Schedule 13D/A

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Tc9wisOpNcCYLGen34D9ePm2MQcQGbxkM7dxutGzpnducawNrM6yizBIFLXANUJ4 H6dPGAS+FgboZ2vTmNGqfQ== 0001193125-03-043842.txt : 20030829 0001193125-03-043842.hdr.sgml : 20030829 20030829142746 ACCESSION NUMBER: 0001193125-03-043842 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20030829 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MINORPLANET SYSTEMS USA INC CENTRAL INDEX KEY: 0000944400 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 510352879 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-49422 FILM NUMBER: 03873794 BUSINESS ADDRESS: STREET 1: 1155 KAS DRIVE STREET 2: STE 710 CITY: RICHARDSON STATE: TX ZIP: 75081 BUSINESS PHONE: 9727322500 MAIL ADDRESS: STREET 1: 16479 DALLAS PARKWAY STREET 2: STE 710 CITY: DALLAS STATE: TX ZIP: 75248 FORMER COMPANY: FORMER CONFORMED NAME: MINORPLANET SYSTEMS USA DATE OF NAME CHANGE: 20020729 FORMER COMPANY: FORMER CONFORMED NAME: AT TRACK COMMUNICATIONS INC DATE OF NAME CHANGE: 20000425 FORMER COMPANY: FORMER CONFORMED NAME: HIGHWAYMASTER COMMUNICATIONS INC DATE OF NAME CHANGE: 19950424 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MINORPLANET SYSTEMS PLC CENTRAL INDEX KEY: 0001143670 FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: GREENWICH HOUSE STREET 2: SHEEPSCAY LEEDS CITY: UNITED KINGDOM BUSINESS PHONE: 011441132511600 MAIL ADDRESS: STREET 1: GREENWICH HOUSE STREET 2: SHEEPSCAY LEEDS CITY: UNITED KINGDOM SC 13D/A 1 dsc13da.htm SCHEDULE 13D/A Schedule 13D/A

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)

MINORPLANET SYSTEMS USA, INC.

(FORMERLY @TRACK COMMUNICATIONS, INC.)

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class of Securities)

04648Y 20 4

(CUSIP Number)

Robert Kelly

Minorplanet Systems PLC

Greenwich House

Sheepscar, Leeds LS7 2AA

United Kingdom

011 44 113 251 1600

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

Copy to:

Brian S. North, Esquire

Buchanan Ingersoll Professional Corporation

1835 Market Street, 14th Floor

Philadelphia, PA 19103

(215) 665-8700

August 29, 2003

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No.: 04648Y 20 4


1.	Name of Reporting Persons and I.R.S. Identification Nos. of above persons (entities only) Minorplanet Systems PLC

2.	Check the Appropriate Box if a Member of a Group (a) ¨ (b) ¨

3.	SEC Use Only

4.	Source of Funds WO, OO(1)

5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨

6.	Citizenship or Place of Organization United Kingdom

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

30,000,000 Shares(*)

8. Shared Voting Power

-0- Shares

9. Sole Dispositive Power

30,000,000 Shares(*)

10. Shared Dispositive Power

-0- Shares

11.	30,000,000(*)

12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares	¨

13.	Percent of Class Represented by Amount in Row (11) 62.0%

14.	Type of Reporting Person (See Instructions) CO

(1)

In June of 2001, Minorplanet Systems PLC (“Minorplanet”) used working capital for the acquisition of 2,000,000 shares of the Common Stock of Minorplanet Systems USA, Inc. (the “Issuer”). In addition, Minorplanet sold all of its share capital in Minorplanet Limited, a wholly owned subsidiary, in consideration for an additional 28,000,000 shares of Common Stock of the Issuer. The total of these two purchases represent the 30,000,000 aggregate total shares of Common Stock covered by this report. The purchases were originally reported in a Schedule 13D filed June 21, 2001.

(2)

The 30,000,000 shares of Common Stock of the Issuer covered by this report were purchased pursuant to the Stock Purchase and Exchange Agreement, dated as of February 14, 2001, by and among the Issuer, Minorplanet, and Mackay Shields LLC (“Mackay”). The transactions contemplated by the Stock Purchase and Exchange Agreement were consummated on June 21, 2001. On June 5, 2001, prior to the consummation of the transactions contemplated by the Stock Purchase and Exchange Agreement, the Issuer effected a 1-for-5 reverse stock split. All figures relating to shares covered in this report are referenced on a post-reverse stock split basis unless otherwise indicated.

Pursuant to Rule 13d-2 promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby files this Amendment No. 2 (this “Amendment”) to the Schedule 13D filed by Minorplanet Systems PLC (“Minorplanet”) on July 18, 2001, as amended by Amendment No. 1 filed by Minorplanet on July 9, 2003, with the Securities and Exchange Commission relating to the Common Stock of Minorplanet Systems USA (the “Issuer”). In this Amendment, the undersigned amends and restates the entire text of Item 2, 4, 5 and 6.

Item 2.

Identity and Background.

This Amendment to Schedule 13D is being filed by Minorplanet Systems PLC (“Minorplanet”), a United Kingdom public limited company. Minorplanet produces and sells systems that track vehicles and generate management information reports by using global positioning satellite technology and its own proprietary software to help fleet managers manage their vehicle fleets more efficiently. The principal offices of Minorplanet are located at Greenwich House, Sheepscar, Leeds LS4 2LE, United Kingdom.

Schedule A hereto sets forth the name, business address, present principal occupation or employment (including the name, principal business and address of the corporation or other organization in which such employment is conducted) and citizenship of each director and executive officer of Minorplanet. The information set forth in Schedule A hereto is incorporated herein by reference.

During the past five years, neither Minorplanet nor, to its knowledge, any of the persons listed on Schedule A attached hereto, has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was, or is, subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws.

Item 4.

Purpose of the Transaction

Stock Purchase and Exchange Agreement

Upon consummation of the transactions contemplated by the Stock Purchase and Exchange Agreement dated as of February 14, 2001 (the “Stock Purchase and Exchange Agreement”) by and among the Issuer, Minorplanet, and Mackay Shields LLC, Minorplanet became the majority stockholder and obtained control of the Issuer.

In accordance with Section 6.01 of the Stock Purchase and Exchange Agreement, Minorplanet has the right to appoint two (2) directors to the Issuer’s board of directors. Notwithstanding this provision in the Agreement, as a holder of more than 50% of the Issuer’s shares, Minorplanet is able to control the election of all the directors if it desires to do so in the future. Minorplanet also has the contractual right under the Stock Purchase and Exchange Agreement to gain such number of seats on the board of directors commensurate with its percentage ownership of the Issuer’s stock.

Concurrent with the closing under the Stock Purchase and Exchange Agreement, Minorplanet designated and the Issuer’s board of directors appointed two directors to the Issuer’s board of directors in accordance with the Issuer’s bylaws. However, effective June 24, 2003, the two directors of the Issuer then designated by Minorplanet resigned. Minorplanet has not exercised its right to designate replacements for the two resigning directors, but, subject to the Letter Agreement described below (see “Letter Agreement”), retains the right to do so in the future.

