Exhibit 2
CONFORMED COPY
REGISTRATION RIGHTS AGREEMENT
by and between
NAVIGATION TECHNOLOGIES
CORPORATION
and
PHILIPS CONSUMER ELECTRONIC
SERVICES B.V.
made as of
March 29, 2001
Table
of Contents
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS
AGREEMENT is made as of March 29, 2001, by and between NAVIGATION
TECHNOLOGIES CORPORATION, a corporation organized under the laws of Delaware
(the “Company”) and PHILIPS CONSUMER ELECTRONIC SERVICES B.V., a
corporation organized under the laws of The Netherlands (“Philips”).
WHEREAS, on the date
hereof, Philips and the Company have entered into a certain stock purchase
agreement (the “Stock Purchase Agreement”);
WHEREAS, as a result of
the transactions contemplated in the Stock Purchase Agreement as well as other
transactions consummated in the past between Philips or its Affiliates and the
Company, Philips will be the record or beneficial holder of a majority of the
Registrable Securities defined herein; and
WHEREAS, in connection
therewith, the Company has agreed to grant to Philips the registration rights
set forth below;
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained herein, the
parties agree as follows:
Capitalized terms used
herein without definition shall have the meanings ascribed thereto in the Stock
Purchase Agreement. As used in this
Agreement, the following defined terms shall have the following meanings:
“Agreement” means
this Registration Rights Agreement, as amended, supplemented or otherwise
modified from time to time.
“Commission” means
the United States Securities and Exchange Commission.
“Common Stock” means
the Company’s common stock, par value $.001 per share.
“Company” has the
meaning set forth in the preamble and also includes the Company’s successors
and permitted assigns.
“Initial Public
Offering” means a firm commitment underwritten public offering pursuant to
an effective registration statement under the Securities Act, covering the
offer and sale to the public of Common Stock for the account of the Company or
shareholders of the Company or both having an aggregate offering price to the
public of not less than $40,000,000 or, if such aggregate offering price is
less, in which the aggregate number of shares of common stock sold in the
offering equal at least twenty percent (20%) of the total number shares of
Common Stock and
Preferred Stock outstanding (exclusive of treasury shares) immediately after
the closing of such offering.
“Other Securities”
has the meaning set forth in Section 3.1.
“Person” means an
individual, partnership, corporation, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
“Philips” has the
meaning set forth in the preamble and also includes Philips’ Affiliates (other than the Company and its
Affiliates), its successors and permitted assigns.
“Preferred Stock”
means the Company’s preferred stock, par value $.001 per share.
“Prospectus” means
the prospectus included in the Registration Statement, including any
preliminary prospectus, and any such prospectus as supplemented by any
prospectus supplement with respect to the terms of the offering of any of the
Registrable Securities, and by all other amendments and supplements to such
prospectus, and in each case including all documents incorporated by reference
therein.
“register”, “registered”,
and “registration” refer to a registration of Registrable Securities
effected by preparing and filing a Registration Statement in compliance with
the Securities Act, and the declaration or ordering of the effectiveness of
such Registration Statement.
“Registrable
Securities” means any not previously registered Common Stock outstanding
and Common Stock issuable upon the exercise, conversion or exercise and
subsequent conversion of outstanding Preferred Stock, preferred securities,
options, warrants, debentures or any other convertible security, including any
securities initially issued in bearer form and constituting the unsold
allotment of a distributor (within the meaning of Regulation S under the
Securities Act) of such securities and later exchanged for securities in
registered form; provided, however, that a security ceases to be
a Registrable Security when it is no longer a Restricted Security.
“Registration Expenses”
means all expenses incident to the registration of Registrable Securities under
this Agreement, including, without limitation, all registration, filing and National Association of
Securities Dealers, Inc.; all fees and expenses of complying with state
securities or blue sky laws; all word processing, duplicating and printing expenses;
messenger and delivery expenses; the fees and disbursements of counsel for the
Company and its independent public accountants, including the expenses of any
special audits or “comfort” letters required by or incident to such
registration, premiums and other costs of policies of insurance obtained by the
Company against liabilities arising out of the public offering of Registrable
Securities being registered, any fees and disbursements of underwriters, and
any other registration expenses incident to the registration of Registrable
Securities, but excluding Selling Expenses.
