REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement"), entered into as of February 18, 1998, between each of the persons
whose name and signature appear on the signature page hereto (each a "Purchaser"
and collectively, the "Purchasers"), 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, the Purchasers have obtained pursuant to various Convertible
Securities Subscription Agreements and other agreements (collectively, the
"Agreement") shares of the Company's Series O Convertible Preferred Stock
("Series O Stock"), Series Q Convertible Preferred Stock ("Series Q Stock"),
Series R Convertible Preferred Stock ("Series R Stock") and/or Series S
Convertible Preferred Stock ("Series S Stock") and the Company also has
outstanding shares of its Series P Convertible Preferred Stock ("Series P Stock"
and together with the Series O Stock, Series Q Stock, Series R Stock and Series
S Stock, the "Preferred Stock");
WHEREAS, pursuant to the terms of the Certificates of Designation
establishing the rights of the Preferred Stock (collectively, the "Certificate
of Designation"), the Preferred Stock is convertible into shares of the
Company's Common Stock, par value $.01 per share (the "Shares");
WHEREAS, in connection with the purchase of the Preferred Shares, the
Company has issued to the Purchasers warrants to purchase Shares and the Company
is required to issue to holders of Preferred Stock certain other warrants for
the purchase of Shares upon the Company's redemption of Preferred Stock
(collectively, the Warrants).";
WHEREAS, pursuant to the terms of and in partial consideration for, the
Purchasers' agreement to enter into the Agreement, the Company has agreed to
provide the Purchasers with certain registration rights with respect to the
Shares;
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 Purchasers agree as follows:
1. Certain Definitions. As used in this Registration Rights Agreement,
the following terms shall have the following respective meanings:
(a) "SEC" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
(b) "Registrable Securities" shall mean: (i) Shares issued to
the Purchasers or their designees upon conversion of the Preferred Stock,
exercise of the Warrants 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 the Purchasers or any
Holder as dividends on the Preferred Stock; (iii) any securities issued or
issuable to the Purchasers or any Holder upon the conversion or exercise or
exchange of any Preferred Stock, Warrants or Shares and (iv) shares of Common
Stock issued pursuant to Section 5(a) hereof.
(c) 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.
(d) "Registration Expenses" shall mean all expenses to be
incurred by the Company in connection with each 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).
(e) "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 the Holders.
(f) "Holder" and "Holders" shall include a Purchaser or the
Purchasers, respectively, and any transferee of Preferred Stock, Warrants,
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.
(g) "Registration Statement" shall have the meaning set forth
in Section 2(a) herein.
(h) "Regulation D" shall mean Regulation D as promulgated
pursuant to the Securities Act, and as subsequently amended.
(i) "Securities Act" shall mean the Securities Act of 1933, as
amended.
2. The Registration Requirements. The Company represents and warrants
that it is qualified and eligible to use the registration statement on Form S-3
under the Securities Act. The Company shall file such Registration Statement no
later than March 16, 1998 (the "Registration Date") and use its best efforts to
cause such Registration Statement to become effective as promptly as possible
thereafter. Such Registration Statement shall be filed on Form S-3 under the
Securities Act or, if Form S-3 is not then available, another appropriate form
covering the resale of
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the Shares issuable on conversion of the Preferred Stock and upon exercise of
the Warrants. In addition, the Company 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 Holders for purposes of
maximizing the proceeds realizable by the Holders from such sale and
distribution. The Company shall distribute copies of the Registration Statement
to the Holders promptly after the filing thereof and shall give the Holders no
less than ten days after receipt of such Registration Statement the opportunity
to provide comments thereto. 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 to be registered (the "Registration
Statement"); (ii) such blue sky filings as shall be reasonably requested to
permit such sales; provided, however, that the 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 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
Holders 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 Holders, addressed to the Holders
and each underwriter:
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(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 Holders 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
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 Holders 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 Holders 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 Holders, any
underwriter participating in any disposition pursuant to a Registration
Statement, and any attorney or accountant retained by such Holders 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 any Holder intends to distribute the
Registrable Securities covered by a Registration Statement by means of an
underwriting, such 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
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appropriate to effect any such underwritten distribution. The managing
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. Expenses of Registration. All Registration Expenses incurred in
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 Holders.
