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EXHIBIT S
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement"), entered into as of January 23, 1997, between S-C Rig
Investments-III, L.P., Winston Partners II LLC, Winston Partners II LDC, Winston
Partners L.P. (collectively, the "Purchaser"), and Geotek Communications, Inc.,
a Delaware corporation with its principal office at 00 Xxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, pursuant to a Convertible Securities Subscription Agreement,
dated as of January 23, 1997 (the "Agreement"), by and between the Company and
the Purchaser, the Company has agreed to sell and the Purchaser has agreed to
purchase U.S.$25,000,000 of the Company's Series P Convertible Preferred Stock
at a price of $50,000 per share (the "Preferred Stock") convertible into shares
of the Company's Common Stock, $.01 par value (the "Shares");
WHEREAS, pursuant to the Agreement, the Company is issuing warrants
for the purchase of the Shares and pursuant to the Company's Certificate of
Designation of Series P Convertible Preferred Stock (the "Certificate of
Designation"), the Company is required to issue to the holders of the Preferred
Stock certain other warrants for the purchase of the Shares upon the Company's
redemption of the Preferred Stock (collectively, the "Warrants");
WHEREAS, pursuant to the terms of and in partial consideration for,
the Purchaser's agreement to enter into the Agreement, the Company has agreed to
provide the Purchaser with certain registration rights with respect to the
Shares and other shares of Common Stock issuable upon conversion or exercise of
securities of the Company currently held by the Purchaser (collectively, the
"Existing Securities") ;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in the
Agreement, Certificate of Designation and this Registration Rights Agreement,
the Company and the Purchaser agree as follows:
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1. Certain Definitions. As used in this Registration Rights Agreement,
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the following terms shall have the following respective meanings:
"SEC" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Registrable Securities" shall mean: (i) Shares issued to Purchaser or
its designee upon conversion, exercise or exchange of the Preferred Stock, the
Warrants or any Existing Securities or upon any stock split, stock dividend
(pursuant to the Certificate of Designation or otherwise), recapitalization or
similar event with respect to such Shares; (ii) any Shares issued to Purchaser
as dividends on the Preferred Stock or any Existing Securities; and (iii) any
securities issued or issuable to Purchaser or any Holder upon the conversion or
exercise or exchange of any Preferred Stock, Warrants, Existing Securities or
Shares.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement.
"Registration Expenses" shall mean all expenses to be incurred by the
Company in connection with Purchaser's exercise of its registration rights under
this Registration Rights Agreement, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company and blue sky fees and expenses (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company).
"Selling Expenses" shall mean all underwriting discounts and selling
commissions, if any, applicable to the sale of Registrable Securities and all
fees and disbursements of counsel for Holder.
"Holder" shall include the Purchaser and any transferee of Preferred
Stock, Warrants, Existing Securities, Shares or Registrable Securities which
have not been sold to the public to whom the registration rights conferred by
this Registration Rights Agreement have been transferred in compliance with
Section 12 of this Registration Rights Agreement.
"Registration Statement" shall have the meaning set forth in Section
2(a) herein.
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"Regulation D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2. The Registration Requirements. The Company represents and warrants
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that it is qualified and eligible to use the registration statement on Form S-3
under the Securities Act. The Company shall file and use its best efforts to
cause to become effective, as promptly as possible and in any event by the 90th
calendar day after the Closing Date, a registration statement on Form S-3 under
the Securities Act or, if Form S-3 is not then available, another appropriate
form covering the resale of the Shares issuable on conversion of the Preferred
Stock and upon exercise of the Warrants and shall take all action necessary to
qualify the Shares under state "blue sky" laws as hereinafter provided. The
Company shall use its diligent best efforts to effect the registration
contemplated by the foregoing (including, without limitation, the execution of
an undertaking to file post- effective amendments, appropriate qualification
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act) and as
would permit or facilitate the sale and distribution of all the Registrable
Securities in all states reasonably requested by the Holder for purposes of
maximizing the proceeds realizable by the Holder from such sale and
distribution. Such best efforts by the Company shall include, without
limitation, the following:
(a) The Company shall file (i) a registration statement with the
SEC pursuant to Rule 415 under the Securities Act on Form S-3
under the Securities Act and the Company shall use its best
efforts to qualify for the use of such Form (or in the event that
the Company is ineligible to use such form, such other form as
the Company is eligible to use under the Securities Act) covering
the Registrable Securities (other than the Registrable Securities
issuable upon conversion or exercise or otherwise with respect to
the Existing Securities) to be registered (the "Registration
Statement"); (ii) such blue sky filings as shall be reasonably
requested to permit such sales; provided, however, that the
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Company shall not be required to register the Registrable
Securities in any jurisdiction that would subject it to general
service of process in any such jurisdiction where it is not then
so subject or subject the Company to any tax in any such
jurisdiction where it is not then so subject or to require the
Company to qualify to do business in any jurisdiction where it is
not then so qualified; and (iii) any required filings with the
Nasdaq National Market ("Nasdaq") and any exchange where the
Shares are traded, all as soon as practicable after the date
hereof. The Company shall use its best efforts to have such
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Registration Statement and other filings declared effective as
soon thereafter as may be practicable.