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“Registration
Statement” means a registration statement filed under the Securities Act
providing for the registration of, and the sale by the holders of, any Registrable
Securities, filed by the Company pursuant to the provisions of Section 2
or 3 of this Agreement, including any amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
“Restricted Security”
means any security or share of Common Stock, including securities or shares of
Common Stock issuable upon conversion thereof, except any such security or
share of Common Stock which (i) has been effectively registered under the
Securities Act and sold in a manner contemplated by the Registration Statement,
(ii) has been transferred in compliance with Rule 144 under the Securities
Act (or any successor provision thereto) or is transferable pursuant to
paragraph (k) of such Rule 144 (or any successor provision thereto), or
(iii) has been sold in compliance with Regulation S under the
Securities Act (or any successor thereto) and does not constitute the unsold
allotment of a distributor within the meaning of Regulation S under the
Securities Act.
“Selling Expenses”
shall mean all underwriting discounts, selling commissions and transfer taxes,
if any, applicable to the sale of Registrable Securities by Philips, and all
fees and disbursements of counsel for Philips.
“Stock Purchase
Agreement” has the meaning set forth in the Recitals.
“Suspension Event”
has the meaning set forth in Section 2.2(c).
“underwriter”
means any underwriter of Registrable Securities in connection with an offering
thereof under a Registration Statement.
SECTION 2
DEMAND REGISTRATION RIGHTS
2.1 Notice and Registration. Upon written notice from Philips provided at
any time after the earlier of the Company’s Initial Public Offering or
October 1, 2002, requesting that the Company effect the registration under
the Securities Act of all or part of the Registrable Securities held by
Philips, which notice shall specify the intended method or methods of
disposition of such Registrable Securities (each such notice, a “Request”),
the Company shall use all commercially reasonable efforts to effect (at the
earliest possible date) the registration, under the Securities Act, of such
Registrable Securities for disposition in accordance with the intended method
or methods of disposition stated in such Request, provided that if the
Company shall have previously effected a registration with respect to Philips’
Registrable Securities pursuant to Section 2 or 3 hereof, the Company
shall not be required to effect a registration for Philips’ Registrable
Securities pursuant to this Section 2 until a period of six months shall
have elapsed from the effective date of the most recent such previous
registration. No registration of
Registrable Securities under this Section 2 shall relieve the Company of
its obligation (if any) to effect registrations of Registrable Securities
pursuant to Section 3.
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2.2 Limitations on Demand Registration
Rights. (a) Philips’ demand
registration rights pursuant to Section 2.1 may be exercised by Philips
only on five occasions. A request by Philips that the Company use all
commercially reasonable efforts to effect a registration shall not be
considered a Request if the Registration Statement relating thereto does not
become effective.
(b) Each
Request shall be with respect to a minimum of 25,000,000 shares of Common Stock
(it being understood and agreed that such number shall be adjusted from time to
time so that it shall represent no less than 5% (five percent) of the
outstanding shares of Common Stock of the Company at any time, taking into
consideration the occurrence of any stock splits, combinations, distributions
of stock dividends, issuances of rights or warrants, distributions of
indebtedness, securities or assets or any other changes that may alter the
current capitalization of the Company after the date hereof) or shall have a
proposed public offering price of at least $50,000,000.
(c) If,
while a Request is pending pursuant to this Section 2, the Company determines
in the good faith judgment of the Board of Directors of the Company, with the
advice of counsel, that the filing of a Registration Statement or the
declaration of effectiveness (A) would require the disclosure of non-public
material information the disclosure of which would have a material adverse
effect on the Company or would otherwise adversely affect a material financing,
acquisition, disposition, merger, reorganization or other comparable
transaction involving the Company, or (B) would otherwise adversely affect a
public offering of shares of Common Stock or other equity securities of the
Company for the account of the Company (provided that the Board of Directors of
the Company has previously authorized the Company to proceed with such an offering
and the Company is using its best efforts to promptly complete such public
offering)(such circumstances being hereinafter referred to as a “Suspension
Event”), the Company shall deliver a certificate to such effect signed by
its President or any Vice President to Philips and Philips shall have the right
(but not the obligation) to withdraw such Request. Whether Philips withdraws such Request or not, the Company shall
not be required to effect a registration pursuant to this Section 2 until
(i) with respect to the Suspension Event described in clause (A) above, the
earlier of the date upon which such material information is disclosed to the
public or ceases to be material or 120 days after the Company makes such good
faith determination, or (ii) with respect to the Suspension Event described in
clause (B) above, 120 days after the Company makes such good faith
determination; provided, however, that in no event shall
Suspension Events be permitted to take effect more than once in any 12-month
period.