5. Registration Delay or Failure. The Company acknowledges that its
failure to register the Registrable Securities in accordance with the Agreement
and this Registration Rights Agreement will cause the Holders 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
Holders 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 Holders' right to pursue
equitable relief, including without limitation, specific performance.
(a) If the Registration Statement covering the resale of the
Shares is not (i) filed by the Company with the SEC on or prior to the
Registration Date the Company shall pay to each Investor within five (5) days
after such date a penalty of 1% of the market value of the shares of Common
Stock issued to each such Investor upon conversion of shares of Series O Stock,
Series Q Stock, Series R Stock or Series S Stock which are owned as of such date
(assuming a market price of no less than $1.00) and 1% of the Designated Price
(as defined in the Series O Certificate, Series Q Certificate, Series R
Certificate of Designation, the Series S Certificate of Designation or the
Certificate of Designation creating the Series P Stock, as the case may be) of
the shares of Series O Stock, Series P Stock, Series Q Stock, Series R Stock
and/or Series S Stock owned by such Investor as of such date and/or (ii)
declared effective on or prior to April 15, 1998, the Company shall pay to each
Investor within five (5) days after such date a penalty of 1% of the market
value of the shares of Common Stock issued to each such Investor upon conversion
of shares of Series O Stock, Series Q Stock, Series R Stock or Series S Stock
which are owned as of such date (assuming a market price of no less than $1.00)
and 1% of the Designated Price (as defined in the Series O Certificate, Series Q
Certificate, Series R Certificate of Designation, the Series S Certificate of
Designation or the Certificate of Designation creating the Series P Stock, as
the case may be) of the shares of Series O Stock, Series P Stock, Series Q
Stock, Series R Stock and/or Series S Stock owned by such Investor as of such
date. In addition, the Company shall also pay a penalty of 2% of such market
value and/or Designated Price, as the case may be, on the fifth (5th) day after
the end of each month for each month (or partial month) beginning April 1, 1998,
thereafter that the Registration Statement has not been declared effective;
provided that no such payment shall be required pursuant to this sentence if the
Registration Statement is declared effective on or prior to April 15, 1998. The
Company may pay any penalty pursuant to this Section 5(a) in shares of
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Common Stock, valued for such purposes, at the average closing bid price of the
Common Stock for the fifteen trading days immediately preceding the date such
payment is due.
6. Registration Procedures. In the case of each registration effected
by the Company pursuant to this Registration Rights Agreement, the Company will
keep the Holders 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 any Holder from time to time may reasonably request.
(c) Notify the Holders 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 receipt of such
notice, each Holder shall immediately discontinue dispositions of Registrable
Securities thereunder until such Holder's receipt from the Company of a
supplemented or amended prospectus and, if so requested by the Company, each
Holder shall deliver to the Company all copies (other than permanent file copies
in such 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 Holders, then the Company shall issue to a Holder
upon each subsequent conversion by such 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 such 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
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(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.
7. Indemnification.
(a) Company Indemnity. The Company will indemnify each Holder,
each of its officers, directors, partners, employees and agents and each person
controlling such 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 such Holder, each of its
officers, directors, partners, employees and agents 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 such Holder or the underwriter and
stated to be specifically for use therein. The indemnity agreement contained in
this Section 7(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. Each Holder will severally and not
jointly, if Registrable Securities held by it are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify the Company, each of its officers, directors, partners, employees and
agents 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 statement (or alleged untrue
statement) of a material fact contained in
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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
officers, directors, partners, employees, agents, 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 such Holder (which consent shall
not be unreasonably withheld). Notwithstanding the foregoing, each Holder's
indemnification obligation hereunder shall be limited to the net proceeds
received by such Holder from sales of Registrable Securities.
(c) Procedure. Each party entitled to indemnification under
this 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.
8. Contribution. If the indemnification provided for in Section 7
herein 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 applicable
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 such
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 such Holder or underwriters, as the case may be, on
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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
applicable Holder on the other, in such proportion as is appropriate to reflect
the relative fault of the Company and of such Holder in connection with such
statements or omissions.
The relative benefits received by the Company on the one hand and the
applicable 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 such Holder pursuant to the Agreement and from the exercise of the
Warrants by such 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 applicable 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 such Holder or by the underwriters.