(b) The Company shall enter into such customary agreements
(including a customary underwriting agreement with the
underwriter or underwriters, if any) and take all such other
reasonable actions, in connection therewith in order to expedite
or facilitate the disposition of such Registrable Securities and
in such connection whether or not the Registrable Securities are
to be sold in an underwritten offering, the Company shall:
(i) make such representations and warranties to the
Holder and the underwriter or underwriters, if any, in form
and substance and scope as are customarily made by issuers
to underwriters in secondary underwritten offerings;
(ii) cause to be delivered to the sellers of
Registrable Securities and the underwriter or underwriters,
if any, opinions of counsel to the Company, dated the date
of delivery of any Registrable Securities sold pursuant
thereto, which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriter or underwriters and the appointed representative
or counsel of the Holder, addressed to the Holder and each
underwriter:
(A) in the case of an underwritten offering,
covering the matters customarily covered in opinions
requested in secondary underwritten offerings; or
(B) in the case of any offering that is not
underwritten, covering the effectiveness of the
registration statement;
(iii) in the case of an underwritten offering, cause to
be delivered at the time of delivery of any Registrable
Securities sold pursuant thereto, letters from the Company's
independent certified public accountants addressed to the
Holder and each underwriter stating that such accountants
are independent public accountants within the meaning of the
Securities Act and the applicable published rules and
regulations thereunder, and otherwise in customary form and
covering such financial and accounting matters as are
customarily covered by letters of the independent certified
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public accountants delivered in connection with secondary
underwritten public offerings;
(iv) if an underwriting agreement is entered into,
cause the same to set forth indemnification and contribution
provisions and procedures which are no less favorable to the
Holder and the Company than those contemplated by sections 8
and 9 hereof with respect to all parties to be indemnified
pursuant to such sections;
(v) deliver such documents and certificates as may be
reasonably requested by the Holder of the Registrable
Securities being sold or the managing underwriter or
underwriters, if any, to evidence compliance with clause (i)
above and with any customary conditions contained in the
underwriting agreement, if any, or other agreement entered
into by the Company;
the foregoing in this paragraph 2(b) shall be done at each
closing under any such underwriting or similar agreement or as
and to the extent required thereunder; provided, however, the
foregoing in paragraph 2(b) shall not be required on more than
two (2) occasions;
(c) The Company shall make available for inspection, review and
comment by a representative or representatives of the Holder, any
underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney or accountant retained
by such Holder or underwriter, any such registration statement or
amendment or supplement or any blue sky, Nasdaq or other filing,
all financial and other records, pertinent corporate documents
and properties of the Company as they may reasonably request for
the purpose, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in
connection with such Registration Statement.
3. Underwritten Distribution. If the Holder intends to distribute the
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Registrable Securities covered by a Registration Statement by means of an
underwriting, the Holder shall so advise the Company and, within thirty (30)
days of the date thereof and without limiting the generality of other provisions
hereof, the Company will prepare and file such amendment or amendments to the
Registration Statement and make such other filings as may be necessary or
appropriate to effect any such underwritten distribution. The managing
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underwriter for any such distribution shall be an investment banking firm of
national reputation selected by the Holders participating in such distribution,
subject to the Company's consent, which shall not be unreasonably withheld.
4. Multiple Holders. If there is more than one Holder, such Holders shall
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act with respect to their rights under this Registration Rights Agreement
according to the vote of a majority-in-interest.
5. Expenses of Registration. All Registration Expenses incurred in
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connection with any registration, qualification or compliance pursuant to this
Registration Rights Agreement shall be borne by the Company, and all Selling
Expenses shall be borne by the Holder.