2.3 Registration Expenses. The Company shall pay all (and will promptly
reimburse to Philips to the extent it has borne any) all Registration Expenses
with respect to any registration of Registrable Securities pursuant to this
Section 2, regardless of whether the Registration Statement filed in
connection with such registration becomes effective. Philips shall pay all
Selling Expenses applicable to the sale of Registrable Securities by Philips.
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SECTION 3
PIGGY-BACK REGISTRATION
3.1 Notice and Registration. If the Company proposes to register any
shares of Common Stock or other securities issued by it having terms
substantially similar to Registrable Securities (“Other Securities”) for
public sale under the Securities Act (whether proposed to be offered for sale
by the Company or by any other Person) on a form and in a manner which would
permit registration of Registrable Securities for sale to the public under the
Securities Act, it will give prompt written notice to Philips of its intention
to do so, which notice Philips shall keep confidential, and upon the written
request of Philips delivered to the Company within fifteen (15) Business Days
after the giving of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by Philips and the intended
method of disposition thereof) the Company will use its commercially reasonable
efforts to effect, in connection with the registration of the Other Securities,
the registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by Philips, to the extent
required to permit the disposition (in accordance with the intended method or
methods thereof as aforesaid) of Registrable Securities so to be registered, provided
that:
(a) if,
at any time after giving such written notice of its intention to register any
Other Securities and prior to the effective date of the Registration Statement
filed in connection with such registration, the Company shall determine for any
reason not to register the Other Securities, the Company may, at its election,
give written notice of such determination to Philips and thereupon the Company
shall be relieved of its obligation to register such Registrable Securities in
connection with the registration of such Other Securities (but not from its
obligation to pay Registration Expenses to the extent incurred in connection
therewith as provided in Section 3.2), without prejudice, however, to the
rights (if any) of Philips immediately to request that such registration be
effected as a registration under Section 2;
(b) the
Company will not be required to effect any registration of Registrable
Securities requested to be registered pursuant to this Section 3 if the
Company shall have been advised in writing (with a copy to Philips) by a
nationally recognized independent investment banking firm selected by the
Company to act as lead underwriter in connection with the public offering of
securities by the Company that, in such firm’s opinion, the registration of
such Registrable Securities at that time would adversely affect the Company’s
own scheduled offering, provided, however, that if an offering of
some but not all of the shares requested to be registered pursuant to this
Section 3 would not adversely affect the Company’s offering, the aggregate
number of shares requested to be included in such offering by Philips shall be
reduced accordingly; and
(c) the
Company shall not be required to effect any registration of Registrable
Securities under this Section 3 incidental to the registration of any of
its securities (i) on Form S-8 or any successor form to such Form or
in connection with any employee or director welfare, benefit or compensation
plan, (ii) on Form S-4 or any successor form to
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such Form or in
connection with an exchange offer, (iii) in connection with a rights
offering exclusively to existing holders of Common Stock, (iv) in
connection with an offering solely to employees of the Company or its
subsidiaries, or (v) relating to a transaction pursuant to Rule 145
of the Securities Act.
No registration of
Registrable Securities effected under this Section 3 shall relieve the
Company of its obligation (if any) to effect registrations of Registrable
Securities pursuant to Section 2.
3.2 Registration Expenses. The Company shall pay all (and will promptly
reimburse to Philips to the extent it has borne any) all Registration Expenses
with respect to any registration of Registrable Securities pursuant to this
Section 3, regardless of whether the Registration Statement filed in
connection with such registration becomes effective. Philips shall pay all Selling Expenses applicable to the sale of
Registrable Securities by Philips.
