Exhibit 10.5
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (the "Agreement") is entered into and
effective this 23rd day of September, 2003, by and among Xxxxxx Xxxxxxx, a
resident of the State of North Carolina ("X. Xxxxxxx"), Rose Xxxx Xxxxxxx, a
resident of the State of North Carolina ("X. Xxxxxxx") (individually and as
custodian for the benefit of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx), Xxxxx Xxxxxxx,
a resident of the State of North Carolina ("Xxxxxxx"), Xxxx Xxxxxxx, a resident
of the State of North Carolina ("X. Xxxxxxx"), Xxxxxx Xxxxxx Xxxxxxx, a resident
of the State of North Carolina ("X. Xxxxxxx"), Xxxx Xxxxxxxxxx, a resident of
the State of North Carolina ("Kennington"), Xxxxxxx Xxxxxx, a resident of the
State of North Carolina ("Packer"), Xxxxxxx-Xxxxx Investment Fund, L.L.C., a
North Carolina limited liability company ("Xxxxxxx-Xxxxx"), and Transbotics
Corporation, a Delaware corporation (the "Company") (X. Xxxxxxx, R. Imbleau,
Hessler, X. Xxxxxxx, M. Robison, Kennington, Packer and Xxxxxxx-Xxxxx are
collectively referred to as "Shareholders" and individually as a "Shareholder").
WHEREAS, X. Xxxxxxx currently owns one hundred eighty-two thousand
nine hundred eighty (185,980) shares of the Company's common stock (the "X.
Xxxxxxx Shares");
WHEREAS, X. Xxxxxxx currently owns one hundred eighty-two thousand
nine hundred eighty (184,480) shares of the Company's common stock (the
"X. Xxxxxxx Shares");
WHEREAS, X. Xxxxxxx currently holds as custodian for the benefit of
Xxxxxx Xxxxxxx thirty thousand (30,000) shares of theCompany's common stock
(the "X. Xxxxxxx Shares") and currently holds as custodian for the benefit of
Xxxxxxx Xxxxxxx thirty thousand (30,000) shares of the Company's common stock
(the "X. Xxxxxxx Shares");
WHEREAS, Citigroup Global Markets, Inc., d/b/a Xxxxx Xxxxxx
(hereinafter "Citigroup") currently holds as custodian for the benefit
of X. Xxxxxxx seventy-five thousand (75,000) shares of the Company's
common stock in the Xxxxxx Xxxxxxx XXX account (the "C. Xxxxxxx XXX Shares"
and currently holds as custodian for the benefit of X. Xxxxxxx seventy-five
thousand (75,000) shares of the Company's common stock in the Xxxx Xxxx Xxxxxxx
XXX account (the "R. Xxxxxxx XXX Shares") (the X. Xxxxxxx Shares, X. Xxxxxxx
Shares, X. Xxxxxxx Shares, X. Xxxxxxx Shares, C. Xxxxxxx XXX Shares and R.
Xxxxxxx XXX Shares are collectively referred to as the "Imbleau Shares");
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WHEREAS, Xxxxxxx currently owns five hundred seventy-five thousand nine
hundred sixty (575,960) shares of the Company's common stock (the "Xxxxxxx
Shares");
WHEREAS, X. Xxxxxxx currently owns one hundred nineteen thousand two
hundred sixty-one (119,261) shares of the Company's common stock (the "X.