In addition, under the terms of the Stock Purchase and Exchange Agreement, so long as Minorplanet owns at least 5% of the outstanding Common Stock of the Issuer, both directors appointed to the Issuer’s board of directors by Minorplanet must approve the following actions by the Issuer: (i) any capital expenditure by the Issuer that is not contemplated in any current annual budget which exceeds $200,000; (ii) the hiring and firing of an Issuer officer or senior executive reporting to the chief executive officer who has an annual salary of $130,000 or more, or entering into employment agreements with these individuals or amendments to existing agreements; (iii) the direct or indirect redemption, purchase or making of any payments with respect to stock appreciation rights and similar types of stock plans; (iv) the sale, lease or transfer of any assets of the Issuer representing 5% or more of the Issuer’s consolidated assets, or the merger, consolidation, recapitalization, reclassification or other changes to the capital stock of the Issuer; (v) except as required under law, the taking or instituting of bankruptcy or similar proceedings; (vi) the issuance, purchase, acquisition or redemption of any capital stock or any notes or debt convertible into equity; (vii) the acquisition of another entity; (viii) the entering into any agreement or contract which commits the Issuer to pay more than $200,000; (ix) the amendment of the Issuer’s certificate of incorporation or bylaws that would adversely affect holders of the Issuer’s Common Stock or Minorplanet’s rights under the Stock Purchase and Exchange Agreement; (x) the exiting of, or entering into a different line of business; (xi) the incurrence of any indebtedness or liability or the making of any loan except in the ordinary course of business; (xii) the placing of any lien on the Issuer’s assets or properties; or (xiii) the adoption or implementation of any anti-takeover provision that would adversely affect Minorplanet.

The preceding discussion of the transactions and the Stock Purchase and Exchange Agreement is qualified in its entirety by the full text of the Agreement that is filed as an exhibit to this Schedule 13D and incorporated herein by reference.

Registration Rights Agreement

As a condition to consummating the Agreement, the Issuer, Minorplanet, Mackay and certain other parties agreed to enter into that certain Registration Rights Agreement (the “Registration Rights Agreement”). As part of the closing on June 21, 2001, such parties entered into the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, the Issuer agreed that within 90 days of the Closing, it would prepare and file with the Securities and Exchange Commission a shelf registration statement covering, among other securities, 9% of the shares issued to Minorplanet and all of the shares issued to Mackay under the Stock Purchase and Exchange Agreement. The Issuer has filed a Registration Statement on Form S-3 (No. 333-71340) registering the resale of 2,700,000 shares of the Issuer’s Common Stock held by Minorplanet.

Under the Registration Rights Agreement, the holders of at least 10% of the shares then outstanding under the shelf registration statement, but in no event less than 3,000,000 shares (on a pre stock-split basis), may demand up to three underwritten offerings of shares from the shelf registration statement. The Issuer also granted holders of at least 15% of the shares of Common Stock issued in the transactions contemplated by the Stock Purchase and Exchange Agreement, but in no event less than 3,000,000 shares (on a pre stock-split basis), the right to demand up to five additional offerings, which may be underwritten offerings, of their remaining shares. These offerings are subject to certain conditions set forth in the Registration Rights Agreement. Minorplanet also received “piggyback” registration rights that generally allow it to participate in other public stock offerings undertaken by the Issuer.

The preceding discussion of the Registration Rights Agreement is qualified in its entirety by the full text of the Registration Rights Agreement that is filed as an exhibit to this Schedule 13D and incorporated herein by reference.

Letter Agreement

On August 15, 2003, Minorplanet entered into a binding letter agreement (the “Letter Agreement”) with the Issuer (see Exhibit 5 hereto) which relates to: (i) an amendment to the Exclusive License and Distribution Agreement dated June 13, 2001 entered into between Mislex (302) Limited, as licensee, now known as Minorplanet Systems USA Limited, a United Kingdom private limited company which is the wholly-owned subsidiary of Caren (292) Limited, a United Kingdom private limited company which is the wholly-owned subsidiary of the Issuer (“UK Sub 1”), and UK Sub 1, as licensor, which assigned its rights as licensor to Minorplanet Limited (the “Licensor”), a United Kingdom private limited company which is a subsidiary of Minorplanet (the “License Agreement”); (ii) the waiver of certain rights held by Minorplanet under (A) the Stock Purchase and Exchange Agreement, (B) an Addendum to the License Agreement dated September 26, 2002 (the “Addendum”) and (C) the Second Amended and Restated Bylaws (the “Bylaws”) of the Issuer (see Exhibit 6 hereto); (iv) an Anti-Dilution Agreement to be entered into by the Issuer and Minorplanet at the closing under the Letter Agreement (see Exhibit 7 hereto) and (iv) certain other transactions described therein (collectively, the “Transactions”). These agreements and Transactions shall be effective at a subsequent closing. As a condition to that closing, Minorplanet is required to sell 20,378,517 shares (the “Shares”) of the Issuer’s Common Stock to The Erin Mills Investment Corporation, a Canadian corporation (“Erin Mills”), pursuant to the terms of that certain Stock Purchase and Sale Agreement (the “Purchase Agreement”), dated August 15, 2003 (see Exhibit 4 hereto). The closing under the Letter Agreement and the sale of the Shares by Minorplanet to Erin Mills is subject to certain closing conditions, including the receipt by Minorplanet of its shareholders approval for the Purchase Agreement and the transactions contemplated thereby, in accordance with the United Kingdom Listing Authority rules.

Upon consummation of the Transactions and the closing under the Purchase Agreement, Minorplanet would own 9,621,483 share of Common Stock, or 19.9% of the Issuer’s issued and outstanding Common Stock (as of July 14, 2003, the date given in the Issuer’s latest Form 10-Q). Minorplanet would receive $1.00 from Erin Mills for the sale of the Shares, and would receive licensing and other rights from the Issuer as part of the Transactions. Minorplanet would also receive rights under the Anti-Dilution Agreement, which provides that, in the event the Issuer

issues or proposes to issue additional shares of Common Stock, or any security exercisable, convertible or exchangeable for Common Stock, then Minorplanet would have the right to purchase, at the same price per share, that number of shares which would be necessary to maintain Minorplanet’s ownership percentage at 19.9% on a fully diluted basis (as defined in the Anti-Dilution Agreement).

Upon the consummation of the Transactions and the closing under the Purchase Agreement Minorplanet would also waive certain rights pursuant to an Irrevocable Waiver and Consent (the “Waiver”). Minorplanet would relinquish certain rights with respect to (i) provisions of the Stock Purchase and Exchange Agreement, (ii) the Addendum, and (iii) the Bylaws. In accordance with the terms of the Waiver, at closing Minorplanet would irrevocably and forever waive its right, previously granted under the Stock Purchase and Exchange Agreement and Bylaws, to appoint directors to the Issuer’s board of directors. Minorplanet would also waive the anti-dilution protection given to it in the Stock Purchase and Exchange Agreement, which would be replaced by the anti-dilution protection to be given to Minorplanet under the Anti-Dilution Agreement. Minorplanet would also surrender its right to receive periodic financial statements from the Issuer, and its ability to freely exchange Issuer stock certificates at the Issuer’s expense. Finally, Minorplanet would waive its agreement with the Issuer to consult with each other in connection with any discussions that may occur between the Issuer and Nasdaq with respect to continued listing or quotation of the Issuer’s securities on Nasdaq.

Additionally, in accordance with Section 4(p) of the Letter Agreement, at closing Erin Mills is required to have executed and delivered to the Issuer a stock option repurchase agreement, in which the Issuer would receive an option to purchase 19,378,517 shares of Common Stock of the Issuer acquired by Erin Mills pursuant to the Purchase Agreement.

The preceding discussion of the transactions and the Purchase Agreement, Waiver, Agreement and Anti-Dilution Agreement is qualified in its entirety by the full text of the Purchase Agreement, Waiver, and Anti-Dilution Agreement that are filed as exhibits to this Schedule 13D and incorporated herein by reference.

An Indenture entered into between the Issuer and JP Morgan Chase Bank, as trustee, as successor-in-interest to Texas Commerce Bank National Association, dated September 23, 1997, as supplemented by that certain First Supplemental Indenture dated as of June 20, 2001 as in effect on the date hereof, relating to MPUSA’s 13 ¾% Senior Subordinated Notes due 2005 (the “Indenture”) requires “Permitted Holders” to hold at least 35% of the voting shares to avoid triggering the change of control provisions set forth in the Indenture. Erin Mills is listed as a permitted holder in the Indenture.