SECTION 4
REGISTRATION PROCEDURES
4.1 Registration and Qualification. If and whenever the Company is required to
use all commercially reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 2
or 3, the Company will as promptly as is practicable:
(a) prepare,
file and use all commercially reasonable efforts to cause to become effective a
Registration Statement under the Securities Act regarding the Registrable
Securities to be offered;
(b) prepare
and file with the Commission such amendments and supplements to such
Registration Statement and Prospectus used in connection therewith as may be
necessary to keep such Registration Statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities until the earlier of such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition by Philips set forth in such Registration Statement or
the expiration of 180 days after such Registration Statement becomes effective;
(c) furnish
to Philips and to any underwriter of such Registrable Securities such number of
conformed copies of such Registration Statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the Prospectus included in such Registration Statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by reference in
such Registration Statement or Prospectus, and such other documents as Philips
or such underwriter may reasonably request;
(d) use
its commercially reasonable efforts to register or qualify all Registrable
Securities covered by such registration statement under such other securities
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or blue sky laws of such
jurisdictions as Philips or any underwriter of such Registrable Securities
shall reasonably request, and do any and all other acts and things which may be
reasonably requested by Philips or any underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities covered by such
Registration Statement, except the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation
in any jurisdiction where it is not then subject to taxation, or to consent to
general service of process in any jurisdiction where it is not then subject to
service of process;
(e) use
all commercially reasonable efforts to list the Registrable Securities on each
national securities exchange on which the Common Stock is then listed, if the
listing of such securities is then permitted under the rules of such exchange;
(f) (i)
furnish to Philips an opinion of counsel for the Company, addressed to it,
dated the date of the closing under the underwriting agreement, and (ii) use
its commercially reasonable efforts to furnish to Philips, addressed to it, a
“comfort letter” signed by the independent public accountants who have
certified the Company’s financial statements included in such Registration
Statement, each such document covering substantially the same matters with
respect to such Registration Statement (and the Prospectus included therein)
and, in the case of such accountants’ letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer’s counsel and in accountants’ letters delivered to
underwriters in underwritten public offerings of securities and such other
matters as Philips may reasonably request;
(g) immediately
notify Philips at any time when a Prospectus relating to a registration
pursuant to Section 2 or 3 hereof is required to be delivered under the
Securities Act of the happening of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
at the request of Philips prepare and furnish to Philips as many copies of a
supplement to or an amendment of such Prospectus as Philips reasonably request
so that, as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; and
(h) immediately
notify Philips of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement filed pursuant to Section 2 or 3 hereof or the initiation of any
proceedings for that purpose and take every reasonable effort to obtain the
withdrawal of any such stop order.
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The Company may require
Philips to furnish the Company such information regarding Philips and the
proposed method of distribution of their respective Registrable Securities as
the Company may from time to time reasonably request in writing or as shall be
required by law or by the Commission in connection with any registration, and
Philips shall promptly notify the Company of the distribution of such
securities.
4.2 Underwriting.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested
hereunder, the Company will enter into and perform its obligations under an
underwriting agreement with such underwriters for such offering, such agreement
to contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided in
Section 6 hereof and the provision of opinions of counsel and accountants’
letters to the effect and to the extent provided in Section 4.1(f). Philips shall, if requested by such
underwriters, be party to any such underwriting agreement. Notwithstanding the foregoing, Philips may
elect, in writing prior to the effective date of the Registration Statement
filed in connection with such registration, not to register such Registrable
Securities in connection with such registration.
(b) In
the event that any registration pursuant to Section 3 hereof shall
involve, in whole or in part, an underwritten offering, the Company may require
Registrable Securities requested to be registered pursuant to Section 3 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the Other Securities being sold through underwriters under such
registration. In such case, the holders
of Registrable Securities on whose behalf Registrable Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement. Such agreement shall contain
such representations and warranties and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution to
the effect and to the extent provided in Section 6.
(c) In
the event that any registration pursuant to Section 2 hereof shall
involve, in whole or in part, an underwritten offering, Philips shall have the
right to select the underwriters for such underwritten offering, which
underwriters shall be subject to approval by the Company, which approval shall
not be unreasonably withheld or delayed. The underwriting agreement shall
contain such representations and warranties and such other terms and provisions
as are customarily contained in underwriting agreements with respect to
secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 6.
4.3 Qualification for Rule 144 Sales. The Company will use commercially reasonable
efforts to take all actions necessary to comply with the filing requirements
described in Rule 144(c) (1) so as to enable Philips to sell Registrable
Securities without registration under the Securities Act and, upon the written
request of Philips, the Company will promptly deliver to Philips a written
statement as to whether it has complied with such filing requirements. In
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connection with any sale, transfer or other
disposition by Philips of any Registrable Securities pursuant to Rule 144 under
the Securities Act, upon delivery to the Company of an opinion of Sullivan
& Cromwell or of other legal counsel that (to the Company’s reasonable
satisfaction) is knowledgeable in securities laws matters to the effect that
such disposition of Registrable Securities may be effected without registration
under the Securities Act, the Company shall cooperate with Philips to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any Securities Act legend,
and enable certificates for such Registrable Securities to be for such number
of shares and registered in such names as Philips may reasonably request at
least three (3) Business Days prior to any sale of Registrable Securities
hereunder.
SECTION 5
PREPARATION; REASONABLE INVESTIGATION
5.1 Preparation; Reasonable Investigation. In connection with the preparation and
filing of each Registration Statement registering Philips’ Registrable
Securities under the Securities Act, the Company will give Philips and the
underwriters, if any, and their respective counsel and accountants, drafts of
such Registration Statement for their review and comment prior to filing and
such reasonable and customary access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of Philips and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act, subject in all cases to mutually acceptable confidentiality
arrangements.
SECTION 6
INDEMNIFICATION AND CONTRIBUTION
6.1 Indemnification and Contribution. Upon the registration of the Registrable
Securities pursuant to Section 2 or 3 hereof:
(a) Indemnification
by the Company. The Company shall
indemnify and hold harmless Philips and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each Person who controls Philips or such underwriter, selling agent or other
securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes
referred to as an “Indemnified Person”) against any losses, claims,
damages or liabilities, joint or several, to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the
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omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however,
that the Company shall not be liable to any such Indemnified Person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or Prospectus, or
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person expressly for
use therein.
(b) Indemnification
by Philips. Philips agrees, upon
exercise of its registration rights pursuant to Section 2 or 3, to (i)
indemnify and hold harmless the Company, its directors, officers who sign any
Registration Statement and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to
which the Company or such other persons may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Registration Statement or Prospectus, or any amendment or supplement, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by Philips expressly for use therein, and
(ii) reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Notices
of Claims, Etc. Promptly after
receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 6, notify such indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 6. In case any
such action shall be brought against any indemnified party and it shall notify
an indemnifying party of the commencement thereof, such indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 6 for any legal expenses of other counsel or any
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other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or by such indemnified party, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim to the extent such fees or expenses were
incurred prior to an indemnifying party’s election to assume the defense of
such action or claim. 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.
(e) Notwithstanding
any other provision of this Section 6, in no event will Philips be
required to undertake liability to any Person under this Section 6 for any
amounts in excess of the dollar amount of the proceeds to be received by
Philips from the sale of Philips’ Registrable Securities (after deducting any
fees, discounts and commissions applicable thereto) pursuant to any
Registration Statement under which such Registrable Securities are to be
registered under the Securities Act.
(f) The
obligations of the Company under this Section 6 shall be in addition to
any liability which the Company may otherwise have to any Indemnified Person
and the obligations of any Indemnified Person under this Section 6 shall
be in addition to any
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liability which such
Indemnified Person may otherwise have to the Company. The remedies provided in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity.
7.1 Limitations on Subsequent
Registration Rights. The Company
shall not, without the consent of Philips, enter into any agreement (other than
this Agreement) with any securityholder or prospective securityholder of
Registrable Securities which would either (i) be inconsistent with the rights
granted to Philips hereunder or (ii) allow at any time such securityholder or
prospective securityholder to exercise registration rights of any kind with
respect to any Registrable Securities held by it before Philips was allowed or
able to register those of Philips’ Registrable Securities with respect to which
Philips shall have made a Request prior to the time of such other
securityholder’s or prospective securityholder’s request for registration;
provided, however, that (x) a Request withdrawn by Philips shall not be
considered a “Request” for purposes of this clause (ii) and (y) this clause
(ii) shall not limit the ability of the Company to enter into an agreement
which would allow such securityholder or prospective securityholder to exercise
registration rights at any time when Philips otherwise does not have an
unfulfilled Request outstanding.