Xxxxxxx Shares") and X. Xxxxxxx currently owns fifty thousand seven hundred
thirty-nine (50,739) shares of the Company's common stock (the "X. Xxxxxxx
Shares", together with the X. Xxxxxxx Shares, the "Xxxxxxx Shares");
WHEREAS, the Company is offering for sale to Kennington, Packer and
Xxxxxxx-Xxxxx (i) One Million Two Hundred Thousand (1,200,000) shares of its
common stock, $0.01 par value per share (the "Offering Shares"), at a price per
share of Twenty-Five Cents ($0.25) and (ii) $300,000.00 in 6% Convertible
Subordinated Notes (the "Notes") in a private offering (the "Offering") (the
Imbleau Shares, the Xxxxxxx Shares, the Xxxxxxx Shares and the Offering Shares
are hereinafter collectively referred to as the "Shares");
WHEREAS, Kennington has offered to purchase Three Hundred Thousand
(300,000) of the Offering Shares and a $75,000.00 Note pursuant to that certain
Subscription Agreement dated September 23, 2003 between Kennington and the
Company;
WHEREAS, Packer has offered to purchase Three Hundred Thousand
(300,000) of the Offering Shares and a $75,000.00 Note pursuant to that certain
Subscription Agreement dated September 23, 2003 between Packer and the Company;
WHEREAS, Xxxxxxx-Xxxxx has offered to purchase Six Hundred Thousand
(600,000) of the Offering Shares and a $150,000.00 Note pursuant to that certain
Subscription Agreement dated September 23, 2003 between Xxxxxxx-Xxxxx and the
Company;
WHEREAS, the Company has agreed to provide certain registration rights
under the Securities Act of 1933, as amended (hereinafter the "Securities Act")
to (i) X. Xxxxxxx, R. Imbleau, Hessler, X. Xxxxxxx and X. Xxxxxxx for the
Imbleau Shares, the Xxxxxxx Shares and the Xxxxxxx Shares, respectively, and
(ii) Kennington, Packer and Xxxxxxx-Xxxxx for their respective portions of the
Offering Shares, and the shares issuable to each of them upon conversion of the
Notes (the "Conversion Shares");
WHEREAS, the Company has agreed to provide certain preemptive rights to
WHEREAS, Citigroup joins in the execution of this Agreement solel
Xxxxxxx XXX Shares.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties agree as follows:
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ARTICLE I: REGISTRATION RIGHTS
1.1 Registration Statement. Subject to Section 1.3 hereof, the Company
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shall prepare and file with the Securities and Exchange Commission ("SEC")
within 180 days after the date hereof, a registration statement on the
appropriate form and in compliance in all material respects with the Securities
Act (the "Registration Statement"), covering the Shares and the Conversion
Shares (the Shares and the Conversion Shares being registered under a
Registration Statement being referred to as the "Registered Securities"), and
use its reasonable best efforts to have the Registration Statement declared
effective as promptly as practicable.
1.2 Amendments and Supplements. The Company shall use its best efforts
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to prepare and file with the SEC such amendments and supplements to the
Registration Statement that may be necessary to keep the Registration Statement
effective (including any amendments or supplements that may be required as a
result of any changes in any Shareholder's plan of distribution) until the
earlier of the date as all the Registered Securities subject to a Registration
Statement have been sold by Shareholder or any Affiliate (for purposes of this
Section as defined in Rule 405 of the Securities Act) of Shareholder to whom
Shareholder shall have transferred the Registered Securities, or the date that
is ten (10) years from the date hereof (including any extensions provided for in
Section 1.3, the "Effectiveness Period") (such transferee of Shareholder
hereinafter included in the term "Shareholder").