6. Registration Delay or Failure. The Company acknowledges that its
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failure to register the Registrable Securities in accordance with the Agreement
and this Registration Rights Agreement will cause the Holder to suffer damages
in an amount that will be difficult to ascertain. Accordingly the parties agree
that it is appropriate to include herein a provision for liquidated damages and
to compensate the Holder fairly for the additional risk undertaken by the Holder
resulting from the Company's delay or failure to effect such registration. The
parties acknowledge and agree that the liquidated damages provisions set forth
in the Agreement represent the parties' good faith effort to quantify such
damages and, as such, agree that the form and amount of such liquidated damages
are reasonable and will not constitute a penalty; provided, however, that
nothing in this Section 6 shall limit the Holder's right to pursue equitable
relief, including without limitation, specific performance.
(a) If the Registration Statement covering the resale of the Shares is
not declared effective by the one-hundred-twentieth (120th) calendar
day after the Closing Date, then the Applicable Percentages (as
defined in the Certificate of Designation) used in determining the
Conversion Date Market Price (as defined in the Certificate of
Designation) shall each be increased by two and one-half (2 1/2)
percentage points and the Applicable Percentages as so increased shall
then and thereafter be applicable to and upon conversion of the
Preferred Stock in lieu and in place of the Applicable Percentages set
forth in the Certificate of Designation.
(b) If such Registration Statement still has not been declared
effective by the one-hundred-fifty-first (151st) calendar day after
the Closing Date, then the Applicable Percentages, as theretofore
reduced pursuant to Section 6(a) hereof, shall be further increased by
two and one-half (2 1/2) percentage points, and, as further so
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increased, shall then and thereafter be applicable to and upon
conversion of the Preferred Stock.
(c) On each succeeding thirtieth (30th) day after such
one-hundred-fifty-first (151st) calendar day after the Closing Date,
upon which such Registration Statement still has not become effective,
the Applicable Percentages as theretofore increased pursuant to
Sections 6(a) and 6(b) hereof shall be further increased by another
two (2) percentage points and, as further so increased, shall then and
thereafter be applicable to and upon conversion of the Preferred
Stock.
(d) For the avoidance of doubt, the Company shall not be subject to
any liquidated damages provisions under this Agreement with respect to
its failure to register on a timely basis any Shares issued or
issuable with respect to any Existing Securities.
7. Registration Procedures. In the case of each registration effected by
the Company pursuant to this Registration Rights Agreement, the Company will
keep the Holder advised in writing as to initiation of each registration and as
to the completion thereof. At its expense, the Company will use its best efforts
to:
(a) Keep such registration effective for the period of sixty (60)
months or until all the Securities are sold or eligible for sale
pursuant to Rule 144(k) of the SEC or any successor or similar
provision, whichever is earlier.
(b) Furnish such number of prospectuses and other documents incident
thereto as the Holder from time to time may reasonably request.
(c) Notify the Holder of any event or circumstance the result of which
is that the Company's Registration Statement or prospectus included
therein contains an untrue statement of material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and shall (i) in the case
of any event or circumstance not provided for in clause (ii) below,,
within thirty (30) business days of such notification or (ii) in the
case of any acquisition, merger or other similar material transaction
requiring additional disclosure to correct any such untrue statement
or omission, within sixty (60) days of such notification, amend or
supplement the Registration Statement or prospectus to correct such
inaccuracy or disclose such development; provided, however, that upon
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receipt of such notice, the Holder shall immediately discontinue
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dispositions of Registrable Securities thereunder until the Holder's
receipt from the Company of a supplemented or amended prospectus and,
if so requested by the Company, the Holder shall deliver to the
Company all copies (other than permanent file copies in the Holder's
possession) of the prospectus covering the Registrable Securities
current at the time of receipt of such notice; and provided further,
that if the Registration Statement or prospectus is not amended or
supplemented so as to remedy any inaccuracy or disclose such
development by the thirtieth (30th) business day in the case of clause
(i), or the sixtieth (60th) business day in the case of clause (ii),
in each case, after notice of inaccuracy is given by the Company to
the Holder, then the Company shall issue Holder upon each subsequent
conversion by Holder of any Preferred Stock which was convertible into
Common Stock at any time from the applicable date upon which such
Registration Statement was required to be supplemented or amended
(i.e., the thirtieth (30th) business day or sixtieth (60th) business
day after notification, as the case may be) (the "Required
Registration Statement Amendment Date") until such date as the
Registration Statement is so amended (the "Registration Statement
Amendment Date"), such additional shares of Common Stock as would have
been issuable to the Holder upon such conversion had the Applicable
Percentage used in determining the Conversion Date Market Price for
such conversion been increased by the Amendment Penalty Discount in
the case of an event described in clause (i) or the Alternative
Penalty Discount in the case of an event described in clause (ii). As
used herein, (x) the "Amendment Penalty Discount" shall initially
equal zero percent (0%) on a Required Registration Amendment Date in
the case of an event described in clause (i) and shall increase by one
percent (1%) for every fifth (5th) business day thereafter until the
applicable Registration Statement Amendment Date and (y) the
Alternative Penalty Discount shall initially equal two and one-half
percent (2 1/2%) on a Required Registration Statement Amendment Date
with respect to an event described in clause (ii) and shall increase
by two and one-half percent (2 1/2%) on the thirtieth (30th) business
day thereafter if the applicable Registration Statement Amendment Date
has not then occurred and shall increase by two percent (2%) for every
thirtieth (30th) business day thereafter until the applicable
Registration Statement Amendment Date. For the avoidance of doubt, the
Company shall not be required to issue any additional shares of Common
Stock under this Agreement for a failure to maintain the registration
of any Shares issued or issuable with respect to any Existing
Securities.