Other than as described above, Minorplanet does not have any present plans or proposals that relate to or would result in any of the actions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

Item 5.

Interest in Securities of the Issuer.

Minorplanet may be deemed to be the beneficial owner of 30,000,000 shares of the Common Stock. Such shares represent approximately 62.0% of the outstanding shares of the Common Stock. Minorplanet has sole voting and investment power with respect to the entire 30,000,000 shares of Common Stock. Following the closing of the Transactions and the Purchase Agreement discussed above, Minorplanet would be the beneficial owner of 9,621,483 shares of Common Stock. Those shares would represent approximately 19.9% of the outstanding shares of the Common Stock (as of July 14, 2003, the date given in the Issuer’s latest Form 10-Q).

Except as described herein, neither Minorplanet nor, to the best of Minorplanet’s knowledge, any other person referred to in Schedule A attached hereto, beneficially owns or has acquired or disposed of any shares of the Common Stock during the past 60 days.

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Except for the agreements described above, Minorplanet and none of the persons named on Schedule A has any contracts, arrangements, understandings or relationships (legal or otherwise) with any persons with respect to any securities of the Issuer.

Item 7.

Material to be Filed as Exhibits.


Exhibit 1:		Stock Purchase and Exchange Agreement, dated as of February 14, 2001, by and among Minorplanet Systems PLC, @Track Communications, Inc., and Mackay Shields LLC. (1)

Exhibit 2:		Registration Rights Agreement, dated as of June 21, 2001, by an between @Track Communications, Inc., Minorplanet Systems PLC, and the Other Holders Party thereto. (1)

Exhibit 3:		Minorplanet Systems PLC (“MPS”) Shareholding in Minorplanet Systems USA Inc. (the “Company”). (2)

Exhibit 4:		Stock Purchase and Sale Agreement, dated as of August 15, 2003, by and among Minorplanet Systems PLC and The Erin Mills Investment Corporation.

Exhibit 5:		Binding Letter Agreement, dated as of August 15, 2003, by an between Minorplanet Systems USA, Inc., Minorplanet Systems PLC, and Minorplanet Limited.

Exhibit 6:		Form of Irrevocable Waiver and Consent to Amendment of Bylaws.

Exhibit 7:		Form Anti-Dilution Agreement by and among Minorplanet Systems USA, Inc. and Minorplanet Systems PLC.

(1)

Filed as an exhibit to the initial Schedule 13D filed on July 18, 2001.

(2)

Filed as an exhibit to Amendment No. 1 to the Schedule 13D filed on July 9, 2003.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: August 29, 2003

MINORPLANET SYSTEMS PLC

By:		/s/ ROBERT D. KELLY
Name:		Robert D. Kelly
Title:		Director

Schedule A

DIRECTORS AND EXECUTIVE OFFICERS

The following table sets forth the name and present principal occupation or employment of each director and executive officer of Minorplanet, as well as the name, principal business and address of such employer. The principal business address of each person listed below is Greenwich House, 223 North Street, Leeds, West Yorkshire, LS7 2AA. Each person listed below is a citizen of the United Kingdom.

Name	Principal Occupation	Principal Employer
Michael David Abrahams	Executive Director	Minorplanet Systems Plc

David Martin Best	Executive Director	Minorplanet Systems Plc

Dr. Christopher Gerard Harrison	Executive Director	Minorplanet Systems Plc

John Dennis Macey	Executive Director	Minorplanet Systems Plc

Andrew Daniel Tillman	Executive Director	Minorplanet Systems Plc

Robert Daniel Kelly	Executive Director	Minorplanet Systems Plc

David Gordon Perry	Non Executive Director	Kelda Group Plc

Sir Martin Wakefield Jacomb	Non Executive Director	Delta Plc

Charles Edward Alexander	Non Executive Director	GE Capital Europe

James Keating	Non Executive Director	Krossbow Holdings Limited

Lucy Ann Woods	Non Executive Director	VTL (UK) Limited

EXHIBIT INDEX


Exhibit 1:		Stock Purchase and Exchange Agreement, dated as of February 14, 2001, by and among Minorplanet Systems PLC, @Track Communications, Inc., and Mackay Shields LLC. (1)

Exhibit 2:		Registration Rights Agreement, dated as of June 21, 2001, by an between @Track Communications, Inc., Minorplanet Systems PLC, and the Other Holders Party thereto. (1)

Exhibit 3:		Minorplanet Systems PLC (“MPS”) Shareholding in Minorplanet Systems USA Inc. (the “Company”). (2)

Exhibit 4:		Stock Purchase and Sale Agreement, dated as of August 15, 2003, by and among Minorplanet Systems PLC and The Erin Mills Investment Corporation.

Exhibit 5:		Binding Letter Agreement, dated as of August 15, 2003, by an between Minorplanet Systems USA, Inc., Minorplanet Systems PLC, and Minorplanet Limited.

Exhibit 6:		Form of Irrevocable Waiver and Consent to Amendment of Bylaws.

Exhibit 7:		Form Anti-Dilution Agreement by and among Minorplanet Systems USA, Inc. and Minorplanet Systems PLC.

(1)

Filed as an exhibit to the initial Schedule 13D filed on July 18, 2001.

(2)

Filed as an exhibit to Amendment No. 1 to the Schedule 13D filed on July 9, 2003.

EX-4 3 dex4.htm STOCK PURCHASE AND EXCHANGE AGREEMENT Stock Purchase and Exchange Agreement

Exhibit 4

STOCK PURCHASE AND SALE AGREEMENT

THIS STOCK PURCHASE AND SALE AGREEMENT (this “Agreement”) entered into on, August 15, 2003 between Minorplanet Systems PLC, a United Kingdom public limited company (“MPUK” or “Seller”).), and The Erin Mills Investment Corporation, a Canadian corporation (“Erin Mills”).

RECITALS

A. WHEREAS, MPUK owns certain shares of common stock, par value $.01 per share (the “Common Stock”) of Minorplanet Systems USA, Inc., a Delaware corporation formerly known as @Track Communications, Inc. (“MPUSA”);

B. WHEREAS, in connection with, and as a condition to the closing of certain transactions contemplated by, that certain binding letter agreement]by and between MPUSA, MPUK and certain of their subsidiaries dated August 13, 2003 (the “Letter Agreement”), MPUK desires to sell and Erin Mills desires to purchase 20,378,517 shares of Common Stock (the “Shares” or “Securities”);

C. WHEREAS, contemporaneously with the closing under the Letter Agreement (the “Closing”), MPUK has agreed to sell to Erin Mills, and Erin Mills has agreed to purchase from MPUK the Shares for an aggregate purchase price of U.S.$1.00 (the “Purchase Price”).

AGREEMENT

In consideration of the premises and the mutual agreements and covenants herein contained, the parties hereby agree as follows:

1. At the Closing, MPUK shall sell to Erin Mills, and Erin Mills shall purchase from MPUK the Shares.

2. The consideration for the purchase and sale of the Shares shall be the Purchase Price. At the Closing the parties will evidence the payment of the Purchase Price by Erin Mills and the receipt of the Purchase Price by MPUK by a cross receipt.

3. MPUK hereby represents and warrants to Erin Mills as follows:

(a) MPUK has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement, when executed and delivered by MPUK will constitute a valid and legally binding obligation of MPUK, enforceable against it in accordance with its terms.

(b) MPUK owns the Shares free and clear of any liens, claims, or encumbrances other than those imposed by applicable securities laws.