1.3 Suspension of Effectiveness, Amendment or Supplement Filing.
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Notwithstanding the foregoing, the Company shall have the right (i) to suspend
effectiveness of a currently filed Registration Statement or delay the filing of
the Registration Statement or of any amendment or supplement thereto for a
period of up to ninety (90) days if, in the good faith judgment of the Company
or upon the advice of counsel to the Company, such suspension of effectiveness
or delay in amendment or supplement would be in the best interests of the
Company at such time due to a pending material transaction or other material
development that has not been publicly disclosed and the disclosure of which
would not be in the best interests of the Company at such time (a "Material
Transaction"), or to negotiate, effect or complete any transaction that the
Company reasonably believes might be jeopardized, delayed or made more costly to
the Company by disclosure in the Registration Statement; (ii) in the event that
audited financial information for an entity that the Company has acquired or is
proposing to acquire in whole or in part must be included in the Registration
Statement but is not available, to suspend effectiveness of the Registration
Statement for a period of up to ten (10) days after the necessary audited
financial information is available to the Company, (iii) to suspend sales under
the Registration Statement in the event that the Company undertakes a public
offering of Common Stock in an amount greater than $10 million for a period
commencing ninety (90) days prior to the closing of the sale in the public
offering until sixty (60) days after the closing of the sale to the public in
the offering, unless the Company or, in the case of an underwritten offering,
the lead underwriter for the offering, consents to a waiver of such suspension
or to an earlier resumption of sales under the Registration Statement, or (iv)
as required by law or rules and regulations of the SEC. Notwithstanding any
provision herein to the contrary, the aggregate number of days during any given
twelve (12) month period in which the effectiveness of the Registration
Statement, once effective, may be suspended at the request of the Company under
sub-item (i) above shall not exceed ninety (90) days, and the Effectiveness
Period shall be extended by the total number of days during which the filing has
been deferred or the effectiveness of the Registration Statement has been
suspended or sales under the Registration Statement have been suspended under
sub-items (i) through (iii) above. The Company will give each of the
Shareholders prompt written notice of any decision to defer or suspend
effectiveness of the Registration Statement and will use its best efforts to
ensure that the filing or use of the Registration Statement may be completed or
resumed, as the case may be, as soon as, in the good faith judgment of the
Company, is practicable. Upon delivery of such written notice, each of the
Shareholders will forthwith discontinue any disposition of the Registered
Securities until such time as Shareholder receives a supplemented or amended
Registration Statement or until it is advised by the Company that it may
continue with the disposition of the Registered Securities. Furthermore, in the
event a Shareholder's Holdings of Shares, including for this Section 1.3, the
shares of common stock issuable upon exercise of any options, warrants or the
exchange or conversion of other convertible securities of the Company then by
held by the Shareholder (for purposes of this Section 1.3, "Shareholder's
Holdings" shall include shares held by Shareholder's family members, entities
controlled by such Shareholder or such Shareholder's family members), is below
Five Percent (5.0%) of the total number of shares of the Company's common stock
outstanding on a fully diluted basis, then such Shareholder's Shares shall not
be included in the Registration Statement.
1.4 Stop Orders. The Company shall promptly inform the Shareholders
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after it has received notice or obtained knowledge thereof of the issuance by
the SEC of any stop order suspending the effectiveness of the Registration
Statement, of the suspension of the qualification of the Registered Securities
for offering or sale in any jurisdiction, or of the initiation or threatening of
any proceeding for any such purpose if such stop order, suspension or proceeding
would prohibit the resale of the Registered Securities by any Shareholder; and
it will promptly use its reasonable best efforts to prevent the issuance of any
stop order or to obtain its withdrawal if such a stop order should be issued.
1.5 Securities Act Compliance. Within the time during which a
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prospectus is required to be delivered under the Securities Act, the Company
shall use its best efforts to comply with all requirements imposed upon it by
the Securities Act, as now and hereafter amended, and by the rules and
regulations promulgated by the SEC, as from time to time in force, so far as
necessary to permit the continuance of sales of the Registered Securities as
contemplated by the provisions hereof and the prospectus. If during such period
any event occurs as a result of which the prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the prospectus to
comply with the Securities Act, the Company will promptly notify the
Shareholders and will, subject to the provisions of Section 1.3 above, amend the
Registration Statement or supplement the prospectus so as to correct such
statement or omission or effect such compliance and will immediately notify the
Shareholders of the filing and effectiveness of each amendment to the
Registration Statement and the filing of each supplement to the prospectus.
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1.6 State Securities Law Compliance. The Company shall use its best
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efforts to register and qualify the Registered Securities under the securities
laws of such jurisdictions as any of the Shareholders may reasonably request and
to continue such qualifications in effect so long as the Registration Statement
is kept effective pursuant to this Agreement; provided, however, that the
Company shall not be obligated, by this Agreement, to (i) qualify to do business
as a foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for this section; (ii) subject itself to taxation in any
such jurisdiction; or (iii) consent to general service of process in any such
jurisdiction.
