle Notes are hereinafter
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collectively referred to as the "Carlyle Noteholders."
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Concurrently with the execution and delivery of this
Agreement, the Company is entering into certain transactions (the "Investment
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Transactions") with Southwestern Xxxx Wireless Holdings, Inc. (the "Investor").
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The Investment Transactions include, but are not limited to, (i) the issuance
and sale by the Company of 1,000 shares of its Series D Participating
Convertible Preferred Stock, par value $.01 per share, to the Investor pursuant
to a Purchase Agreement (the "Purchase Agreement") in exchange for a payment in
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the amount of $20,000,000, (ii) the execution and delivery of an Amended and
Restated Stockholders' Agreement (the "Stockholders' Agreement") among the
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Company, the Carlyle Stockholders, the Xxxx Xxxxx Stockholders, the Investor and
certain other stockholders of the Company, (iii) the agreement on the part of
the Investor to provide certain services to the Company pursuant to a Technical
Services Agreement (the "Technical Services Agreement") and (iv) the issuance by
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the Company to the Investor of warrants to purchase an aggregate of 5,000,000
shares of Common Stock evidenced by a Warrant Certificate (the "Warrant
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Certificate"). The Purchase Agreement, the Stockholders' Agreement, the
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Technical Services Agreement, and the Warrant Certificate are collectively
referred to as the "Investment Documents." Copies of the Investment Documents
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have been provided by the Company to each of the other parties to this
Agreement.
In order, among other things, to induce the Investor to enter
into the Investment Transactions, (1) Xxxx Xxxxx International Investment
Corporation ("EMIIC") is willing to invest $10,000,000 in cash in Common Stock,
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(ii) the Series B Preferred Stockholders are willing to exchange the shares of
Series B Preferred Stock owned by them for shares of Common Stock on the basis
described in this Agreement, and (iii) the Carlyle Noteholders are willing to
exchange the Carlyle Notes for shares of Common Stock on the basis described in
this Agreement, in each case upon the terms and conditions set forth in this
Agreement
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants, and agreements set forth in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
agree as follows:
SECTION 1. Recapitalization
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(a) Concurrently with the execution and delivery of this
Agreement, the Company will repay in full the principal amount of and all
interest accrued on, the Bridge Notes and EMIIC will surrender the Bridge Notes
to the Company for cancellation.
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(b) Concurrently with the execution and delivery of this
Agreement, the Company will issue, sell, and deliver (against payment of the A
Purchase Price (as defined below)) to EMIIC, and EMIIC will purchase, accept,
and receive from the Company, 800,000 shares of Common Stock, free and clear of
all liens, claims and encumbrances. The purchase price (the "A Purchase Price")
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for such 800,000 shares of Common Stock will be US$10,000,000, which will be
paid by EMIIC to the Company in immediately available funds on the date of this
Agreement.
(c) Concurrently with the execution and delivery of this
Agreement, the Company will issue, sell and deliver (against payment of the B
Purchase Price (as defined below)) to the several Xxxx Xxxxx Stockholders set
forth on Exhibit B attached to this Agreement, and such Xxxx Xxxxx Stockholders
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severally will purchase, accept and receive from the Company, the number of
shares of Common Stock set forth opposite their names on such exhibit (the "B
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Stock"), free and clear of all liens, claims and encumbrances. The purchase
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price (the "B Purchase Price") for the B Stock will be paid by the several Xxxx
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Xxxxx Stockholders on the date of this Agreement by surrender to the Company of
the number of shares of Series B Preferred Stock set forth on Exhibit B attached
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to this Agreement, duly endorsed in blank or accompanied by duly executed blank
stock powers, which shares will be free and clear of all liens, claims, and
encumbrances.