(c) MPUK is the sole holder of record and beneficial owner of all 20,378,517 Shares. There are no outstanding warrants, options, rights of refusal or otherwise, agreements, calls or other commitments or similar agreements (in each case, to which MPUK is a party) relating to, providing for or prohibiting the sale, conveyance, transfer, gift, pledge, mortgage or other disposition or encumbrance or the granting or permitting any person, corporation, partnership, limited liability company, trust or other entity to acquire the Shares, or any part thereof, except as provided by this Agreement.

(d) MPUK has not granted any proxy with respect to the Shares, or entered into any voting agreement or other arrangement with respect to the Shares which restricts in any way MPUK’s voting of the Shares.

4. Erin Mills hereby represents and warrants to MPUK as follows:

(a) Erin Mills has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement, when executed and delivered by Erin Mills, will constitute a valid and legally binding obligation of Erin Mills, enforceable against it in accordance with its terms.

(b) Erin Mills understands that the transfer of Securities has not been registered under the Securities Act of 1933, as amended (the “Federal Act” or “Securities Act”) or any state’s securities laws by reason of the availability of the so-called Section 4(1^¹/2) hybrid exemption which depends in part upon the representations made by Erin Mills in this Agreement. Erin Mills understands that MPUK is relying upon Erin Mills’ representations and agreements contained in this Agreement (and any supplemental information furnished by Erin Mills, if any) for the purpose of determining whether this transaction meets the requirements for such exemption.

(c) Erin Mills has such knowledge, skill and experience in business, financial and investment matters so that Erin Mills is capable of evaluating the merits and risks of an investment in the Securities. To the extent that Erin Mills has deemed it appropriate to do so, Erin Mills has retained, and relied upon, appropriate professional advice regarding the tax, legal and financial merits and consequences of the investment in the Securities.

(d) Erin Mills has made, either alone or together with advisors (if any), such independent investigation of MPUSA, its management, and related matters as Erin Mills deems to be, or such advisors (if any) have advised to be, necessary or advisable in connection with an investment in the Securities; and Erin Mills and Erin Mills’ advisors (if any) have received all information and data which Erin Mills and such advisors (if any) believe to be necessary in order to reach an informed decision as to the advisability of an investment in the Securities.

(e) Erin Mills is an “accredited investor” within the meaning of Rule 501(a) of Regulation D promulgated under the Federal Act.

(f) Erin Mills represents that (i) it has adequate means of providing for Erin Mills’ financial needs and possible contingencies and has assets or sources of income which, taken together, are more than sufficient so that Erin Mills could bear the risk of loss of Erin Mills’ entire investment in the Securities, (ii) it has no present or contemplated future need to dispose of all or any portion of the Securities to satisfy any existing or contemplated undertaking, need or indebtedness, and (iii) it is capable of bearing the economic risk of an investment in the Securities for the indefinite future. Erin Mills agrees to furnish any additional information requested by MPUK to assure compliance of this transaction with applicable United Kingdom, Federal and state securities laws in connection with the purchase and sale of the Securities.

(g) Erin Mills understands that the Securities are “restricted securities” under applicable Federal securities laws and that the Federal Act and the rules of the Securities and Exchange Commission provide in substance that Erin Mills may dispose of the Securities only pursuant to an effective registration statement under the Federal Act or an exemption from such registration, if available. Erin Mills further understands that MPUK has no obligation or intention to cause to be registered on anyone’s behalf or to take action so as to permit sales pursuant to the Federal Act of the Securities. Accordingly, Erin Mills, absent some other arrangement with MPUSA, may dispose of the Securities only in certain transactions which are exempt from registration under the Federal Act, including “private placements,” in which event the transferee will acquire a “restricted security” subject to the same limitations as in the hands of Erin Mills. As a consequence, Erin Mills understands that Erin Mills must bear the economic risks of the investment in the Securities for an indefinite period of time.

(h) Erin Mills hereby confirms that Erin Mills is acquiring the Securities for investment only and not with a view to or in connection with any resale or distribution of the Securities. Erin Mills hereby affirms that Erin Mills has no present intention of making any sale, assignment, pledge, gift, transfer or other disposition of the Securities or any interest therein, except for sales or transfers to MPUSA as contemplated by the certain Stock Repurchase Option Agreement between Erin Mills and MPUSA, dated the date hereof.

(i) Erin Mills hereby confirms that its principal domicile is in Barbados.

(j) Erin Mills has read and fully reviewed the information regarding MPUSA set forth in MPUSA’s public disclosures and its filings made with the Securities and Exchange Commission.

(k) Erin Mills acknowledges and agrees that the certificate(s) evidencing the Securities bear a Securities Act restrictive legend.

5. Erin Mills, to the best of its knowledge, represents that neither MPUSA, MPUK nor any person acting on their behalf has offered or sold the Securities to Erin Mills by any form of general solicitation, general or public media advertising or mass mailing. The only condition to Erin Mills’ performance of its obligation hereunder shall be

that each of the representations and warranties of MPUK made herein shall have been true and correct in all material respects as of the date hereof (except for those which are qualified as to materiality which shall be true in all respects) and shall be true and correct in all material respects (except for those which are qualified as to materiality which shall be true in all respects) on and as of the date of Closing as though made on and as of the date of Closing;

6. The only condition to MPUK’s performance of its obligation hereunder shall be that each of the representations and warranties of Erin Mills made herein shall have been true and correct in all material respects as of the date hereof (except for those which are qualified as to materiality which shall be true in all respects) and shall be true and correct in all material respects (except for those which are qualified as to materiality which shall be true in all respects) on and as of the date of Closing as though made on and as of the date of Closing;

7. This Agreement may not be amended or modified except by an instrument in writing signed by a duly authorized officer of each of MPUSA and Erin Mills. Any agreement on the part of a party hereto to any waiver of any provision of this Agreement shall be valid and effective only if set forth in an instrument in writing signed on behalf of such party against whom enforcement of any waiver or consent is sought by such first party or a duly authorized officer thereof, if applicable. Any such waiver shall not be deemed a continuing waiver.

8. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed an original, and all of which when taken together shall be considered one and the same instrument, and this Agreement shall become effective when such counterparts have been signed by each of the parties hereto and delivered to the other parties. The parties hereto agree that signatures of the parties and their duly authorized officers may be exchanged by facsimile transmission, and that such signatures shall be binding to the same extent, and have the same force and effect, as the exchange of original written signatures. The originals of such signatures shall be sent to the other parties hereto by overnight courier.

9. Each of the parties hereto agrees that, at any time and from time to time after the date hereof, it shall, upon written request from the other party hereto, and without further consideration, perform such other and further acts, and execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such further instruments, documents and assurances as such other party reasonably may request for the purpose of carrying out this Agreement.

10. This Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matters hereof and thereof and supersedes any and all prior negotiations, agreements, arrangements and understandings between the parties, written or oral, relating to the matters provided for herein or therein.

11. This Agreement shall be null and void if the Closing does not occur for any reason whatsoever or upon the termination of the Letter Agreement (including but

not limited to if the closing under the Letter Agreement has not occurred by February 15, 2004) in accordance with its terms. After Closing, the representations and warranties contained herein shall survive for a period of one (1) year from the date of Closing.

12. This Agreement shall be governed by and construed under the laws of the State of Delaware (without regard to its conflicts of law rules).

[Remainder of this Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as a document under seal by their duly authorized officers as of the day and year first above written.