1.7 Underwritten Offerings. If the Registered Securities are to be sold
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in an underwritten offering, the Company will furnish, at the request of the
selling Shareholders, on the date that such Registered Securities are delivered
to the underwriters for sale in an underwritten public offering, (i) an opinion,
dated as of such date, of counsel for the Company for the purposes of such
registration, addressed to the underwriters, in a customary form and covering
matters of the type customarily covered in opinions of issuer's counsel
delivered to the underwriters in underwritten public offerings, and such other
legal matters as such underwriter may reasonably request, and (ii) a "comfort"
letter, dated as of such date, signed by the independent public accountants of
the Company who have certified the Company's financial statements included in
such registration statement, addressed to the underwriters, in a customary form
and covering matters of the type customarily covered in accountants' "comfort"
letters delivered to the underwriters in underwritten public offerings and such
other financial information (including information as to the period ending not
more than five business days before the date of such letter) as such underwriter
may reasonably request; and, with each Shareholder, enter into customary
agreements (including an underwriting agreement in customary form) and take such
other actions as are reasonably required in order to expedite or facilitate the
disposition of Registered Securities in an underwritten offering.
1.8 Registration Expenses. The Company shall bear all expenses in
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connection with the procedures in this Article 1 (including all federal and
state registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses and the
expense of any special audit incident to or required by any such registration),
other than underwriting discounts, selling commissions, and fees and the
expenses, if any, of counsel or other advisers to any of the Shareholders, which
shall be borne by the Shareholders.
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1.9 Shareholder Undertakings. Each Shareholder of the Registered
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Securities shall fully cooperate with and furnish to the Company such
information, documents, representations and agreements regarding such
Shareholder and the distribution of such Registered Securities as the Company
may from time to time reasonably request in writing in connection with such
registration. Each Shareholder further agrees by acquisition of such Registered
Securities to give at least five (5) business days' prior written notice to the
Company of any proposed sale of Registered Securities pursuant to an effective
Registration Statement, specifying the proposed date of such sale, and not to
make such sale (i) unless such five (5) business days elapse without response
from the Company or (ii) in the event the Company responds by stating that an
amendment to such Registration Statement or supplement to the prospectus must be
filed in accordance with this Article 1, until the Company notifies the
Shareholder that the Registration Statement has been amended or the prospectus
supplemented as required. Each Shareholder further agrees that if the Registered
Securities are not sold on the date specified in such notice to the Company, it
will not sell any Registered Securities without again complying with the notice
provisions of this Agreement.
ARTICLE 2: INDEMNIFICATION
2.1 Indemnification of Shareholders. The Company shall indemnify each
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Shareholder, each of its officers, directors and constituent partners and
members, legal counsel for the Shareholder, and each person controlling (within
the meaning of the Securities Act) such Shareholder, with respect to which
registration, qualification or compliance of Registered Securities has been
effected pursuant to this Agreement against all claims, losses, damages or
liabilities (or actions in respect thereof) to the extent such claims, losses,
damages or liabilities arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus or
other document (including any related Registration Statement) incident to any
such registration, qualification or compliance, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of any rule or regulation promulgated under the Securities Act
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance;
and the Company will reimburse each such Shareholder, such directors, officers,
partners, members, persons, law and accounting firms control persons, for any
legal and any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action;
provided, that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based upon (i) any untrue statement or omission based upon written information
furnished to the Company by such Shareholder (or its officers, directors,
shareholders, managers, members, partners, controlling persons of Shareholders,
legal counsel or accountants) and stated to be for use in connection with the
offering of Registered Securities, (ii) failure of any Shareholder to provide
its transferee a copy of a prospectus or other related documents to the
Registered Securities, or (iii) any untrue statement, alleged untrue statement
or omission or alleged omission which was corrected, amended or supplemented in
a subsequent prospectus or other related documents to the Registered Securities,
and, having been advised in writing of the availability of such corrected,
amended or supplemented prospectus or other related documents to the Registered
Securities, the Shareholder failed to obtain and deliver it to such
Shareholder's transferees.
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The indemnity agreement provided in this Section 2.1
shall not apply to any amounts paid in settlement of any such loss, claim,
damage or liability or any action in respect thereof if such settlement is
effected without the consent of the Company (such consent not to be unreasonably
withheld).
