Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1/A Pre-Effective Amendment to Registration Statement HTML 1.60M
(General Form)
2: EX-1.1 Underwriting Agreement HTML 343K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 46K
4: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 80K
5: EX-5.1 Opinion re: Legality HTML 17K
6: EX-10.21 Material Contract HTML 60K
7: EX-23.1 Consent of Experts or Counsel HTML 8K
This Formal Settlement Agreement and General Release (the “Agreement”),
entered into as of this 16th day of December, 2005, is made and entered into by
Santa Fe Technologies, Inc. (“Santa Fe Technologies”), Traffic.com, Inc., f/k/a
Argus Networks, Inc. (“Argus”), and TL Ventures L.P., f/k/a TL Ventures LLC (on
behalf of itself and all its related entities, collectively “TL Ventures” as
defined below in Paragraph 3) hereinafter collectively referred to as “the
Parties,” or individually, a “Party,” in furtherance of the Parties’ Memorandum
of Settlement entered on November 17, 2005.
WHEREAS, Santa Fe Technologies filed an action in the Second
Judicial District in the State of New Mexico, Bernalillo County, entitled Santa Fe Technologies, Inc. v. Argus Networks, Inc., TL Ventures LLC,
et al., Case No. CV99-07715, in which Santa Fe Technologies made
certain claims against Argus and TL Ventures, including but not limited to
claims of conversion, breach of fiduciary duty, conspiracy and unjust
enrichment (hereinafter the “New Mexico Litigation”);
WHEREAS, Argus filed a counter-claim in the New Mexico
Litigation, including but not limited to claims of breach of contract, quantum meruit/unjust enrichment and misrepresentation;
WHEREAS, the New Mexico Litigation proceeded to trial on June20, 2005, before the Honorable Valerie A. Huling, on Santa Fe Technologies’
claims for conversion, breach of fiduciary duty, conspiracy and unjust
enrichment, all other causes of action having been dismissed by the Court as a
result of motion practice or at Santa Fe Technologies’ request;
WHEREAS, an Amended Judgment in this matter was entered by the
District Court on October 13, 2005, superseding a Judgment entered on August19, 2005, incorporating a verdict
rendered by the jury on June 29, 2005, as well as
various rulings by the Court concerning motions filed by Argus and TL Ventures;
WHEREAS, Argus and TL Ventures dispute Santa Fe Technologies’
claims and the validity of the judgment entered, and deny any and all liability
or wrongdoing whatsoever;
WHEREAS, Argus and TL Ventures have filed Notices of Appeal
and Santa Fe Technologies has filed a Notice of Cross-Appeal;
WHEREAS, the Parties entered a Memorandum of Settlement on
November 17, 2005 and desire to resolve all potential or existing claims among
them.
NOW, THEREFORE, in consideration of the representations, releases,
covenants, agreements and conditions contained herein, and other good and
valuable consideration the sufficiency of which are hereby acknowledged, and
for the purpose of fully and completely resolving the claims between the
Parties and any and all potential or existing claims that might have been or
might be asserted, the Parties agree as follows:
1. Payment to Santa Fe Technologies.
Argus and
TL Ventures obligate themselves to pay Fourteen Million Two-Hundred Fifty
Thousand Dollars ($14,250,000.00) (hereinafter “Settlement Amount”) to Santa Fe
Technologies, in the following manner: a) within 30 days from November 17,2005, Argus and TL Ventures shall cause to be wired 1/2 of the Settlement
Amount to the trust account of Santa Fe Technologies’ counsel John Pound; and
b) within 60 days from November 17, 2005, Argus and TL Ventures shall cause to
be wired the remaining 1/2 of the Settlement Amount to the trust account of Mr.
Pound.
2. Non-Disparagement. None of the Parties hereto, nor any agent
or representative of any Party hereto, shall disparage or defame the
reputation, character, image, products or services of any other Party, or the
reputation or character of any directors, officers, employees,
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agents, or any
representatives of a Party, or encourage any other person or entity to take any
actions that may be damaging to any other Party’s reputation, character, image,
product or services.
3. Release. Upon receipt in full of the two payments
described in Paragraph 1, above, Santa Fe Technologies irrevocably and
unconditionally releases and forever discharges Argus and TL Ventures (defined
as including but not limited to TL Ventures LLC and its successor TL Ventures
L.P., TL Ventures, TL Ventures Inc. and its predecessor Technology Leaders
Management, Inc., TL Ventures V L.P., TL Ventures V Interfund L.P., TL Ventures
V Management L.P., TL Ventures V LLC, TL Ventures IV L.P., TL Ventures IV
Interfund L.P., TL Ventures IV Management L.P., TL Ventures IV LLC, TL Ventures
III L.P., TL Ventures III Interfund L.P., TL Ventures III Offshore L.P., TL
Ventures III Management L.P., TL Ventures III General Partner L.P., TL Ventures
III Manager LLC, TL Ventures III Partners L.P., TL Ventures III Offshore
Partners L.P., TL Ventures III Offshore Ltd., Technology Leaders II L.P.,
Technology Leaders II Offshore C.V., Technology Leaders 11 Management L.P.,
Technology Leaders L.P., Technology Leaders Offshore C.V., Technology Leaders
Management L.P., Technology Leaders Partners I, Radnor Venture Partners, L.P.,
Radnor Venture Management Company, EnerTech Capital Partners, EnerTech Capital
Partners, L.P., EnerTech Management L.P., EnerTech Management Company L.P.,
EnerTech Management Company Manager LLC, EnerTech Capital Partners II L.P., ECP
II Interfund L.P., ECP II Management L.P., ECP II Management LLC, EnerTech
L.P., EnerTech Manager LLC, EnerTech, Inc., EnerTech Capital Holding Company,
L.P., EnerTech Capital Holding Company Manager LLC, TL Ventures Manager LLC, TL
Ventures Holding Company L.P., TL Ventures Holding Company Manager LLC, and
Safeguard Scientifics, Inc.), and each of its and their current or former
directors,
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officers, partners, members, agents, employees, representatives,
attorneys, administrators, shareholders, divisions, predecessors, successors,
affiliates, assigns, subsidiaries, parents and any and all affiliates,
successors or assigns of any of the foregoing, from and against any and all
liabilities, obligations, duties, claims, losses, assessments, demands, debts,
damages, fees, penalties, rights of action, causes of action, complaints,
costs, expenses, rights of contribution and indemnification, controversies or
attorneys’ fees, of any kind or character whatsoever, whether known or unknown,
suspected or unsuspected, asserted or unasserted, present or future, certain or
contingent, fixed or liquidated, at law or in equity, sounding in contract,
tort or otherwise.
Upon entry of an order vacating the Judgment of August 19, 2005 and the
Amended Judgment of October 13, 2005 and dismissing any and all claims brought
in the New Mexico Litigation as provided below in Paragraph 6, Argus and TL
Ventures irrevocably and unconditionally release and forever discharge Santa Fe
Technologies and each of its current or former directors, officers, partners,
members, agents, employees, representatives, attorneys, administrators,
shareholders, divisions, predecessors, successors, affiliates, assigns,
subsidiaries, parents and any and all affiliates, successors or assigns of any
of the foregoing from and against any and all liabilities, obligations, duties,
claims, losses, assessments, demands, debts, damages, fees, penalties, rights
of action, causes of action, complaints, costs, expenses, rights of
contribution and indemnification, controversies or attorneys’ fees, of any kind
or character whatsoever, whether known or unknown, suspected or unsuspected,
asserted or unasserted, present or future, certain or contingent, fixed or
liquidated, at law or in equity, sounding in contract, tort or otherwise.
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4. Finality of Release. The Parties understand and acknowledge
that they may hereafter discover facts in addition to or different from those
which they believed to be true on the date of execution of this Agreement. The Parties agree that all claims shall
nonetheless be deemed to be fully, finally, and forever settled and released,
as set forth in Paragraph 3 above, without regard to the subsequent discovery
or existence of additional or different facts.
Further, in entering this Agreement, each Party assumes the risk of
mistake, and if any Party should subsequently discover that any fact it relied
upon in entering into this Agreement was untrue, or that its understanding of
the facts or law was incorrect, such Party shall not be entitled to set aside
this Agreement or be entitled to recover any damages on that account unless the
mistake was due to an intentional misrepresentation by the other Party. This Agreement, and the covenants and
releases it contains, is intended, pursuant to the advice of independently
selected legal counsel, to be final and binding between the Parties to this
Agreement regardless of any claims of mistake of fact or law, or of any other
circumstance whatsoever.
5. Protection from Contribution or Indemnity Claims. In the event that any of the Parties to this Agreement
were to ever file any claims against third parties for any damages claimed in
the New Mexico Litigation, said Party will fully protect the remaining Parties
from, and indemnify them for, contribution or indemnity claims of any kind or
character whatsoever.
6. Vacating the New Mexico Judgment.
On the
date of the final payment described in Paragraph 1, the Parties will file a
joint motion and stipulated order vacating the Judgment of August 19, 2005, and
the Amended Judgment of October 13, 2005, and dismissing any and all claims
brought in the New Mexico Litigation with prejudice. Upon entry of said order, the New Mexico
Judgment and Amended Judgment will thereafter have no effect or force
whatsoever, and cannot be executed upon, or used or enforced in any manner in
subsequent
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litigation. The Parties also agree, upon the final
payment described in Paragraph 1, to dismiss their appeals, currently pending
before the New Mexico Court of Appeals, which have been stayed pending
execution of the settlement and related documents.
7. No Admission of Liability. This Agreement represents the settlement
of disputed claims, and does not constitute nor should it be construed as an
admission of the correctness of any position asserted by any Party nor an
admission of liability or of any wrongdoing by any Party. Neither this Agreement nor any of its terms
shall be offered or received in evidence as an admission of any liability or
wrongdoing by any Party.
8. Confidentiality. Unless otherwise agreed by each of the
Parties or required by law (including but not limited to disclosures required
by statutes, SEC regulations or fiduciary duties), none of the Parties may
disclose the terms of this Agreement, including but not limited to the
Settlement Amount, to the news media or, hereafter, to any third party (other
than to its officers, directors, shareholders, investors, limited partners,
attorneys, accountants, tax advisers, insurers or regulators). Nothing herein shall prevent a Party, or
other released person or entity, from asserting, in an appropriate forum, this
Agreement or the Release (in Paragraph 3) in a legal proceeding, provided that
it is submitted under seal or is otherwise sought to be kept confidential.
9. Construction. This Agreement shall not be construed in
the favor of one or another Party based upon who may have contributed more to
its drafting or on any other basis. The
descriptive headings of the paragraphs of this Agreement are inserted for
convenience only, and do not affect the construction of any part of this
Agreement.
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10. Counterparts. This Agreement may be executed in
counterparts and by facsimile. Each of
said counterparts, when so executed and delivered, shall be deemed an original
and, taken together, shall constitute but one and the same instrument.
11. Entire Agreement. This Agreement, in furtherance of the
Parties’ Memorandum of Settlement executed on November 17, 2005, constitutes
the entire, final and complete agreement and obligation between the Parties,
and supersedes and replaces all prior oral and written agreements and
understandings between the Parties or their representatives with respect to the
subject matter of this Agreement. Any
modification of or addition to this Agreement must be in writing, and signed by
all Parties hereto.
12. Further Actions to Effectuate Agreement. Each Party, without further consideration, agrees to
execute and/or deliver such other documents and to take such other action
necessary, convenient, or desirable in the reasonable opinion of any other
Party, to effect the provisions of this Agreement.
13. Authority. Each Party, and the person signing on its
behalf below, represents and warrants to the other Parties that it has full
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, and that it has not assigned to anyone any of
the claims, demands, actions or causes of action, or any portion thereof, which
it has asserted or which could have been asserted in the Litigation.
14. Advice of Counsel. The Parties hereto acknowledge that they
have been and are fully advised by legal counsel of their own choice, and fully
understand the terms and conditions of this Agreement, and the meaning and
import thereof, and that their execution of this Agreement is with the advice
of counsel and of their own free will and desire. The Parties are aware that this Agreement
includes releases of known and unknown claims.
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15. Governing Law and Dispute Resolution.
This
Agreement, and any disputes arising out of or relating to this Agreement, shall
be governed by and construed in accordance with the laws of the State of
Pennsylvania. If any Party contends that
any other Party has breached the terms of this Agreement, such Party will give
the other Party notice of this contention by certified mail. Any litigation concerning or related to this
Agreement or its breach shall be conducted exclusively in an arbitration in San
Francisco under JAMS rules. The Parties
agree to such exclusive jurisdiction and venue.
The prevailing Party in any such arbitration shall be entitled to
recover from the other Party its reasonable attorneys’ fees, as well as any
other reasonable expenses incurred in connection with the arbitration as
determined by the arbitrator.
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In witness whereof, the Parties have executed this Formal Settlement
Agreement and General Release by their duly authorized representatives, whose
signatures appear below.
SANTA FE TECHNOLOGIES, INC.
By:
Title:
The foregoing
instrument was acknowledged before me on this
day of December, 2005, by .
Notary Public
My commission expires:
TRAFFIC.COM, INC. f/k/a Argus Networks, Inc.
By:
Title:
The foregoing
instrument was acknowledged before me on this
day of December, 2005, by .
Notary Public
My commission expires:
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TL VENTURES LLC, by its successor
TL VENTURES L.P., by its general partner
TL VENTURES MANAGER LLC
By:
Pamela A. Strisofsky
Title:
Chief Financial Officer
The foregoing
instrument was acknowledged before me on this
day of December, 2005, by .
Notary Public
My commission expires:
APPROVED:
Attorneys for Traffic.com, Inc., f/k/a Argus
Networks, Inc.