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(d) Concurrently with the execution and delivery of this
Agreement, the Company will issue, sell, and deliver (against payment of the C
Purchase Price (as defined below)) to the Carlyle Noteholders, and the Carlyle
Noteholders severally will purchase, accept and receive from the Company, the
number of shares of Common Stock determined by dividing (i) the sum of the
principal amount of the Carlyle Notes held by each Carlyle Noteholder as set
forth in the recitals to this Agreement and the amount of interest accrued and
unpaid on each Carlyle Note set forth on Exhibit C hereto (the "Excluded
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Interest") by (ii) $12.50 (the "C Shares"), free and clear of all liens, claims,
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and encumbrances. The purchase price (the "C Purchase Price") for the C Shares
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will be paid by the several Carlyle Stockholders on the date of this Agreement
by surrender to the Company of each of the Carlyle Notes for cancellation, which
notes will be free and clear of all liens, claims, and encumbrances. No
fractional shares or scrip representing fractional shares will be issued upon
the exchange of the Carlyle Notes for the C Shares in accordance with this
Section 1(d). If any such exchange would require the issuance of a fractional
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share, an amount equal to such fraction multiplied by the Closing Price (as
defined below) of the Common Stock on the trading day immediately preceding the
date of this Agreement will be paid to the holder in cash by the Company. In
addition, concurrently with the execution and delivery of this Agreement, the
Company will pay to the Carlyle Noteholders in cash on the date hereof all
accrued and unpaid interest on the Carlyle Notes, other than the Excluded
Interest. As used herein, the term "Closing Price" shall mean on any day the
reported last sale price per share of Common Stock regular way on such day or,
in case no such sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in each case on the New York Stock
Exchange, or, if the shares of Common Stock are not listed or admitted to
trading on such Exchange, the principal national securities exchange on which
the shares of Common Stock are listed or admitted to trading or, if the Common
Stock is not listed or admitted to trading, on any national securities exchange,
the last quoted sale price or, if not so quoted, the average of the closing bid
and asked prices quoted on the Nasdaq National Market, or, if no so quoted, the
average of the closing bid and asked prices as furnished by any member of the
National Association of Securities Dealers, Inc. selected from time to time by
the corporation for that purpose.
(e) The closing of the transactions provided for in this
Section 1 (the "Closing" will take place at the offices of the Company (or at
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such other place as is specified by the Company) on the date of this Agreement.
SECTION 2. Terminated Documents. Effective upon the execution and delivery
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of this Agreement and without any other action, each of the Carlyle Stockholders
and the Xxxx Xxxxx Stockholders, severally and not jointly, hereby (a) agrees
that the Terminated Documents (as defined below) will terminate and be of no
further force and effect and that it will have no further rights thereunder; and
(b) represents and warrants with respect to itself that it has not transferred
any of its rights or interests under or in respect of the Terminated Documents
and that such party has the sole right, capacity, and exclusive authority to
terminate its rights under the Terminated Documents. As used in this Agreement,
the term "Terminated Documents" means (i) the Subscription Agreement dated as of
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February 4, 1994 by and among the Company (formerly known as HM Holding
Corporation) and the other parties named in such agreement, as amended to the
date of this Agreement, (ii) the Bridge Note and the Bridge Note Agreement, and
(iii) the Carlyle Notes
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SECTION 3. Investment Intent. Each of the Carlyle Stockholders and the Xxxx
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Xxxxx Stockholders hereby severally and not jointly represents and warrants to
the Company that the shares of Common Stock to be acquired by the such party
pursuant to this Agreement are to be acquired for the such party's own account
for investment and not with a view to, or for resale in connection with, any
distribution of such shares within the meaning of the Securities Act of 1933, as
amended (the "Securities Act" ).
SECTION 4. Investor Status. In connection with the purchase of the shares
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of Common Stock, each of the Xxxx Xxxxx Stockholders and the Carlyle
Stockholders hereby severally and not jointly represents and warrants to the
Company with respect to itself as follow s
(a) Such party acknowledges that the shares of Common Stock
are not registered under the Securities Act or any applicable state securities
law, and that such shares may not be transferred or sold except pursuant to the
registration provisions of the Securities Act or pursuant to an applicable
exemption therefrom and pursuant to such state securities laws and regulations
as may be applicable.
(b) Such party is knowledgeable, sophisticated, and
experienced in business and financial matters of the type contemplated by this
Agreement and is able to bear the economic risks associated with its investment
in the Company. Such party has been afforded access to information regarding the
Company and its subsidiaries and their respective financial condition, operating
results, properties, liabilities, operations, and management sufficient to
enable it to evaluate the risks and merits of its investment in the Company.
SECTION 5. Other Representations of the Xxxx Xxxxx Stockholders. Each of
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the Xxxx Xxxxx Stockholders hereby further severally and not jointly represents
and warrants to the Company with respect to itself as follows:
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(a) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by such Xxxx Xxxxx Stockholder. This
Agreement has been duly executed by such Xxxx Xxxxx Stockholder and constitutes
a valid and binding obligation of such Xxxx Xxxxx Stockholder, enforceable in
accordance with its terms.
(b) The execution, delivery, and performance by such Xxxx
Xxxxx Stockholder of this Agreement and the consummation of the transactions
contemplated by this Agreement: (i) is within such Xxxx Xxxxx Stockholder's
corporate or partnership power and authority and has been duly authorized by all
necessary corporate or partnership action on the part of such Xxxx Xxxxx
Stockholder, as appropriate; (ii) does not and will not conflict with or
contravene the terms of or require any consent, authorization, or approval
pursuant to such Xxxx Xxxxx Stockholder's certificate of incorporation or
bylaws, partnership agreement or similar organizational document; (iii) does not
and will not violate, conflict with, or result in any breach or
contravention of or require any consent, authorization, approval, exemption, or
other action by or notice or declaration to, or filing with, any court or
administrative or governmental body or agency or other person pursuant to
(A) any material agreement, lease, or contract of such Xxxx Xxxxx Stockholder,
or (B) any applicable statute or any rule or regulation of any governmental
authority or any order or decree applicable to such Xxxx Xxxxx Stockholder.
SECTION 6. Other Representations of the Carlyle Stockholders. Each
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of the Carlyle Stockholders hereby further severally and not jointly represents
and warrants to the Company with respect to itself as follows:
(a) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by such Carlyle Stockholder. This Agreement
has been duly executed by such Carlyle Stockholder and constitutes a valid and
binding obligation of such Carlyle Stockholder, enforceable in accordance with
its terms.
(b) The execution, delivery, and performance by such Carlyle
Stockholder of this Agreement and the consummation of the transactions
contemplated by this Agreement: (i) is within such Carlyle Stockholder's
corporate or partnership power and authority and has been duly authorized by all
necessary corporate or partnership action on the part of such Carlyle
Stockholder, as appropriate; (ii) does not and will not conflict with or
contravene the terms of or require any consent, authorization, or approval
pursuant to such Carlyle Stockholder's certificate of incorporation or bylaws,
partnership agreement or similar organizational document; (iii) does not and
will not violate, conflict with, or result in any breach or contravention of or
require any consent, authorization, approval, exemption, or other action by or
notice or declaration to, or filing with, any court or administrative or
governmental body or agency or other person pursuant to (A) any material
agreement, lease, or contract of such Carlyle Stockholder, or (B) any applicable
statute or any rule or regulation of any governmental authority or any order or
decree applicable to such Carlyle Stockholder.
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SECTION 7. Representations of the Company. The Company hereby represents
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and warrants to each of the Carlyle Stockholders and the Xxxx Xxxxx Stockholders
as follows:
(a) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by the Company. This Agreement has been duly
executed by the Company and constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms. All outstanding shares of the
Company's capital stock are, and the shares of Common Stock to be issued to the
several Carlyle Stockholders and Xxxx Xxxxx Stockholders will be upon such
issuance and receipt by the Company of payment therefor, duly authorized, fully
paid, and nonassessable. The offer, sale, and issuance of the Common Stock to
the several Carlyle Stockholders and the Xxxx Xxxxx Stockholders under this
Agreement do not require registration under the Securities Act or any applicable
state securities laws or blue sky laws, assuming that all representations made
by the Carlyle Stockholders and the Xxxx Xxxxx Stockholders in Sections 3 and 4
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are true.
(b) Each of the representations made by the Company in
Section 3 of the Purchase Agreement is true and correct and is incorporated by
this reference into this Agreement, except that (i) the Company makes no
representation to the Xxxx Xxxxx Stockholders or the Carlyle Stockholders as to
the matters set forth in the first two sentences of Section 3(b)(iii) or in
Section 3(b)(iv) of the Purchase Agreement; and (ii) each reference to
"prejudice in any material respect the rights of the Investor under any of the
Transaction Documents" will be deemed to read as "prejudice in any material
respect the rights of the Carlyle Stockholders or the Xxxx Xxxxx Stockholders
under this Agreement."
SECTION 8. Survival and Indemnification.