2.2 Indemnification of the Company. Each Shareholder (and jointly and
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severally with any person controlling such Shareholder) will indemnify the
Company, each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's securities
covered by such a Registration Statement, each person who controls the Company
or such underwriter within the meaning of the Securities Act, and each other
such Shareholder, each of its officers, directors and constituent partners and
each person controlling such other Shareholder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
upon any untrue statement (or alleged untrue statement) of a material fact
contained in any Registration Statement, prospectus, offering circular or other
document or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by such Shareholder of any rule or regulation
promulgated under the Securities Act applicable to such Shareholder and relating
to action or inaction required of such Shareholder in connection with any such
registration, qualification or compliance, and will reimburse the Company, such
Shareholder, such directors, officers, partners, persons, law and accounting
firms, underwriters or control persons for any legal and any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Shareholder
and stated to be specifically for use in connection with the offering of
Registered Securities; provided, however, that each Shareholder's liability
under this Section 2.2 shall not exceed such Shareholder's proceeds from the
offering of Registered Securities made in connection with such registration,
unless such liability arises entirely from the willful misconduct of such
Shareholder.
2.3 Conduct of Indemnification Proceedings. If any person shall be
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entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party
shall give prompt notice to the party from which such indemnity is sought (the
"Indemnifying Party") of any claim or of the commencement of any proceeding with
respect to which such Indemnified Party seeks indemnification or contribution
pursuant hereto; provided, however, that the delay or failure to so notify the
Indemnifying Party shall not relieve the Indemnifying Party from any obligation
or liability except to the extent that the Indemnifying Party has been
materially prejudiced by such delay or failure.
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The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party promptly after the receipt of written notice from
such Indemnified Party of such claim or proceeding, to assume, at the
Indemnifying Party's expense, the defense of any such claim or proceeding, with
counsel reasonably satisfactory to such Indemnified Party; provided, however,
that (i) an Indemnified Party shall have the right to employ separate counsel in
any such claim or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless: (A) the Indemnifying Party agrees to pay such fees and expenses;
(B) the Indemnifying Party fails promptly to assume the defense of such claim or
proceeding or fails to employ counsel reasonably satisfactory to such
Indemnified Party; or (C) the named parties to any proceeding (including
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to it that are inconsistent with
those available to the Indemnifying Party or that a conflict of interest is
likely to exist among such Indemnified Party and other Indemnified Parties (in
which case the Indemnifying Party shall not have the right to assume the defense
of such action on behalf of such Indemnified Party); and (ii) subject to clause
(C) above, the Indemnifying Party shall not, in connection with any one such
claim or proceeding or separate but substantially similar or related claims or
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the Indemnified Parties, or for fees and expenses of counsel for an
Indemnified Party that are not reasonable. Whether or not such defense is
assumed by the Indemnifying Party, such Indemnified Party shall not be subject
to any liability for any settlement made without its consent. The Indemnifying
Party shall not consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such claim or litigation for which such Indemnified Party would be
entitled to indemnification hereunder.
ARTICLE 3: DAMAGES
3.1 Penalty for Non-Effective Registration. If the Company fails to
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cause a Registration Statement complying with the requirements of this Agreement
to become effective in accordance with the applicable time requirements set
forth in Article 1 (including any extensions contemplated in such Article), then
the Company shall within thirty (30) days after expiration of such deadline,
purchase the Shares, and if issued, the Conversion Shares, from the Shareholders
for (i) with respect to the Shares, (A) the greater of the Share Purchase Price
(as defined in the Subscription Agreement) or (B) the fair market value of the
Shares as determined by an independent third-party appraiser mutually acceptable
to the Company and a majority of the Shareholders, the expenses of the appraiser
to be paid by the Company (the "Appraiser") and (ii) with respect to the
Conversion Shares, (A) the greater of $0.40 per share or (B) the fair market
value of the Conversion Shares as determined by the Appraiser.