8. Indemnification.
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(a) Company Indemnity. The Company will indemnify the Holder, each of
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its officers, directors and partners, and each person controlling the
Holder within the meaning of Section 15 of the Securities Act and the
rules and regulations thereunder with respect to which registration,
qualification or compliance has been effected pursuant to this
Registration Rights Agreement, and each underwriter, if any, and each
person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any
underwriter, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained
in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to
any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the
Securities Act or any state securities law or in either case, any rule
or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse the
Holder, each of its officers, directors and partners, and each person
controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and 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 on any untrue statement or omission based upon written
information furnished to the Company by Holder or the underwriter and
stated to be specifically for use therein. The indemnity agreement
contained in this Section 8(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if
such settlement is effected without the consent of the Company (which
consent will not be unreasonably withheld).
(b) Holder Indemnity. The Holder will, if Registrable Securities held
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by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company,
each of its directors, officers, partners, and 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 Section 15 of the Securities Act and the rules
and regulations thereunder, each other Holder (if any), and each of
their officers, directors and partners, and each person controlling
such other Holder against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue
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statement (or alleged untrue statement) of a material fact contained
in any such 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
statement therein not misleading and will reimburse the Company and
such other Holders and their directors, officers and partners,
underwriters or control persons for any legal or 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 Holder and stated to be specifically for
use therein; provided, however, that the obligations of Holder shall
not apply to amounts paid in settlement of any such claims, losses,
damages or liabilities if such settlement is effected without the
consent of Holder (which consent shall not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this
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Article (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim in any
litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified
Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article except to the
extent that the Indemnifying Party is actually prejudiced by such
failure to provide notice. No Indemnifying Party, in the defense of
any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified of a release
from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or
the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the
defense of such claim and litigation resulting therefrom.
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9. Contribution. If the indemnification provided for in Section 8 herein
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is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified party as a result of such losses, claims, damages
or liabilities (i) as between the Company and the Holder on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Holder on the one hand or
underwriters, as the case may be, on the other from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the
Holder or underwriters, as the case may be, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations and (ii) as
between the Company on the one hand and the Holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
the Holder in connection with such statements or omissions.
The relative benefits received by the Company on the one hand and the
Holder or the underwriters, as the case may be, on the other shall be deemed to
be in the same proportion as (x) the proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company from the initial sale of the Preferred Stock by the Company to
the Holder pursuant to the Agreement and from the exercise of the Warrants by
the Holder bear to (y) the gain realized by such Holder or the total
underwriting discounts and commissions received by the underwriters as set forth
in the table on the cover page of the prospectus, as the case may be. The
relative fault of the Company on the one hand and of the Holder or underwriters,
as the case may be, on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by the
Company, by the Holder or by the underwriters.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 9 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 8(a) or 8(b) hereof had been
available under the circumstances.
The Company and the Holder agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Holder or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
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account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this section, no Holder or underwriter shall
be required to contribute any amount in excess of the amount by which (i) in the
case of the Holder, the net proceeds received by the Holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the total price at
which the Registrable Securities purchased by it and distributed to the public
were offered to the public exceeds, in any such case, the amount of any damages
that the Holder or underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
10. Survival. The Indemnity and contribution agreements contained in
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Sections 8 and 9 and the representations and warranties of the Company referred
to in Section 2(b)(i) shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Indemnified Party or by or on behalf of the Company and
(iii) the consummation of the sale or successive resales of the Registrable
Securities.