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(a) Survival of Representations, Warranties, Covenants, and
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Agreements; Knowledge of Breach. Notwithstanding any otherwise applicable
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statute of limitation, the representations and warranties of the Company
included or provided for in this Agreement will survive the execution and
delivery of this Agreement until the expiration of nine months after the receipt
by the Xxxx Xxxxx Stockholders and the Carlyle Stockholders of audited
consolidated financial statements for the Company, as of and for the year ending
December 31, 1996, together with a report thereon by the Company's independent
public accountants; provided, however, that any representation, warranty,
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covenant, or agreement contained in Sections 3(j) and 3(n) of the Purchase
Agreement and incorporated by reference in this Agreement will survive the
execution and delivery of this Agreement until the expiration of the applicable
statute of limitations (including any waivers or extensions thereof) with
respect to such matters, provided, further, that the provisions of this Section
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8 will constitute the exclusive remedy on the part of the Xxxx Xxxxx
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Stockholders and the Carlyle Stockholders in respect of a breach of the
representations and warranties of the Company contained in this Agreement. The
covenants and other agreements contained in this Agreement will survive the
execution and delivery of this Agreement until the date or dates specified in
such covenant or agreement or the expiration of the applicable statute of
limitations (including any waivers or extensions thereof) with respect to such
matters, whichever is later. In no event will the Company be liable (i) to the
Carlyle Stockholders for any breach of
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the representations, warranties, covenants, and agreements included or provided
for in this Agreement or other document delivered pursuant to this Agreement,
unless and until all claims for which aggregate damages are recoverable under
this Agreement by the Carlyle Stockholders exceed the product of (x) $250,000
and (y) a fraction the numerator of which is the total numbers of shares of
Common Stock issued to the Carlyle Stockholders pursuant to this Agreement and
the denominator is the total number of shares issued by the Company pursuant to
this Agreement (the "Carlyle Stockholder Deductible") or (ii) to the Xxxx Xxxxx
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Stockholders for any breach of the representations, warranties, covenants, and
agreements included or provided for in this Agreement or other document
delivered pursuant to this Agreement, unless and until all claims for which
aggregate damages are recoverable under this Agreement by the Xxxx Xxxxx
Stockholders exceed the product of (x) $250,000 and (y) a fraction the numerator
of which is the total numbers of shares of Common Stock issued to the Xxxx Xxxxx
Stockholders pursuant to this Agreement and the denominator is the total number
of shares issued by the Company pursuant to this Agreement (the "Xxxx Xxxxx
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Stockholder Deductible"), in which case such party will be entitled to damages
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equal to such excess, but, in the case of the Carlyle Stockholders and the Xxxx
Xxxxx Stockholders, not more than the purchase price paid by such party for the
Common Stock acquired under this Agreement by such party plus the charges and
expenses (including reasonable attorneys' fees and expenses) incurred by such
party sustaining such damages in connection with this Agreement and the
transactions contemplated hereby-;
(b) Indemnification. For a period commencing on the date of
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this Agreement and ending, as the case may be, upon the expiration of the
periods specified in Section 8(a), the Company, on the one hand, and each Xxxx
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Xxxxx Stockholder or Carlyle Stockholder, as applicable, on the other, (the
"Indemnifying Party"), will, subject to the limitations set forth in Section
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8(a), indemnify the Xxxx Xxxxx Stockholders or the Carlyle Stockholders, on the
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one hand, or the Company on the other, as the case may be (the "Indemnified
Party") against and in respect of all losses, damages, liabilities, costs, and
expenses (including reasonable attorneys' fees and expenses) incurred in
investigating, preparing or defending any claims covered by this Section 8(b)
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sustained or incurred arising out of any breaches by such Indemnifying Party of
its representations, warranties, covenants, and agreements set forth in this
Agreement. The indemnification provided for by this Section 8(b) will apply
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notwithstanding any investigation made by or on behalf of any party. Any
payments pursuant to this Section 8(b) will be treated as an adjustment to the
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purchase price for all tax purposes.
(c) Method of Asserting Claims. In the event that an
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Indemnified Party shall assert a claim for indemnity under this Section 8, (i)
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the Indemnified Party will promptly after the receipt of notice of the
commencement of any action, investigation, claim, demand or other proceeding by
a third party against such Indemnified Party in respect of which indemnity may
be sought from any Indemnifying Party under this Section 8, notify the
Indemnifying Party in writing of the commencement thereof or (ii) if the claim
is other than such a third party claim, the Indemnified Party will notify the
Indemnifying Party promptly following its discovery of the facts or
circumstances giving rise thereto; provided, that in either case (i) or (ii), no
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such notice need be provided by the Company to an Indemnifying Party who is a
Carlyle Stockholder or an Xxxx Xxxxx Stockholder if the Carlyle Stockholder
Deductible or Xxxx Xxxxx Stockholder Deductible, as applicable, has not been
exceeded and will not be exceeded by such claim or demand and the omission of
the Indemnified Party to so notify such Indemnifying Party of any such action
will not
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relieve such Indemnifying Party from any liability that it may have to such
Indemnified Party under this Section 8(c) unless, and only to the extent that,
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such omission prejudices the ability of the Indemnifying Party to defend such
action, investigation, claim, demand, or other proceeding or to reduce or
mitigate its liability under this Section 8, whether as a result of the
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forfeiture of substantive rights or defenses or otherwise. In case any such
action, claim, or other proceeding is brought against the Indemnified Party such
Indemnified Party will notify the applicable Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to assume the
defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment, provided that the Deductible has
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been or will be exceeded, provided, further, that the Indemnified Party may, at
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its own expense, retain separate counsel to participate in such defense.
Notwithstanding the foregoing, in any action, claim or proceeding in which both
the Indemnifying Party, on the one hand, and an Indemnified Party, on the other
hand, is, or is reasonably likely to become, a party, such Indemnified Party
shall have the night to employ separate counsel at the Indemnifying Party's
expense and to control its own defense of such action, claim or proceeding if,
in the reasonable opinion of counsel to such Indemnified Party, a conflict or
potential conflict exists between the Indemnifying Party, on the one hand, and
such Indemnified Party, on the other hand, that would prevent the representation
of the Indemnified Party by counsel selected by and subject to the control of
the Indemnifying Party under applicable law or codes of professional
responsibility. Each of the Company, the Xxxx Xxxxx Stockholders, and the
Carlyle Stockholders agrees that it will not, without the prior written consent
of the Indemnified Party, settle, compromise, or consent to the entry of any
judgment in any pending or threatened claim, action, or proceeding relating to
the matters contemplated by this Section 8 (if the Indemnified Party is a party
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thereto or has been actually threatened to be made a party thereto) unless such
settlement, compromise, or consent includes an unconditional release of the
Indemnified Party from all liability arising or that may arise out of such
claim, action or proceeding.
SECTION 9. Covenants.
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(a) Inspection Rights. The Company will permit, and cause
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its subsidiaries to permit, the representatives designated by the Xxxx Xxxxx
Stockholders and the Carlyle Stockholders so long as (i) the Xxxx Xxxxx
Stockholders and the Carlyle Stockholders and their affiliates together
beneficially own 1,600,000 shares of Common Stock or (ii) the representation and
warranties of the Company set forth in this Agreement survive, upon reasonable
notice and during normal business hours, to (x) visit and inspect any of the
properties of the Company and its subsidiaries, (y) examine the corporate and
financial records of the Company and its subsidiaries and to make copies
thereof, and (z) discuss the affairs, finances and accounts of any such entities
with the directors, officers, key employees, and (with the prior consent of the
Company, which will not be unreasonably withheld) independent accountants of the
Company and its subsidiaries.
(b) Confidentiality. Each of the Xxxx Xxxxx Stockholders and
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the Carlyle Stockholders will hold in confidence all information and data
obtained by it from the Company or its subsidiaries (whether in connection with
the negotiation of the transactions contemplated by this Agreement, pursuant to
Section 9(a) or otherwise) and will not disclose such information to any person
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or entity without the prior written consent of the Company (except that the Xxxx
Xxxxx Stockholders and the Carlyle Stockholders may disclose such information to
their affiliates,
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directors, officers, and other representatives who require access to such
information in order to enable them to exercise their rights under this
Agreement or for any other proper purpose contemplated thereby and who agree to
be subject to the restrictions set forth in this Section 9(b), provided,
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however, that the provisions of this Section 9(b) will not apply to any
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information or data that can be shown (i) to be generally available to the
public through no fault of such party or its affiliates, directors, officers,
and other representatives or (ii) to have been lawfully obtained by the Xxxx
Xxxxx Stockholders or the Carlyle Stockholders from other sources not subject to
a confidentiality obligation to the Company
SECTION 10. Applicable Law. This Agreement will be governed by and
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construed ice with the laws of the State of Delaware, without regard to any
conflicts of law principles that would require the application of the laws of
any other jurisdiction.
SECTION 11. Parties in Interest; Assignment. This Agreement will be
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binding on and will inure to the benefit of the parties to this Agreement and
their respective successors and permitted assigns. No party may assign this
Agreement or its rights and benefits under this Agreement or delegate and duties
under this Agreement to any other person or entity without the prior written
consent of the other parties.
SECTION 12. Amendment; Waiver. The provisions of this Agreement may be
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amended only by a written instrument executed by each of parties to this
Agreement, and compliance with the provisions of this Agreement may be waived
only by a written instrument executed by each party entitled to the benefits of
such provision. No failure on the part of any party to exercise any right,
power, or privilege granted under this Agreement will operate as a waiver of
such right, power, or privileges nor will any single exercise of such right,
power, or privilege preclude any other or further exercise or party of such
right, power, or privilege or the exercise of any other night, power or
privilege granted under this Agreement.
SECTION 13. Further Assurances. Each party agrees to do, or cause to be
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done, such further acts and to execute and deliver, or to cause to be executed
and delivered, such further agreements, instruments, certificates, and other
documents as may be necessary or appropriate to effectuate and carry out the
purposes of this Agreement.
SECTION 14. Notices and Other Communications. All notices and other
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communications under this Agreement will be in writing and will be given by
delivery in person, by registered or certified mail (return receipt requested
and with postage prepaid thereon) or by cable, telex or facsimile transmission
to the parties at the following addresses (or at such other address as either
party will have furnished to the other in accordance with the terms of this
Section 14):
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if to the Company, to:
HighwayMaster Communications, Inc.
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X Xxxxxxx, Xx.
if to any of the Xxxx Xxxxx Stockholders, to:
Xxxx Xxxxx International Investment Corporation
Xxxxxxx Xxxxx, Xxxxx 000(x)
Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx
West Indies
Attention: Xxxxxxx Xxxxxxx
if to any of the Carlyle Stockholders (except for the
Carlyle Stockholders that are Clipper
Stockholders (as defined in the
Stockholders' Agreement)), to:
The Carlyle Group, L.P.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Ein
if to any Clipper Stockholders, to:
The Clipper Group, L.P
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
All notices and other communications under this Agreement that are addressed as
provided in or pursuant to this Section 14 will be deemed duly and validly given
----------
(a) if delivered in person, upon delivery, (b) if delivered by registered or
certified mail (return receipt requested and with postage paid thereon), 72
hours after being placed in a depository of the United States mails, and (c) if
delivered by cable, telex, or facsimile transmission, upon transmission thereof
and receipt of the appropriate answer back.
SECTION 15. Entire Agreement. This Agreement constitutes
----------------
the entire agreement and understanding of the parties to this Agreement with
respect to the subject matter of this Agreement and supersedes any prior or
contemporaneous oral and prior written agreements or understandings between the
parties with respect to the subject matter of this Agreement.
11
SECTION 16. Headings. The section headings contained in
--------
this Agreement are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 17. Counterparts. This Agreement may be executed in
------------
one or more counterparts, each of which will be deemed an original and all of
which together will constitute one and the same instrument.
SECTION 18. No Group or Beneficial Ownership. Nothing in
--------------------------------
this Agreement will be deemed to constitute any party to this Agreement as
member of a "group" for the purposes of the Securities Exchange Act of 1934, as
amended, or to be an admission that any party to this Agreement beneficially
owns any of the securities of any other party to this Agreement.
SECTION 19. Expenses. The Company will (i) reimburse each
--------
of the Carlyle Stockholders and the Xxxx Xxxxx Stockholders for stamp and other
stock issuance or similar taxes that may be payable in respect of the execution
and delivery of this Agreement or the issuance, delivery, or acquisition of any
shares of Common Stock to be issued under this Agreement (but excluding any
income or similar state of federal taxes). Except as otherwise expressly
provided in this Agreement, the parties will bear their own respective expenses
(including, but not limited to, all compensation and expenses of counsel,
financial advisors, consultants, actuaries, and independent accountants)
incurred in connection with this Agreement and the transactions contemplated by
this Agreement or the Investment Documents.
SECTION 20. Limitation on Company Representations.
-------------------------------------
Notwithstanding any provision of this Agreement to the contrary, the Company
makes no representation or warranty, and will have no obligation to indemnify or
liability for damages for, any matter to the extent that the material facts with
respect to such matter are known to any Carlyle Stockholders or Xxxx Xxxxx
Stockholders as of the date of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
12
IN WITNESS WHEREOF, the parties to this Agreement have caused
this Agreement to be duly executed as of the date first above written.
HIGHWAYMASTER COMMUNICATIONS, INC.
By: _____________________________
Name: _____________________________
Title:_____________________________
CLIPPER CAPITAL ASSOCIATES, L.P.
By: CLIPPER CAPITAL ASSOCIATES, INC.
Its: General Partner
By: ________________________
Name: ________________________
Title: ________________________
CLIPPER/MERBAN, L.P.
By: CLIPPER CAPITAL ASSOCIATES, L.P.
--------------------------------
Its General Partner
By: CLIPPER CAPITAL ASSOCIATES
Its: General Partner
By: ________________________
Name: ________________________
Title: ________________________
CLIPPER/MERCHANT PARTNERS, L.P.
By: CLIPPER CAPITAL ASSOCIATES,
L.P.
Its: General Partner
By: ________________________
Name: ________________________
Title: ________________________
13
By: T.C. GROUP, L.L.C.
Its: General Partner
By:
----------------------------
Name:
-------------------------
Title:
------------------------
CARLYLE-HIGHWAYMASTER INVESTORS II,
L.P.
By: T.C. GROUP, L.L.C.
Its: General Partner
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
CHASE MANHATTAN INVESTMENT
HOLDINGS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
-------------------------------
X.X. XXXX INVESTMENTS LIMITED
By:
--------------------------------
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
ARCHERY PARTNERS
By:
----------------------------------
Its: General Partner
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
THE XXXX XXXXX INVESTMENT
CORPORATION
14
By:
-----------------------------
Name:
-----------------------------
Title
-----------------------------
THE XXXX XXXXX DEVELOPMENT
CORPORATION
By:
-----------------------------
Name:
-----------------------------
Title
-----------------------------
XXXX XXXXX INTERNATIONAL INVESTMENT
CORPORATION
By:
-----------------------------
Name:
-----------------------------
Title
-----------------------------
------------------------------------
Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxxx
15
EXHIBIT A
1. Carlyle Stockholders
--------------------
Clipper Capital Associates, L.P.
Clipper/Merban, L.P.
Clipper/Merchant Partners, X.X.
Xxxxxxx-HighwayMaster Investors, X.X.
Xxxxxxx-HighwayMaster Investors II, X.X.
Xxxxx Manhattan Investment Holdings, Inc.
X.X. Xxxx Investments Limited
Archery Partners
2. Xxxx Xxxxx Stockholders
-----------------------
The Xxxx Xxxxx Investment Corporation
The Xxxx Xxxxx Development Corporation
Xxxx Xxxxx International Investment Corporation
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
16
EXHIBIT B
Number of Shares of Series B
Number of Shares of B Stock Preferred Stock to be
to be Received Surrendered
Name
The Xxxx Xxxxx Development
Corporation 743,284 929.105
Xxxxxx X. Xxxxx 86,436 108.0450
Xxxxxx X. Xxxxxx 34,280 42.85
------- ----------
Totals 864,000 1.080
======= ==========
17
EXHIBIT C
Name Excluded Interest
Clipper Capital Associates, L.P. $ 148.96
Clipper/Merban, L.P. 8,396.97
Clipper/Merchant Partners, L.P. 8,290.78
Carlyle-HighwayMaster Investors, L.P. 25,866.62
Carlyle-HighwayMaster Investors II, L.P. 2,436.33
Chase Manhattan Investment Holdings, Inc. 6,191.77
X.X. Xxxx Investments Limited 10,522.67
Archery Partners 1,282.93
----------
$63,137.03
==========
18