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ARTICLE 4: PREEMPTIVE RIGHTS
4.1 Preemptive Rights. The Company hereby grants to the Shareholders a
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preemptive right to purchase all or any part of such Shareholder's "pro rata
share" (as defined in Section 4.2) of any "New Securities" (as defined below)
that the Company may, from time to time, propose to sell or issue. Such
preemptive right shall be subject to the following provisions:
4.2 "Pro Rata Share". A Shareholder's "pro rata share," for purposes of
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this Article 4, is the ratio that (a) the number of Shares (including, for
purposes of this Article 4, the shares of Common Stock issuable upon exercise of
any options, warrants or the exchange or conversion of other convertible
securities of the Company then by held by the Shareholder) then held by the
Shareholder bears to (b) the total number of shares of the Company's common
stock outstanding on a fully diluted basis; provided, however, a Shareholder
shall have no preemptive rights hereunder if a Shareholder's Holdings of Shares,
including for this Section 4.2, the shares of common stock issuable upon
exercise of any options, warrants or the exchange or conversion of other
convertible securities of the Company then by held by the Shareholder (for
purposes of this Section 4.2, "Shareholder's Holdings" shall include shares held
by Shareholder's family members, entities controlled by such Shareholder or such
Shareholder's family members), is below Five Percent (5.0%) of the total number
of shares of the Company's common stock outstanding on a fully diluted basis.
4.3 "New Securities". "New Securities" means any shares of capital
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stock of the Company, whether now authorized or not, and any rights, options or
warrants to purchase such capital stock, and any of the Company's convertible
securities of any type whatsoever; provided, however, that "New Securities"
shall not include (a) securities issuable upon exercise or conversion of
securities (excluding options) outstanding on the date hereof, (b) the common
stock or convertible securities issued pursuant to subscription agreements
entered into between the Company and Shareholders on the date hereof (including
the Shares issuable upon conversion thereof), (c) shares of common stock issued
to officers, directors or employees of, or consultants to, the Company including
restricted shares or pursuant to stock options or warrants outstanding on the
date hereof or restricted shares, stock options or warrants granted after the
date hereof on terms approved by the Board of Directors or any committee
thereof, up to a maximum for all of one million (1,000,000) shares of common
stock (as adjusted for any stock splits, stock dividends, combinations,
recapitalizations and similar events), (d) shares of the Company's common stock
issued in connection with any stock split, stock dividend, or recapitalizations,
and (e) securities to be issued after September 30, 2013.
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4.4 Procedure. In the event that the Company proposes to undertake an
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issuance of New Securities, the Company shall give each Shareholder written
notice of its intention, describing the type of New Securities and the price
(strike price for shares related to the stock options) and, as to issuances of
New Securities other than stock options, the general terms upon which the
Company proposes to issue the same. The Shareholder shall have forty-five (45)
days from the date any such notice is given to agree to purchase all or any part
of its pro rata share of such New Securities for the price and, if applicable,
upon the general terms specified in the notice by giving written notice to the
Company and stating therein the quantity of New Securities to be purchased.
4.5 Failure to Exercise Preemptive Rights. The Company shall have 120
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days after completing the process above to sell the New Securities with respect
to which the Shareholder's preemptive rights were not exercised, at a price and
upon general terms no more favorable to the purchasers thereof than specified in
the Company's notice. In the event the Company has not sold the New Securities
within that 120-day period, the Company shall not thereafter issue or sell any
New Securities, without first offering such securities to the Shareholders in
the manner provided above.
ARTICLE 5: MISCELLANEOUS PROVISIONS
5.1 Successors and Assigns; Assignment. The terms and conditions of
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this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto. Neither of the parties hereto may
assign, transfer or otherwise dispose of any of their rights under this
Agreement except with the prior written consent of the other party hereto,
except that a Shareholder may assign or transfer this Agreement to any affiliate
controlled by such Shareholder or by any of the Shareholder's family members and
so long as such affiliate expressly agrees to be bound by the terms hereof, and,
if such assignment occurs after the filing of the Registration Statement, the
assignor shall pay all costs directly related to such assignment with respect to
the amendment to the Registration Statement next filed after such assignment.
5.2 Severability. If any provision of this Agreement, or the
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application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement shall remain in full force and
effect and the application of such provision to other persons or circumstances
shall be interpreted so as best to reasonably effect the intent of the parties
hereto.
5.3. Entire Agreement. This Agreement, the documents referenced herein
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and the exhibits thereto, constitute the entire understanding and agreement of
the parties hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or understandings,
inducements or conditions, express or implied, written or oral, among the
parties with respect hereto and thereto. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
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5.4 Amendment and Waivers. Any term or provision of this Agreement may
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be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only by a writing signed by the Company and such number of
Shareholders holding 80% of the shares held by the Shareholders.