7.2 Transfer of Registration Rights. Until the Company’s Initial Public Offering,
the right to cause the Company to register securities granted by the Company
under Sections 2 and 3 may be assigned by Philips to (i) one or more of its
Affiliates, or (ii) a transferee or assignee of not less than 25,000,000 shares
of Common Stock (it being understood and agreed that such number shall be adjusted
from time to time so that it shall represent no less than 5% (five percent) of
the outstanding shares of Common Stock of the Company at any time, taking into
consideration the occurrence of any stock splits, combinations, distributions
of stock dividends, issuances of rights or warrants, distributions of
indebtedness, securities or assets or any other changes that may alter the
current capitalization of the Company after the date hereof); provided that the
Company is given written notice by Philips at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee or assignee, identifying the securities with respect to which such
registration rights are being assigned and providing the written agreement of said
transferee to be bound by the terms of this Agreement.
7.3 Termination of the Company’s
Obligations. The Company shall
have no obligations pursuant to Sections 2 or 3 with respect to any Request or
Requests made by Philips after the earlier of (a) five years after the
Company’s Initial Public Offering or (b) the date at which Philips is able to
sell all Registrable Securities held by it within a one hundred eighty day
period in accordance with Rule 144 of the Commission.
7.5 GOVERNING LAW.
THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, AND
ANY CLAIMS OR DISPUTES RELATING THERETO, SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT
NOT INCLUDING THE CHOICE OF LAW RULES THEREOF.
7.6 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
7.7 Entire Agreement. This Agreement constitutes the full and entire understanding and
agreement among the parties with regard to the subjects hereof, and this
Agreement shall supersede and cancel all prior agreements between the parties
hereto with regard to the subject matter hereof, and in particular, but without
limiting the generality of the foregoing, it shall supersede the entire
registration rights, preemptive rights, rights of first refusal or any and all
similar rights held by Philips prior to the execution of this Agreement.
7.8 Notices, etc.
All notices and other communications required or permitted hereunder
shall be in writing and shall be mailed by first class mail, postage prepaid,
certified or registered mail, return receipt requested, addressed:
If to Philips, at:
Philips Consumer
Electronic Services B.V.
c/o Philips Electronics North America Corp.
1251 Avenue of the Americas
New York, NY 10020
Telecopy: (212) 536-0589
Attention: General Counsel
If to the Company, at:
10400 W. Higgins Road,
Suite 400
Rosemont, IL 60018
Telecopy: (847) 699-8057
Attention: General Counsel
or at such other address
as either party shall have furnished to the other in writing. All such notices and other written
communications shall be effective (i) if mailed, seven (7) days after
mailing, (ii) if delivered, upon delivery, or (iii) if faxed, within
one business day after transmission.
7.9 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to either party hereto upon any breach or default of
the other party under this Agreement shall impair any such right, power or
remedy of such party nor shall it be construed to be a waiver of any such
breach or default, or any acquiescence therein, or of or in any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party hereto of
any breach
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or default under this Agreement or any waiver on the
part of any party hereto of any provisions or conditions of this Agreement must
be made in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
7.10 Severability.
In case any provision of this Agreement shall be invalid, illegal, or
unenforceable, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. The parties hereto agree to
replace any such provision with a valid provision that reflects as closely as
possible the intent and spirit of the invalid provision.
7.11 Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
(i) compel specific performance of the obligations, covenants and
agreements of any other party under this Agreement in accordance with the terms
and conditions of this Agreement and (ii) obtain preliminary injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement in any court of the United States or any State thereof
having jurisdiction.
7.12 Titles and Subtitles. The titles of the Sections, sections and
paragraphs of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.13 Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, whether singular or plural, as the context may
require.
7.14 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first set forth above.
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NAVIGATION TECHNOLOGIES
CORPORATION
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a Delaware Corporation
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By:
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/s/ Judson Green
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Name:
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Judson Green
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Title:
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President and
Chief Executive Officer
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PHILIPS CONSUMER
ELECTRONIC
SERVICES B.V.
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By:
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/s/ Belinda W.
Chew
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Name:
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Belinda W. Chew
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Title:
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Attorney-in-fact
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