11. Information from Holder. The Holder shall furnish to the Company such
-----------------------
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
12. Transfer or Assignment of Registration Rights. The rights granted to
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Purchaser by the Company under this Registration Rights Agreement to cause the
Company to register Registrable Securities, may be transferred or assigned to a
transferee or assignee, provided that the Company is given written notice by
Holder at the time of or within a reasonable time after said transfer or
assignment, stating the name and address of said transferee or assignee and
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identifying the securities with respect to which such registration rights are
being transferred or assigned, and provided further that the transferee or
assignee of such rights is not deemed by the board of directors of the Company,
in its reasonable judgment, to be a competitor of the Company, and provided
further that the transferee or assignee of such rights agrees to be bound by
this Registration Rights Agreement.
13. Miscellaneous.
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(a) Entire Agreement. This Registration Rights Agreement contains the
----------------
entire understanding and agreement of the parties, and may not be modified or
terminated except by a written agreement signed by both parties.
(b) Notices. Any notice or other communication required or permitted
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to be given hereunder shall be in writing and shall be effective (i) upon hand
delivery or delivery by telex (with correct answer back received), telecopy or
facsimile, at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (ii) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
to the Company:
Geotek Communications, Inc.
00 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel and Secretary
Fax: (000) 000-0000
with copies to:
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
to the Purchaser:
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Fax: (___) ___-____
with copies to:
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Fax: (___) ___-____
with copies to:
Either party hereto may from time to time change its address for notices under
this Section 13(b) by giving at least 10 days' written notice of such changed
address to the other party hereto.
(c) Gender of Terms. All terms used herein shall be deemed to include
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the feminine and the neuter, and the singular and the plural as the context
requires.
(d) Governing Law; Consent to Jurisdiction. This Registration Rights
--------------------------------------
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of law or choice of
law, except for matters arising under the Securities Act or the Exchange Act
which matters shall be construed and interpreted in accordance with such Acts.
The Company hereby agrees that all actions or proceedings arising directly or
indirectly from or in connection with this Registration Rights Agreement shall,
at the Purchaser's sole option, be litigated only in the Supreme Court of the
State of New York or the United States District Court for the Southern District
of New York located in New York County, New York. The Company consents to the
jurisdiction and venue of the foregoing courts and consents that any process or
notice of motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or the Southern
District of New York by registered mail, return receipt requested, directed to
the Company at its address set forth in this Registration Rights Agreement (and
service so made shall be deemed complete five (5) days after the same has been
posted as aforesaid) or by personal service or in such other manner as may be
permissible under the rules of said court.
Page 76 of 81 Pages
(e) Titles. The titles used in this Registration Rights Agreement are used for
------
convenience only and are not to be considered in construing or interpreting this
Registration Rights Agreement.
(f) Additional Registration Rights.
------------------------------
(ii) The Purchaser acknowledges that the Company does not have any
obligation to include any Registrable Securities issuable upon conversion,
exercise or otherwise with respect to the Existing Securities in the
registration statement as initially filed with the SEC pursuant to Section 2(a)
hereof. Notwithstanding the foregoing, in the event the Purchaser shall at any
time request in writing that the Company amend such registration statement to
include therein any or all of the Registrable Securities issuable upon
conversion, exercise or otherwise with respect to the Existing Securities, the
Company shall promptly take such actions to amend or otherwise effect the
inclusion of such Registrable Securities in such registration statement.
(ii) The Company has previously granted the Purchaser certain
registration rights with respect to Purchaser's Common Stock which it now owns
or hereafter acquires pursuant to each of those Stock Purchase Agreements dated
November 1, 1993 and September 28, 1994 (the "Stock Purchase Agreements"). The
Company acknowledges and agrees that the Registrable Securities actually issued
and issuable pursuant to the Preferred Stock and Warrants shall constitute
"Registrable Securities" for purposes of the Stock Purchase Agreements and
Holder shall be entitled to the rights set forth in Section 6 of each of the
Stock Purchase Agreements with respect to such Registrable Securities. For the
avoidance of doubt, all shares of Common Stock issuable upon conversion or
exercise of Preferred Stock and Warrants (whether or not such shares of Common
Stock have been issued) shall be counted as "secondary securities" (as defined
in the Stock Purchase Agreements) for purposes of determining the number of
secondary securities a holder may include in an underwritten offering pursuant
to Section 6.7 of the Stock Purchase Agreements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 77 of 81 Pages
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed as of the date first above written.
GEOTEK COMMUNICATIONS, INC.
By: /s/
---------------------------------------
Name:
Title:
S-C RIG INVESTMENTS-III, L.P.
By: S-C Rig Co.
Its general partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
WINSTON PARTNERS II LLC
By: Chatterjee Advisors L.L.C.
Its manager
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Manager
WINSTON PARTNERS II LDC
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
WINSTON PARTNERS L.P.
By: Chatterjee Fund Management, L.P.,
its general partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact