EXHIBIT 10.13
REGISTRATION RIGHTS AGREEMENT
------------ ------ ---------
This Registration Rights Agreement is dated as of 12th April , 1999 by and among
SkyNet Holdings, Inc., a Delaware corporation (the "Company") and Xxxxx Xxxxxx
Xxxx, Xxxxxxxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx Xxxxx,
Xxx Xxxx and Xxxxx Xxxx Xxxxxxx (collectively the "Holders"), shareholders of
Freight on Board International Limited, a United Kingdom corporation
("Acquiree").
WITNESSETH:
----------
WHEREAS, the Company and Holders are parties to a Share Purchase Agreement dated
as of 12th April, 1999 (the "Agreement") pursuant to which the Company has
elected to purchase shares of shares of Acquiree (the "Share Acquisition");
WHEREAS, pursuant to the Share Acquisition, the Holders are to receive certain
shares of the Company's $0.000l par value common stock (the "Common Stock"); and
WHEREAS, the parties hereto desire to set forth their agreement concerning the
registration under the Securities Act of 1933, as amended, of the Common Stock
to be issued to the Holders in connection with the Share Acquisition.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
---------
1. Definitions.
-----------
(a) "Closing" shall mean that date upon which a closing of the Share
Acquisition occurs.
(b) "Company" shall mean SkyNet Holdings, Inc.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934.
(d) "Holders" shall mean Xxxxx Xxxxxx Xxxx, Xxxxxxxxxxx Xxxxx Xxxxxxx, Xxxx
Xxxxxxx Xxxxxx Xxxxx, Xxxxxx Xxxx Xxxxx, Xxx Xxxx and Xxxxx Xxxx Xxxxxxx,
constituting the former shareholders of Acquiree who have received, and may
receive subsequent to the date hereof, shares of the Company's Common Stock
pursuant to the Share Acquisition.
(e) "Person" means an individual, a partnership (general or limited),
corporation, limited liability company, joint venture, business trust,
cooperative, association or other form of business organisation, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or
incompetent person, a quasi-governmental entity, a government or any agency,
authority, political subdivision or other instrumentality thereof, or any other
entity.
(f) "Registration Statement' shall mean the Registration Statement of the
Company filed with the SEC pursuant to the provisions of Section 2 of this
Agreement which covers the resale of the Restricted Stock on an appropriate form
then permitted by the SEC to be used for such registration and the sales
contemplated to be made thereby under the Securities Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
Registration Statement, including any pre-and post-effective amendments thereto,
in each case including the prospectus contained therein, all exhibits thereto
and all materials incorporated by reference therein.
(g) "Restricted Stock" shall mean all or any shares of Common Stock or other
equity securities of the Company that may be issued to the Holders pursuant to
the Share Acquisition, and any additional shares of Common Stock or other equity
securities of the Company issued or issuable after the date hereof in respect of
any such securities (or other equity securities issued in respect thereof) by
way of a stock dividend or stock split, in connection with a combination,
exchange, reorganisation, recapitalisation or reclassification of Company
securities, or pursuant to a merger, division, consolidation or other similar
business transaction or combination involving the Company; provided that: as to
any particular shares of restricted stock, such securities shall cease to
constitute restricted stock (i) when a registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of thereunder, or (ii) when and to
the extent such securities are permitted to be distributed pursuant to Rule 144
(or any successor provision to such Rule) under the Securities Act or are
otherwise freely transferable to the public without further registration under
the Securities Act.
(h) "Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar or successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at any relevant time.
(i) "SEC" shall mean the United States Securities and Exchange Commission.
(k) "Trading Day" shall mean any day on which the New York Stock Exchange is
open for trading.
(j) "Share Acquisition" shall mean the acquisition of shares of the Acquiree
pursuant to the terms of the Agreement entered into on April 1999.
Capitalised terms used in this Registration Rights Agreement and not otherwise
defined herein shall have the same meaning ascribed thereto in the Agreement.
2
2. Incidental ("Piggyback") Registration Rights.
------------------------ -------------------
(a) If at any time after September 30, 1999, the Company proposes to file a
registration statement under the Securities Act (except with respect to
registration statements on Forms X-0, X-0, or any other form not available for
registering the Restricted Stock for sale to the public), with respect to an
offering of Common Stock for its own account, then the Company shall in each
case give written notice of such proposed filing to the Holders at least 15 days
before the anticipated filing date of the registration statement with respect
thereto (the "Piggyback Registration"), and shall, subject to Section 2(b) and
2(c) below, include in such Piggyback Registration such amount of Restricted
Stock as each such Holder may request within 20 days of the receipt of such
notice.