In no event shall the obligation of any Indemnifying Party to
contribute under this Section 8 exceed the amount that such Indemnifying Party
would have been obligated to pay by way of indemnification if the
indemnification provided for under Section 7(a) or 7(b) hereof had been
available under the circumstances.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the applicable Holder or the underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take 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 such 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.
9. Survival. The Indemnity and contribution agreements contained in
Sections 7 and 8 and the representations and warranties of the Company referred
to in Section 2(b)(i) shall remain
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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.
10. Information from Holders. Each 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.
11. Transfer or Assignment of Registration Rights. The rights granted
to the Purchasers 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 the applicable 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 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.
12. Miscellaneous.
(a) Entire Agreement. This Registration Rights Agreement, the
Agreement and the documents referenced in the Agreement contain the entire
understanding and agreement of the parties. This Registration Rights Agreement
may not be modified or terminated except by a written agreement signed by the
Company and the holders of at least two-thirds of the shares of Preferred Stock
outstanding at the time.
(b) Notices. Any notice or other communication required or
permitted 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:
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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 Purchasers at the address set forth for each Purchaser
in the Agreement, with copies to such Purchaser's
representatives (if any) at the address for such
representative set forth in the Agreement.
The Company or any Purchaser 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 each of the Purchasers (with respect to the Company) or
the Company (with respect to the Purchasers).
(c) Gender of Terms. All terms used herein shall be deemed to
include 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.
11
(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) Counterparts. This Registration Rights Agreement may be
executed in any number of counterparts each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
12
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/ Xxxxx Xxxxx
--------------------------------------------------
Xxxxx Xxxxx
Chairman and CEO
PURCHASERS:
RGC International Investors, LDC
By: Xxxx Xxxx Capital Management, L.P., as
Investment Manager
By: RGC General Partner Corp., as general partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------------
Xxxxx X. Xxxxx, Managing Director
Halifax Fund, L.P.
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------------
Xxxxxx Xxxxxx, Authorized Representative
[SIGNATURES CONTINUED]
Gleneagles Fund, Ltd.
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------------
Xxxxxx Xxxxxx, Authorized Representative
Colonial Penn Insurance Company
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------------
Xxxxxx Xxxxxx, Authorized Representative
Colonial Penn Life Insurance Company
By: The Palladin Group, its Investment Manager
By: Palladin Capital Management LLC, its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------------
Xxxxxx Xxxxxx, Authorized Representative
[SIGNATURES CONTINUED]
Palladin Partners I, L.P.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------------
Xxxxxx Xxxxxx, Authorized Representative
[SIGNATURES CONTINUED]
Xxxxxx Partners
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxx, Officer
Olympus Securities, LTD.
By: /s/ Nitin Aggawnal
-------------------------------------------------
Xxxxx Xxxxxxxx, Officer
CIBC, Wood Gundy Securities Corp.
By: /s/ Xxxxxx X. XxXxxxxx
-------------------------------------------------
Xxxxxx X. XxXxxxxx, Managing Director
Themis Partners L.P.
By: Promethean Investment Group, L.L.C., its General
Partner
By: /s/ Xxxxx X. X'Xxxxx, Xx.
-------------------------------------------------
Xxxxx X. X'Xxxxx, Xx., President
Samyang Merchant Bank
By: Promethean Investment Group, L.L.C., its Investment
Advisor
By: /s/ Xxxxx X. X'Xxxxx, Xx.
-------------------------------------------------
Xxxxx X. X'Xxxxx, Xx., President
[SIGNATURES CONTINUED]
Heracles Fund
By: Promethean Investment Group, L.L.C., its Investment
Advisor
By: /s/ Xxxxx X. X'Xxxxx
----------------------------------------------------
Xxxxx X. X'Xxxxx, Xx., President
Xxxxxxxx, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
GAM Arbitrage Investments, Inc.
By: Xxxxxx, Xxxxxx & Co., L.P., its Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
AG Super Fund International Partners, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
[SIGNATURES CONTINUED]
Ramius Fund, Ltd.
By: AG Ramius Partners, L.L.C., its Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Managing Officer
Raphael, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
AG Super Fund, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
Michaelangelo, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
[SIGNATURES CONTINUED]
Xxxxxx, Xxxxxx & Co., L.P.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Operating Officer