5.5 Notices. All notices, requests, consents and other communications
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hereunder shall be in writing, shall be mailed by first-class registered or
certified mail, telecopier, email or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so mailed, or if
telecopied or emailed, when receipt is acknowledged, and shall be delivered
addressed as follows:
(1) if to a Shareholder, at the address, telecopier number or
email address set forth opposite the Shareholder's name on the
signature page hereof; and
(2) if to the Company, at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attn: President.
Each party shall provide written notice to each other party of any
changes to such party's mailing address. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given, when
delivered by hand, if personally delivered; one business day after being timely
delivered to a next-day air courier, five business days after being deposited in
the mail, postage prepaid, if mailed; and when receipt is acknowledged by the
recipient's telecopier machine or computer, if telecopied or emailed.
5.6 Arbitration. Any dispute or controversy concerning this Agreement,
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including a dispute pertaining to the validity of this Section 5.6, shall be
determined by binding arbitration before a single arbitrator in Mecklenburg
County, North Carolina in accordance with the Commercial Rules of Arbitration of
the American Arbitration Association then in effect. The award of the arbitrator
may be enforced in any court of competent jurisdiction.
5.7 Governing Law. This Agreement shall be governed by and construed
-------------
under the laws of the State of North Carolina.
5.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original as against any party whose
signature appears thereon, and all of which together shall constitute one and
the same instrument.
5.9 Facsimile Signatures. This Agreement may be executed by facsimile
--------------------
signature and facsimile signatures shall be fully binding and effective for all
purposes and shall be given the same effect as original signatures. If any party
delivers a copy of this Agreement containing a facsimile signature, such party
shall promptly forward an originally executed copy to the other party; however,
the failure by any party to so deliver an originally executed copy shall not
affect in any way the binding nature of such party's facsimile signature.
5.10 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
[Signature pages follow.]
33
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the date first above written.
COMPANY:
TRANSBOTICS CORPORATION
By: __/s/ Xxxxxx Imbleau________
------------------
Its: __President_______________
---------
SHAREHOLDERS:
c/o Xxxx Xxxxxxx XXXXXXX-XXXXX INVESTMENT FUND, L.L.C.
UVEST Financial Services
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Floor By: __/s/ Xxxx Robison__________
----------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Its: __Manager________________
-------
Transbotics Corporation ___/s/ Xxxxxx Imbleau__________(SEAL)
------------------
0000 Xxxxxxx Xxxxx XXXXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxxxx Xxxxxxx __/s/ Xxxx Xxxx Imbleau________(SEAL)
---------------------
Transbotics Corporation ROSE XXXX XXXXXXX, individually
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxxxx Xxxxxxx __/s/ Xxxx Xxxx Imbleau________(SEAL)
---------------------
Transbotics Corporation XXXXXX XXXXXXX, a minor, by
0000 Xxxxxxx Xxxxx Xxxx Xxxx Xxxxxxx, custodian under
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 the North Carolina Uniform Transfers
to Minors Act
c/o Xxxxxx Xxxxxxx __/s/ Xxxx Xxxx Imbleau________(SEAL)
---------------------
Transbotics Corporation XXXXXXX XXXXXXX, a minor, by
0000 Xxxxxxx Xxxxx Xxxx Xxxx Xxxxxxx, custodian under
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 the North Carolina Uniform Transfers
to Minors Act
Transbotics Corporation __/s/ Xxxxx Hessler____________(SEAL)
-----------------
0000 Xxxxxxx Xxxxx XXXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
UVEST Financial Services __/s/ Xxxx Xxxxxxx ___________(SEAL)
------------------
000 Xxxxx Xxxxxxx Xxxxxx, 21st Floor XXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxx Xxxxxxx __/s/ Xxxxxx Xxxxxx Robison____(SEAL)
-------------------------
UVEST Financial Services XXXXXX XXXXXX XXXXXXX, individually
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
0000 Xxxxxxxx Xxxxx __/s/ Xxxx Kennington__________(SEAL)
-------------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 XXXX XXXXXXXXXX, individually
0000 Xxxxxxxx Xxxxx _/s/ Xxxxxxx Packer____________(SEAL)
------------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 XXXXXXX XXXXXX, individually
Citigroup Global Markets, Inc., d/b/a Xxxxx
Xxxxxx, Custodian FBO
Xxxxxx Xxxxxxx XXX Account
c/o Xxxxxx Xxxxxxx By: ____/s/ Claude_Imbleau___________
---------- -------
Transbotics Corporation
0000 Xxxxxxx Xxxxx Title or Authority: __Trustee________
-------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Print Name: ___Claude Imbleau________
--------------
Citigroup Global Markets, Inc., d/b/a Xxxxx
Xxxxxx, Custodian FBO
Xxxx Xxxx Xxxxxxx XXX Account
c/o Xxxxxx Xxxxxxx By: ____/s/ Xxxx Xxxx Imbleau________
---------------------
Transbotics Corporation
0000 Xxxxxxx Xxxxx Title or Authority: __Trustee________
-------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Print Name: __Rose Xxxx Imbleau______
-----------------
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[Signature pages follow.]
34
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as
of the date first above written.
COMPANY:
TRANSBOTICS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------
Its: President
---------
SHAREHOLDERS:
c/o Xxxx Xxxxxxx XXXXXXX-XXXXX INVESTMENT FUND, L.L.C.
UVEST Financial Services
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Floor By: /s/ Xxxx Xxxxxxx
----------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Its: Manager
-------
Transbotics Corporation /s/ Xxxxxx Xxxxxxx (SEAL)
------------------
0000 Xxxxxxx Xxxxx XXXXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxxxx Xxxxxxx /s/ Rose Xxxx Xxxxxxx (SEAL)
---------------------
Transbotics Corporation ROSE XXXX XXXXXXX, individually
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxxxx Xxxxxxx /s/ Rose Xxxx Xxxxxxx (SEAL)
---------------------
Transbotics Corporation XXXXXX XXXXXXX, a minor, by
0000 Xxxxxxx Xxxxx Xxxx Xxxx Xxxxxxx, custodian under
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 the North Carolina Uniform Transfers
to Minors Act
c/o Xxxxxx Xxxxxxx /s/ Rose Xxxx Xxxxxxx (SEAL)
---------------------
Transbotics Corporation XXXXXXX XXXXXXX, a minor, by
0000 Xxxxxxx Xxxxx Xxxx Xxxx Xxxxxxx, custodian under
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 the North Carolina Uniform Transfers
to Minors Act
Transbotics Corporation /s/ Xxxxx Xxxxxxx (SEAL)
-----------------
0000 Xxxxxxx Xxxxx XXXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
35
UVEST Financial Services /s/ Xxxx Xxxxxxx (SEAL)
------------------
000 Xxxxx Xxxxxxx Xxxxxx, 21st Floor XXXX XXXXXXX, individually
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
c/o Xxxx Xxxxxxx /s/ Xxxxxx Xxxxxx Xxxxxxx (SEAL)
-------------------------
UVEST Financial Services XXXXXX XXXXXX XXXXXXX, individually
000 Xxxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
0000 Xxxxxxxx Xxxxx /s/ Xxxx Xxxxxxxxxx (SEAL)
-------------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 XXXX XXXXXXXXXX, individually
0000 Xxxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxx (SEAL)
------------------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 XXXXXXX XXXXXX, individually
Citigroup Global Markets, Inc., d/b/a Xxxxx
Xxxxxx, Custodian FBO
Xxxxxx Xxxxxxx XXX Account
c/o Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
-----------------
Transbotics Corporation
0000 Xxxxxxx Xxxxx Title or Authority: Trustee
-------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Print Name: Xxxxxx Xxxxxxx
--------------
Citigroup Global Markets, Inc., d/b/a Xxxxx
Xxxxxx, Custodian FBO
Xxxx Xxxx Xxxxxxx XXX Account
c/o Xxxxxx Xxxxxxx By: /s/ Rose Xxxx Xxxxxxx
---------------------
Transbotics Corporation
0000 Xxxxxxx Xxxxx Title or Authority: Trustee
-------
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Print Name: Rose Xxxx Xxxxxxx
-----------------
36