(b) If a Piggyback Registration relates to an underwritten primary registration
on behalf of the Company, and the managing underwriter thereof advises the
Company in writing that in its opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the Company, the
Company shall include in such registration (i) first, the securities the Company
proposes to sell, (ii) second, the Restricted Stock requested to be included in
such registration to the extent that the number of shares to be registered will
not, in the opinion of the managing underwriter, adversely affect the offering
of the securities pursuant to clause (i), pro rata among the Holders of such
Restricted Stock on the basis of the number of shares owned by such Holders and
(iii) third, provided that all Restricted Stock requested to be included in the
registration statement have been so included, any other securities requested to
be included in such registration.
(c) Notwithstanding anything to the contrary contained herein, the Company's
obligation in subparagraphs 2(a) and 2(b) above shall extend only to the
inclusion of the Restricted Stock in a Piggyback Registration Statement filed
under the Securities Act. The Company shall have no obligation to assure the
terms and conditions of distribution, to obtain a commitment from an underwriter
relative to the sale of the Restricted Stock or to otherwise assume any
responsibility for the manner, price or terms of the distribution of the
Restricted Stock.
(d) EXCEPT WITH RESPECT TO THE SHARES OF COMMON STOCK PERMITTED TO BE SOLD BY
THE HOLDERS PURSUANT TO SUBPARAGRAPHS 2(A) AND 2(B) ABOVE, THE REMAINDER OF THE
SHARES OF THE COMPANY'S COMMON STOCK ACQUIRED (OR TO BE ACQUIRED) BY THE HOLDERS
PURSUANT TO THE SHARE ACQUISITION MAY NOT, WITHOUT THE WRITTEN CONSENT OF THE
COMPANY, BE SUBJECT TO ANY TRANSFER, DISPOSITION, SALE OR ENCUMBRANCE FOR A
PERIOD OF TWENTY-FOUR (24) MONTHS FROM THE CLOSING OF THE SHARE ACQUISITION.
3. Registration Procedures. Whenever it is obligated to register any
-----------------------
Restricted Stock pursuant to this Agreement, the Company shall:
(a) prepare and file with the Commission a Registration Statement with respect
to the Restricted Stock in the manner set forth at Paragraph 2 hereof and use
its best
3
efforts to cause such Registration Statement to become effective as promptly as
possible and to remain effective for that period identified in subparagraph 3(g)
hereafter;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective for the period
specified in subparagraph 3(g) below and to comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such Registration Statement in accordance with the Holders' intended method
of disposition set forth in such Registration Statement for such period;
(c) furnish to the Holders and to each underwriter, if any, such number of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus), as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such Registration Statement;
(d) use its best efforts to register or qualify the Restricted Stock covered by
such Registration Statement under the securities or blue sky laws of such
jurisdictions as the Holders, or, in the case of an underwritten public
offering, the managing underwriter shall reasonably request; provided, however,
that the Company shall not for any such purpose be required to qualify generally
to transact business as a foreign corporation in any jurisdiction where it is
not so qualified or to consent to general service of process in any such
jurisdiction;
(e) immediately notify the Holders under such Registration Statement and each
underwriter, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus contained in such Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required or necessary to be stated therein in order to make the
statements contained therein not misleading in light of the circumstances under
which they were made;
(f) make available for inspection by the Holders, any underwriter participating
in any disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any such Holders or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by the Holders, underwriter, attorney,
accountant or agent in connection with such Registration Statement,
(g) for purposes of subparagraphs 3(a) and 3(b) above, the period of
distribution of Restricted Stock shall be deemed to extend until the earlier of:
(A) in an underwritten public offering of all of the Restricted Stock, the
period in which each underwriter has completed the distribution of all
securities purchased by it; (B) in any other registration, the period in which
all shares of Restricted Stock covered thereby shall have been sold; and (C) a
period of two (2) years from the effective date of the
4
first Registration Statement filed by the Company with the SEC pursuant to this
Agreement.
(h) if the Common Stock of the Company is listed on any securities exchange or
automated quotation system, the Company shall use its best efforts to list (with
the listing application being made at the time of the filing of such
Registration Statement or as soon thereafter as is reasonably practicable) the
Restricted Stock covered by such Registration Statement on such exchange or
automated quotation system;
(i) enter into normal and customary underwriting arrangements or an
underwriting agreement and take all other reasonable and customary actions if
the Holders sell their shares of Restricted Stock pursuant to an underwriting
(however, in no event shall the Company, in connection with such underwriting,
be required to undertake any special audit of a fiscal period in which an audit
is normally not required);
(j) notify the Holders if there are any amendments to the Registration
Statement, any requests by the SEC to supplement or amend the Registration
Statement, or of any threat by the SEC or state securities commission to
undertake a stop order with respect to sales under the Registration Statement;
and
(k) cooperate in the timely removal of any restrictive legends from the shares
of Restricted Stock in connection with the resale of such shares covered by an
effective Registration Statement,
4. Expenses.
--------
(a) For the purposes of this Paragraph (4), the term "Registration Expenses
shall mean: all expenses incurred by the Company in complying with paragraph (2)
of this Agreement, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, "blue sky" fees, fees of the National
Association of Securities Dealers, Inc. ("NASD"), fees and expenses of listing
shares of Restricted Stock on any securities exchange or automated quotation
system on which the Company's shares are listed and fees of transfer agents and
registrars. The term "Selling Expenses" shall mean; all underwriting discounts
and selling commissions applicable to the sale of Restricted Stock and all
accountable or non-accountable expenses paid to any underwriter in respect of
the sale of Restricted Stock.
(b) Except as otherwise provided herein, the Company will pay all Registration
Expenses in connection with the Registration Statement filed pursuant to
paragraph (2) of this Agreement. All Selling Expenses in connection with any
Registration Statement filed pursuant to paragraph (2) of this Agreement shall
be borne by the participating Holders in proportion to the number of shares sold
by each, or by such persons other than the Company (except to the extent the
Company may be a seller) as they may agree.
5. Obligations of Holders.
-------------- -------
5
(a) In connection with each registration hereunder, each selling Holder will
furnish to the Company in writing such information with respect to such seller
and the securities held by such seller, and the proposed distribution by him or
them as shall be reasonably requested by the Company in order to assure
compliance with federal and applicable state securities laws as a condition
precedent to including such seller's Restricted Stock in the Registration
Statement. Each selling Holder also shall agree to promptly notify the Company
of any changes in such information included in the Registration Statement or
prospectus as a result of which there is an untrue statement of material fact or
an omission to state any material fact required or necessary to be stated
therein in order to make the statements contained therein not misleading in
light of the circumstances then existing.
(b) In connection with each registration pursuant to this Agreement, the
Holders whose shares are included therein will not effect sales thereof until
notified by the Company of the effectiveness of the Registration Statement, and
thereafter will suspend such sales after receipt of telegraphic or written
notice from the Company to suspend sales to permit the Company to correct or
update a Registration Statement or prospectus. At the end of any period during
which the Company is obligated to keep a Registration Statement current, the
Holders included in said Registration Statement shall discontinue sales of
shares pursuant to such Registration Statement upon receipt of notice from the
Company of its intention to remove from registration the shares covered by such
Registration Statement which remain unsold, and such Holders shall notify the
Company of the number of shares registered which remain unsold immediately upon
receipt of such notice from the Company.
6. Information Blackouts and Holdbacks.
----------- ------------- ---------
(a) At any time when a Registration Statement effected pursuant to Paragraph 2
relating to Restricted Stock is effective, upon written notice from the Company
to the Holders that the Company has determined in good faith that sale of
Restricted Stock pursuant to the Registration Statement would require disclosure
of non-public material information, the Holders shall suspend sales of
Restricted Stock pursuant to such Registration Statement until such time as the
Company notifies the Holders that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to such
Registration Statement may otherwise be resumed.
(b) Each Holder of Restricted Stock shall not effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of the
Company, or any securities convertible into or exchangeable or exercisable for
such securities, during the 30 days prior to and the 120-day period beginning on
the effective date of any underwritten primary registration undertaken by the
Company (except as part of such underwritten registration), unless the
underwriter managing the registered public offering otherwise agrees.
7. Indemnification.
---------------
(a) The Company agrees to indemnify, to the extent permitted by law, each
Holder of Restricted Stock, its officers and directors and each Person who
controls such Holder (within the meaning of the Securities Act) against all
losses, claims,
6
damages, Liabilities and expenses joint or several, to which an Indemnified
person may become subject under the Securities Act or any other statute or at
common law, insofar as such liability (or action in respect thereof) arises out
of or is based upon (a) any alleged untrue statement of material fact contained
in any Registration Statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or (b) any alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
state securities or other blue sky laws applicable to the Company in connection
with such registration, except insofar as the same are caused by or contained in
any information furnished to the Company by such Holder for use therein or by
such Holder's failure to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such Holder with a sufficient number of copies of the same.
(b) In connection with any Registration Statement m which a Holder of
Restricted Stock is participating, each such Holder shall furnish to the Company
in writing such information and affidavits as the Company reasonably requests
for use in connection with any such Registration Statement or prospectus and, to
the extent permitted by law, shall indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the Registration Statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished by such
Holder; provided that the obligation to indemnify shall be individual, not joint
and several, for each Holder and shall be limited to the net amount of proceeds
received by such Holder from the sale of Restricted Stock pursuant to such
Registration Statement.
(c) Any Person entitled to indemnification hereunder shall (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not
impair any Person's right to indemnification hereunder to the extent such
failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defence of such claim with counsel
reasonably satisfactory to the indemnified party. If such defence is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defence of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
7
(d) The indemnification provided for under this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities, The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
8. Miscellaneous Provisions.
------------- ----------
(a) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware.
(b) Counterparts This Agreement may be signed in any number of counterparts,
------------
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(c) Amendment and Waivers. Except as otherwise provided herein, the provisions
---------------------
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given without the
written consent of the Company and the Holders.
(d) Notices. All communications under this Agreement shall be sufficiently
-------
given if delivered by hand or by overnight courier or mailed by registered or
certified mail, postage prepaid, addressed,
(i) if to the Company, to:
Xx. Xxxxxxxxx Xxxxx
President and Chief Executive Officer
SkyNet Holdings, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
8
with a copy to
Xxxxxxx X. Xxxxx, Esquire
Xxxxxxxx Ingersoll, P.C.
Eleven Penn Center
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Telecopy Number: (000)0000000
and
Xxx D E. Xxxxxx
Xxxxx & Co.
Beaufort House Chertsey Street
Guildford Surrey GUI 4HA
Telephone Number: x00(0) 0000 00 00 00
Facsimile Number: 1483 5673 30
(ii) if to the Holders, to the address identified on the books and records of
the Company;
or, at such other address as any of the parties shall have furnished in writing
to the other parties hereto.
(e) Successors and Assigns: Holders as Beneficiaries. This Agreement shall
------------------------------------------------
inure to the benefit of and be binding upon the parties and their respective
successors and assigns, and the agreements of the Company herein shall inure to
the benefit of the Holders and their respective successors and assigns.
(f) Headings. The headings in this Agreement are for convenience of reference
--------
only and shall not limit or otherwise affect the meaning hereof.
(g) Entire Agreement: Survival Termination. This Agreement is intended by the
------ -------------------------------
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9
ATTEST: SKYNET HOLDINGS, INC.
By: /s/ XXXXXXXXX XXXXX By: /s/ XXXXXX X. XXXXXXXX
Name: Xxxxxxxxx Xxxxx Xxxxxx X. Xxxxxxxx
Title: President Chief Financial Officer
HOLDERS
XXXXX XXXXXX /s/ X X XXXX
Witness Xxxxx Xxxxxx Xxxx
XXXXX XXXXXX /s/ C XXXXXXX
Witness Xxxxxxxxxxx Xxxxx Xxxxxxx
XXXXX XXXXXX /s/ XXXX XXXXX
Witness Xxxx Xxxxxxx Xxxxxx Xxxxx
XXXXX XXXXXX /s/ XXXX XXXXX AS ATTORNEY FOR XXXXXX XXXXX
Witness Louisa Xxxx Xxxxx
XXXXX XXXXXX /s/ C XXXXXXX AS ATTORNEY FOR XXXXX XXXXXXX
Witness Xxxxx Xxxx Xxxxxxx
XXXXX XXXXXX /s/ X X XXXX AS ATTORNEY FOR XXX XXXX
Witness Xxx Xxxx
10