	MINORPLANET SYSTEMS PLC

Date: August 15, 2003	By:	/s/ Robert Kelly
		Robert Kelly
		Chief Executive Officer

	THE ERIN MILLS INVESTMENT CORPORATION

Date: August 15, 2003	By:	/s/ illegible signature
	Name:
	Title:

EX-5 4 dex5.htm BINDING LETTER AGREEMENT Binding Letter Agreement

Exhibit 5

Execution Copy

August 15, 2003

Mr. Robert Kelly

CONFIDENTIAL

Chief Executive Officer

Minorplanet Systems PLC

Greenwich House

Sheepscar, Leeds LS4 2LE

UNITED KINGDOM

Re: Binding Letter Agreement

Dear Mr. Kelly:

This binding Letter Agreement (this “Agreement”) sets forth the terms of certain agreements we have reached with each other regarding certain contemplated transactions involving Minorplanet Systems PLC, a United Kingdom public limited company (“MPUK”), and Minorplanet Systems USA, Inc., a Delaware corporation formerly known as @Track Communications, Inc. (“MPUSA”), as well as certain of their respective subsidiaries. More specifically, we have reached certain agreements relating to: (i) an amendment to the Exclusive License and Distribution Agreement dated June 13, 2001 entered into between Mislex (302) Limited, as licensee, now known as Minorplanet Systems USA Limited, a United Kingdom private limited company (“UK Sub 2”) which is the wholly-owned subsidiary of Caren (292) Limited, a United Kingdom private limited company which is the wholly-owned subsidiary of MPUSA (“UK Sub 1”), and UK Sub 1, as licensor, which assigned its rights as licensor to Minorplanet Limited (the “Licensor”), a United Kingdom private limited company which is a subsidiary of MPUK (the “License Agreement”); (ii) the waiver of certain rights held by MPUK under (A) that certain Stock Purchase and Exchange Agreement dated February 14, 2001 by and between MPUSA, MPUK and Mackay Shields, LLC, a Delaware limited liability company (the “Stock Purchase Agreement”), (B) an Addendum to the License Agreement dated September 26, 2002 (the “Addendum”) and (C) the Second Amended and Restated Bylaws of MPUSA (the “Bylaws”); (iii) an Anti-Dilution Agreement (as defined below); and (iv) certain other transactions described herein (collectively, the “Transactions”). In consideration of the mutual agreements and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:

1) Execution of Variation Agreement to License Agreement. Licensor and MPUSA agree to execute and deliver to the other party at the Closing (as defined in Section 3 hereof) the Variation Agreement to the License Agreement (the “License Amendment”), in the form attached hereto as Exhibit A.

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 2

2) Execution of Irrevocable Waiver. MPUK agrees to execute and deliver to MPUSA at the Closing (as defined in Section 3 hereof) the Irrevocable Waiver and Consent to Amendment of Bylaws (the “Irrevocable Waiver”), with respect to certain provisions of the Stock Purchase Agreement and the Bylaws and the waiver and discharge of the fees, expenses and charges owed under the Addendum in the approximate amount of $1,760,000, in the form attached hereto as Exhibit B.

3) The Closing. The closing of the Transactions (the “Closing”) shall occur at the offices of Locke Liddell & Sapp LLP, 2200 Ross Avenue, Suite 2200, Dallas, Texas 75201, as soon as practicable after each of the conditions to closing set forth in Sections 4 and 5 hereof are satisfied or waived (and in no event later than 10 days thereafter), or at such other place upon which MPUK and MPUSA may mutually agree in writing. This Agreement may be terminated at any time prior to the Closing: (a) by mutual written consent duly authorized by the boards of directors of each of MPUK and MPUSA; (b) by either MPUK, MPUSA or Licensor if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued a nonappealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the Transactions (provided that the party seeking to terminate pursuant to this Section 3(b) shall have complied with its obligations under this Agreement to use commercially reasonable efforts to have any such order, decree, ruling or other action vacated or lifted); (c) by either MPUK or MPUSA, if the requisite vote of the shareholders of the MPUK in favor of the Transactions shall not have been obtained at the meeting to be called pursuant to Section 9 hereof and applicable law, or if the United Kingdom Listing Authority (“UKLA”) shall have failed to approve the shareholders circular relating to said meeting; (d) by MPUK, if MPUSA shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would cause the conditions set forth in Section 5 to not be satisfied and which breach or failure, if capable of being cured, shall not have been cured within twenty (20) Business Days following receipt by MPUSA of written notice of such breach or failure from MPUK; (e) by MPUSA, if MPUK or Licensor shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would cause the conditions set forth in Section 4 to not be satisfied and which breach or failure, if capable of being cured, shall not have been cured within twenty (20) Business Days following receipt by MPUK or Licensor of written notice of such breach or failure from MPUSA; (f) by MPUSA, if any of the conditions to Closing set forth in Section 4 hereof have not been satisfied by February 15, 2004, or by (g) by MPUK or Licensor, if any of the conditions to Closing set forth in Section 5 hereof have not been satisfied by February 15, 2004. In the event of the termination of this Agreement pursuant to this Section 3, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto or any of its affiliates, directors, officers or the stockholders/shareholders except (i) that the provisions of Sections 8, 10, 11, 12, 13 and 16 hereof shall survive termination and (ii) nothing herein shall relieve any party from liability for any breach of this Agreement. Each of MPUSA and MPUK will use commercially reasonable efforts to comply promptly with all

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 3

legal requirements which may be imposed with respect to the Agreement and to satisfy or cause to have satisfied the conditions set forth in Sections 4 and 5, provided however, that notwithstanding anything to the contrary contained in this Agreement or any agreement or document contemplated hereby, the directors of any party shall not be obliged to act in any manner which, in the opinion of counsel, would be inconsistent with their fiduciary duties, and that MPUK, Licensor, and their respective affiliates, directors, officers and agents are not representing nor can they represent or guarantee that the MPUK Shareholder Consent (as defined below) will be obtained as such matters are outside of their control and each such person or entity shall have no liability to any other party if such approval is not obtained.

4) MPUSA Conditions to Closing. The performance of the obligations of MPUSA hereunder, including, without limitation, the obligation to execute and deliver the License Amendment, is subject to the fulfillment at or prior to the Closing of each of the following conditions (all or any of which conditions may be waived in whole or in part by MPUSA):

The License Amendment, in the form attached hereto as Exhibit A, shall have been duly executed by MPUK and delivered to MPUSA;

The Irrevocable Waiver, in the form attached hereto as Exhibit B, shall have been duly executed by MPUK and delivered to MPUSA;

That certain Stock Purchase Agreement by and between MPUK and Erin Mills Investment Corporation, a Canadian corporation (“Erin Mills”), in the form attached hereto as Exhibit C (the “Erin Mills Agreement”), whereby MPUK sells, transfers and assigns to Erin Mills 20,378,517 shares of common stock of MPUSA, par value $0.01 per share (the “Shares”), shall have been duly executed by both of the parties thereto.

The board of directors of each of MPUK and Licensor (as appropriate) shall have approved (i) the execution and delivery of this Agreement and all of the other agreements, documents, certificates and instruments contemplated hereby, including, without limitation, the License Amendment, the Irrevocable Waiver and the Erin Mills Agreement, and (ii) the consummation of the Transactions;

All governmental filings required to be made prior to the date of the Closing by MPUSA, MPUK and Licensor with, and all governmental, stock exchange and regulatory consents required to be obtained prior to the date of the Closing by MPUSA, MPUK and Licensor from, any governmental, stock exchange or regulatory authority in connection with the execution and delivery of this Agreement, License Amendment, the Irrevocable Waiver Agreement, the Erin Mills Agreement, and all other documents contemplated hereby and the consummation of the Transactions shall have been made or obtained, except where the failure to make such filings or obtain such governmental, stock exchange and regulatory consents would not have a material adverse effect on MPUSA, MPUK or

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 4

Licensor or affect either of their ability to consummate the Transactions contemplated by this Agreement and the agreements and documents contemplated hereby;

The shareholders of MPUK shall have approved the Erin Mills Agreement and the transactions contemplated thereby in accordance with the applicable rules of the UKLA (the “MPUK Shareholder Consent”);

There shall not be in effect any judgment, writ, injunction, order (including any temporary restraining order) or decree issued by a court or governmental authority of competent jurisdiction in an action or proceeding (collectively, an “Order”) restraining, enjoining, or otherwise preventing the consummation of the Transactions or permitting such consummation only subject to any condition or restriction unacceptable to MPUSA, MPUK or Licensor, each in its reasonable judgment, nor shall there be pending or threatened by any governmental authority any suit, action, or proceeding seeking to restrain or restrict the consummation of the Transactions or seeking damages in connection therewith, nor shall there be pending any cause of action or other proceeding commenced by a governmental authority of competent jurisdiction seeking the imposition of an Order;

The resignation of the following persons as directors of UK Sub 1: Robert Kelly and Andrew Tillman, shall have been effected, and each of such individuals shall have delivered to MPUSA a duly executed Form 288b and all other required regulatory filings necessary to effect such resignations;

The resignation of the following person as an officer of UK Sub 1: Robert Kelly (Secretary), shall have been effected, and each of such individuals shall have delivered to MPUSA a duly executed Form 288b and all other required regulatory filings necessary to effect such resignations;

The resignation of the following persons as directors of UK Sub 2: Robert Kelly and Andrew Tillman, shall have been effected, and each of such individuals shall have delivered to MPUSA a duly executed Form 288b and all other required regulatory filings necessary to effect such resignations;

The resignation of the following person as an officer of UK Sub 2: Robert Kelly (Secretary), shall have been effected, and each of such individuals shall have delivered to MPUSA a duly executed Form 288b and all other required regulatory filings necessary to effect such resignations;

Each of the representations and warranties of MPUK made herein shall have been true and correct in all material respects as of the date hereof (except for those which are qualified as to materiality which shall be true in all respects) and shall be true and correct

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 5

in all material respects (except for those which are qualified as to materiality which shall be true in all respects) on and as of the date of Closing as though made on and as of the date of Closing;

MPUK shall have performed and complied in all material respects with all terms, covenants, agreements, undertakings, acts, conditions and obligations required by this Agreement to be performed or complied with by MPUK prior to or at the Closing;

MPUSA shall also have received a certificate from Robert Kelly, the chief executive officer of MPUK, certifying that the representations and warranties of such party contained in this Agreement were true and correct in all material respects when made and are true and correct in all material respects (except for those which are qualified as to materiality which shall be true in all respects) on and as of the date of the Closing as though made on and as of the date of the Closing, and that MPUK has complied with or performed in all material respects (except for those which are qualified as to materiality which shall be true in all respects) all terms, covenants, agreements, undertakings, acts, conditions and obligations to be complied with or performed by it on or prior to the date of the Closing;

Buchanan Ingersoll Professional Corporation, U.S. securities counsel for MPUK, shall have executed and delivered to Erin Mills, MPUSA and its transfer agent a legal opinion, substantially in the form attached hereto as Exhibit D, opining that the transfer of the Shares by MPUK to Erin Mills per the Erin Mills Agreement is exempt from the registration requirements of the Securities Act of 1933, as amended, and any applicable Pennsylvania securities laws; and

Erin Mills shall have executed and delivered to MPUSA a stock option repurchase agreement, in a form to be reasonably agreed upon by Erin Mill and MPUSA, in which MPUSA shall receive an option to purchase 19,378,517 of the 20,378,517 Shares acquired by Erin Mills pursuant to the Erin Mills Agreement.

5) MPUK Conditions to Closing. The performance of the obligations of MPUK and Licensor (as applicable) hereunder, including, without limitation, the obligation to execute and deliver the License Amendment to MPUSA, is subject to the fulfillment at or prior to the Closing of each of the following conditions (all or any of which conditions may be waived in whole or in part by MPUK):

The License Amendment, in the form attached hereto as Exhibit A, shall have been duly executed by MPUSA and delivered to MPUK;

The Erin Mills Agreement, in the form attached hereto as Exhibit C, shall have been duly executed and delivered by Erin Mills.

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 6

The Anti-dilution Agreement, in the form attached hereto as Exhibit E (the Anti-Dilution Agreement”), shall have been duly executed by MPUSA and delivered to MPUK;

The MPUK Shareholder Consent shall have been obtained;

All governmental, stock exchange and regulatory filings required to be made prior to the date of the Closing by MPUSA, MPUK and Licensor with, and all governmental, stock exchange and regulatory consents required to be obtained prior to the date of the Closing by MPUSA, MPUK and Licensor from, any governmental, stock exchange or regulatory authority in connection with the execution and delivery of this Agreement, the License Amendment, the Irrevocable Waiver, the Erin Mills Agreement, and all other documents contemplated hereby and the consummation of the Transactions shall have been made or obtained, except where the failure to make such filings or obtain such governmental stock exchange and regulatory consents would not have a material adverse effect on MPUSA, MPUK or Licensor or affect either of their ability to consummate the Transactions contemplated by this Agreement and the agreements and documents contemplated hereby;

There shall not be in effect any Order restraining, enjoining, or otherwise preventing the consummation of the Transactions or permitting such consummation only subject to any condition or restriction unacceptable to MPUSA, MPUK or Licensor, each in its reasonable judgment, nor shall there be pending or threatened by any governmental authority any suit, action, or proceeding seeking to restrain or restrict the consummation of the Transactions or seeking damages in connection therewith, nor shall there be pending any cause of action or other proceeding commenced by a governmental authority of competent jurisdiction seeking the imposition of an Order;

Each of the representations and warranties of MPUSA made herein shall have been true and correct in all material respects (except for those that are qualified by materiality which shall be true and correct in all respects) as of the date hereof and shall be true and correct in all material respects (except for those that are qualified by materiality which shall be true and correct in all respects) on and as of the date of Closing as though made on and as of the date of Closing;

MPUSA shall have performed and complied in all material respects with all terms, covenants, agreements, undertakings, acts, conditions and obligations required by this Agreement to be performed or complied with by MPUSA prior to or at the Closing; and

MPUK shall also have received a certificate from an officer of MPUSA certifying that the representations and warranties of such party contained in this Agreement were true and correct in all material respects (except for those that are qualified by materiality which shall be true and correct in all respects) when made and are true and correct in all

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Chief Executive Officer

August 15, 2003

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material respects (except for those that are qualified by materiality which shall be true and correct in all respects) on and as of the date of the Closing as though made on and as of the date of the Closing, and that MPUSA has complied with or performed in all material respects all terms, covenants, agreements, undertakings, acts, conditions and obligations to be complied with or performed by it on or prior to the date of the Closing.

6) Representations and Warranties of MPUK. MPUK and the Licensor hereby jointly and severally represent and warrant to MPUSA as follows:

a) MPUK is a public limited company duly organized, validly existing and in good standing under the laws of the United Kingdom. Licensor is a private limited company, duly organized, validly existing and in good standing under the laws of the United Kingdom. The board of each of directors of MPUK and Licensor have duly approved and authorized this Agreement and all other agreements contemplated hereby, and the consummation of the Transactions. As of the date of the Closing, MPUK and Licensor shall have the requisite corporate power and authority to execute and deliver this Agreement and any other agreement or document executed or to be executed by MPUK or Licensor in connection herewith (including, without limitation, the License Amendment and the Irrevocable Waiver) and to perform and comply with all of the terms, covenants, and conditions to be performed and complied with by MPUK or Licensor hereunder or thereunder.

b) As of the date of the Closing, the execution, delivery, and performance by MPUK of this Agreement and all other agreements contemplated hereby, and the consummation of the Transactions, shall have been duly approved and authorized by the board of directors of MPUK and Licensor and the shareholders of MPUK, and all necessary corporate action on the part of MPUK shall have been taken and such authorization shall have not been withdrawn or amended in any manner. No other corporate action is necessary on the part of MPUK or Licensor for the authorization, execution, delivery, and performance by MPUK or Licensor of this Agreement or any other agreement or document executed or to be executed by MPUK or Licensor in connection herewith, or for the consummation by MPUK or Licensor of the Transactions. When duly authorized, executed and delivered by MPUSA, this Agreement and all such other documents or instruments contemplated hereby, including, without limitation, the License Amendment, shall constitute the valid and binding obligations of MPUK and Licensor (as applicable).

c) The execution, delivery and performance of this Agreement by MPUK and Licensor and each of the other documents and instruments required to be entered into pursuant to this Agreement by MPUK and Licensor (as applicable): (a) will not violate or conflict with any provision of the Memorandum of Association or Articles of Association of either MPUK or Licensor, each as amended then to date (b) will not conflict with or constitute a violation by MPUK or Licensor of any applicable law, judgment, order, injunction, decree, rule, regulation or ruling of any governmental authority or stock exchange applicable to MPUK or Licensor, the enforcement of which would have a material adverse effect on MPUK or Licensor or on

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Chief Executive Officer

August 15, 2003

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MPUK’s or Licensor’s (as applicable) ability to perform its obligations hereunder or the ability of MPUK or Licensor to consummate the Transactions, and (c) will not, either alone or with the giving of notice or the passage of time, or both, modify, violate, conflict with, constitute grounds for termination of, or accelerate the performance required by, or result in a breach or default of the terms, conditions or provisions of, or constitute a default under any contract, agreement, note, bond, mortgage, indenture, deed of trust, license, franchise, permit, commitment, waiver, exemption, order, obligation, lease, sublease, undertaking, agreement, offer or other instrument, which violation, conflict, termination, acceleration, breach or default would have a material adverse effect on MPUK or Licensor or on the ability of MPUK or Licensor to perform its obligations hereunder or the ability of MPUK or Licensor to consummate the Transactions.

d) Except for the MPUK Shareholder Approval and any filings required to be made by MPUK pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, no consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority is required by or with respect to MPUK in connection with the execution and delivery of this Agreement or any other agreement, document or instrument contemplated hereby or the consummation of the Transactions contemplated hereby.

7) Representations and Warranties of MPUSA. MPUSA hereby represents and warrants to MPUK and Licensor as follows:

a) MPUSA is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. As of the date of the Closing, MPUSA shall have the requisite corporate power and authority to execute and deliver this Agreement and any other agreement or document executed or to be executed by MPUSA in connection herewith (including, without limitation, the License Amendment and the Anti-Dilution Agreement) and to perform and comply with all of the terms, covenants, and conditions to be performed and complied with by MPUSA hereunder or thereunder.

b) The execution, delivery, and performance by MPUSA of this Agreement and all other agreements contemplated hereby, and the consummation of the Transactions, shall have been duly approved and authorized by the board of directors of MPUSA, and all necessary corporate action on the part of MPUSA shall have been taken and such authorization shall have not been withdrawn or amended in any manner. No other corporate action is necessary on the part of MPUSA for the authorization, execution, delivery, and performance by MPUSA of this Agreement or any other agreement or document executed or to be executed by MPUSA in connection herewith, or for the consummation by MPUSA of the Transactions. When duly authorized, executed and delivered by MPUK, this Agreement and all such other documents or instruments contemplated hereby, including, without limitation, the License Amendment, shall constitute the valid and binding obligations of MPUSA.

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Chief Executive Officer

August 15, 2003

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c) The execution, delivery and performance of this Agreement by MPUSA and each of the other documents and instruments required to be entered into pursuant to this Agreement by MPUSA: (a) will not violate or conflict with any provision of the Certificate of Incorporation or Bylaws of MPUSA, each as amended then to date (b) will not conflict with or constitute a violation by MPUSA of any applicable law, judgment, order, injunction, decree, rule, regulation or ruling of any governmental authority applicable to MPUSA the enforcement of which would have a material adverse effect on MPUSA or on MPUSA’s ability to perform its obligations hereunder or the ability of MPUSA to consummate the Transactions, and (c) will not, either alone or with the giving of notice or the passage of time, or both, modify, violate, conflict with, constitute grounds for termination of, or accelerate the performance required by, or result in a breach or default of the terms, conditions or provisions of, or constitute a default under any contract, agreement, note, bond, mortgage, indenture, deed of trust, license, franchise, permit, commitment, waiver, exemption, order, obligation, lease, sublease, undertaking, agreement, offer or other instrument, which violation, conflict, termination, acceleration, breach or default would have a material adverse effect on MPUSA or on the ability of MPUSA to perform its obligations hereunder or the ability of MPUSA to consummate the Transactions.

8) Confidentiality. All non-public information and documents relating to MPUK or MPUSA or any of their respective affiliates or subsidiaries obtained by the other party or its agents or representatives prior to or after the date of this Agreement will be treated confidentially by MPUK and MPUSA and their respective affiliated companies, agents and consultants and not disclosed by MPUK or MPUSA or their respective affiliated companies, agents and consultants to third-parties except as required by law or in connection with obtaining necessary approvals of the Transactions, and will in no event be used by either of the parties or their respective affiliated companies, agents or consultants for any purpose unrelated to the consummation of the Transactions.

9) Other Covenants of MPUK. MPUK hereby covenants and agrees that from the date of execution of this Agreement until the Closing to do the following:

a) MPUK hereby covenants and agrees that it shall, as promptly as reasonably practicable, take all action necessary in accordance with applicable law to convene a meeting of its shareholders (including, without limitation, obtaining UKLA approval of the shareholders circular) and shall use commercially reasonable efforts to hold such meeting as promptly as reasonably practicable after the date hereof in accordance with applicable law. The purpose of such meeting shall be, among other things, to consider and vote upon the approval of the transactions contemplated by this Agreement as may be required by applicable law. The board of directors of MPUK shall recommend such approval and MPUK shall take all lawful action to solicit and obtain such approval. In this regard, MPUSA agrees to use commercially reasonable efforts to provide such assistance and information as may reasonably be requested by MPUK in order to obtain approval by the UKLA of the shareholders circular; provided however, that if MPUSA incurs any expenses, fees, costs or other liabilities from a third party in connection with

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Chief Executive Officer

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its provision of such assistance or information (including, without limitation, fees and expenses of auditors and/or other professionals), then MPUK agrees to promptly reimburse MPUSA for the full amount of such expenses, fees, costs and other expenses.

b) Notwithstanding any other provision in this Agreement, MPUK agrees that from and after the execution hereof and through the earlier of the Closing or the termination of this Agreement, it shall not sell, transfer, dispose of, or otherwise convey to any Person any of the Shares intended to be transferred pursuant to the Erin Mills Agreement.

10) Publicity. MPUK and MPUSA agree that prior to the making of any public announcement with respect to this Agreement or any other matter relating to any of the Transactions, each of MPUK and MPUSA will consult with the other and shall either agree upon the text of a joint announcement or obtain the other’s prior, written approval of an announcement to be made solely on behalf of such party. Each party agrees that it shall not reveal nor disclose to the public or to any third party the existence of, or any provisions contained in, this Agreement, or negotiations relating to the Transactions, other than with the express prior written consent of the other party. Notwithstanding anything to the contrary set forth in this Agreement, either party may make such disclosures or statements as it determines may be required by law, regulation or rule of any bona fide governmental authority, stock exchange or similar regulatory authority including, without limitation, the federal or state securities laws, the rules and regulations of the U.S. Securities and Exchange Commission (including but not limited to the filing of any Schedule 13D or Schedule 13G and Section 16(a) reports by MPUK), Nasdaq, the United Kingdom Listing Authority, the London Stock Exchange or as required by other material agreements to which such party is bound.

11) Expenses. Each of MPUK and MPUSA shall be responsible for paying its own expenses in connection with the negotiation and execution of this Agreement and all the agreements, documents, certificates and instruments contemplated hereby, and the consummation of the Transactions.

12) Governing Law. This Agreement shall be governed by the substantive laws of the United States of America and the State of Delaware (without regard to principles of conflicts of laws), and will, to the maximum extent practicable, be deemed to call for performance in the State of Delaware. The courts within Wilmington, Delaware will have jurisdiction over any and all disputes between the parties hereto, whether arising in law or at equity, arising out of or relating to this Agreement.

13) CONSENT TO JURISDICTION. EACH OF THE PARTIES AGREES TO SUBMIT ITSELF TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN WILMINGTON, DELAWARE. IN ADDITION, EACH OF THE PARTIES HERETO AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH

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Chief Executive Officer

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COURT, AND THAT IT WILL NOT BRING ANY ACTION RELATING TO THIS AGREEMENT, THE LICENSE AMENDMENT, THE ANTI-DILUTION AGREEMENT, THE IRREVOCABLE WAIVER OR ANY OF THE TRANSACTIONS IN ANY COURT OTHER THAN SUCH COURT.

14) [Intentionally Left Blank].

15) ASP Services. In the event that MPUK requires use of a network services center to host the VMI software application so that its customers can access their customer data via the Internet (“ASP Services”), MPUK and MPUSA shall negotiate in good faith (for a period of thirty (30) days) to consummate a reseller agreement on commercially arm’s length terms for the purchase of such ASP services from MPUSA for resale to such customers prior to attempting to purchase such ASP Services from a third party.

16) Miscellaneous Provisions.

a) Further Assurances. Each of the parties hereto agrees that, at any time and from time to time after the date hereof, it shall, upon written request from the other party hereto, and without further consideration, perform such other and further acts, and execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such further instruments, documents and assurances as such other party reasonably may request for the purpose of carrying out this Agreement.

b) Entire Agreement. This Agreement, the Exhibits hereto and any other written agreements by the parties hereto that are expressly contemplated hereby to be entered into, constitutes the entire agreement and understanding of the parties hereto with respect to the subject matters hereof and thereof and supersedes any and all prior negotiations, agreements, arrangements and understandings between the parties, written or oral, relating to the matters provided for herein or therein.

c) Amendment; Modification. This Agreement may not be amended or modified except by an instrument in writing signed by a duly authorized officer of each of MPUSA, Licensor and MPUK.

d) Waivers. Any agreement on the part of a party hereto to any waiver of any provision of this Agreement shall be valid and effective only if set forth in an instrument in writing signed on behalf of such party against whom enforcement of any waiver or consent is sought by such first party or a duly authorized officer thereof, if applicable. Any such waiver shall not be deemed a continuing waiver.

e) Section Headings; Interpretation. Reference in this Agreement to a Section, unless otherwise indicated, shall constitute references to a Section of this Agreement. The section

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Chief Executive Officer

August 15, 2003

Page 12

headings contained in this Agreement are for convenience of reference only and do not form a part hereof and shall not affect in any way the meaning or interpretation of this Agreement. The parties hereto agree that this Agreement is the product of negotiations among sophisticated parties, all of whom were represented by counsel, and each of whom had an opportunity to participate in, and did participate in the drafting of each provision hereto. Accordingly, ambiguities in this Agreement, if any, shall not be construed strictly against any party hereto but rather shall be given a fair and reasonable construction without regard to the rule of contra proferentem.

f) Binding Agreement; Assignment. This Agreement is binding upon, will inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties hereto, without the prior written consent of the other party hereto.

g) Notices. Any notices, consents or other communications required or permitted to be given under the provisions of this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by the following sole means of delivery, and shall be deemed to have been duly delivered and received on the next date (or the next Business Day if delivery is not made on a Business Day) of a sent receipt, if sent by an overnight delivery service, and sent to the address set forth above if to MPUK; Attention Robert Kelly, or to 1155 Kas Drive, Suite 100, Richardson, Texas 75081; Attention J. Raymond Bilbao if to MPUSA, with a copy (which shall not constitute notice) to Locke Liddell & Sapp LLP, Attention: Stephen L. Sapp, Esq., 2200 Ross Avenue, Suite 2200, Dallas, Texas 75201 (or to such other address as any party may request by providing notice of such change as provided above in this Section).

(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed an original, and all of which when taken together shall be considered one and the same instrument, and this Agreement shall become effective when such counterparts have been signed by each of the parties hereto and delivered to the other parties. The parties hereto agree that signatures of the parties and their duly authorized officers may be exchanged by facsimile transmission, and that such signatures shall be binding to the same extent, and have the same force and effect, as the exchange of original written signatures. The originals of such signatures shall be sent to the other parties hereto by overnight courier.

[Remainder of Page Intentionally Left Blank]

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 13

If the foregoing sets forth our mutual agreement concerning these matters, please so indicate by signing below in the space provided and returning the extra copy of this Agreement to the undersigned. Your signature shall complete this Agreement and make it a binding agreement between the parties.

Very truly yours,

MINORPLANET SYSTEMS USA, INC.

By:		/s/ W. Michael Smith
		W. Michael Smith Chief Operating Officer

Mr. Robert Kelly

Chief Executive Officer

August 15, 2003

Page 14

ACCEPTED AND AGREED TO:

MINORPLANET SYSTEMS PLC


By:		/s/ Robert Kelly
		Robert Kelly Chief Executive Officer

Date:		15 August 2003

LICENSOR

MINORPLANET LIMITED


By:		/s/ KS Mullen
Name:		KS Mullen
Title:		Secretary

Date:		15 August 2003

EX-6 5 dex6.htm FORM OF IRREVOCABLE WAIVER AND CONSENT TO AMENDMENT OF BYLAWS Form of Irrevocable Waiver and Consent to Amendment of Bylaws

Exhibit 6

IRREVOCABLE WAIVER

AND CONSENT TO AMENDMENT OF BYLAWS

THIS IRREVOCABLE WAIVER AND CONSENT TO AMENDMENT OF BYLAWS (this “Waiver”) is executed by Minorplanet Systems PLC, a United Kingdom public limited company (“MPUK”), to be effective as of August , 2003.

WHEREAS, Minorplanet Systems USA, Inc., a Delaware corporation formerly known as @Track Communications, Inc. (“MPUSA”), MPUK and Mackay Shields, LLC, a Delaware limited liability company, entered into that certain Stock Purchase and Exchange Agreement dated as of February 14, 2001 (the “Purchase Agreement”), and pursuant thereto, MPUK, among others, purchased shares of MPUSA’s common stock, par value $0.01 per share;

WHEREAS, MPUK has elected to not appoint any Investor Directors (as such term is defined in MPUSA’s Second Amended and Restated Bylaws (the “Bylaws”));

WHEREAS, the following parties entered into that certain Exclusive License and Distribution Agreement (the “License Agreement”) dated June 13, 2001 Mislex (302) Limited, as licensee, now known as Minorplanet Systems USA Limited, a United Kingdom private limited company which is the wholly-owned subsidiary of Caren (292) Limited, a United Kingdom private limited company which, in turn, is the wholly-owned subsidiary of MPUSA, and Caren (292) Limited, as licensor, which assigned its rights as licensor to Minorplanet Limited, a United Kingdom private limited company which is a subsidiary of MPUK, and such parties subsequently entered into that certain Addendum to the License Agreement dated September 26, 2002, which provided for the payment of certain fees, expenses and charges (the “Addendum”); and

WHEREAS, in connection with, and as a condition to the closing of certain transactions contemplated by, that certain binding Letter Agreement by and between MPUSA and MPUK dated August , 2003 (the “Letter Agreement”), MPUK desires to waive any requirement of MPUSA to comply, after the date hereof, with certain provisions of the Purchase Agreement, the Bylaws and the Addendum as set forth below and release MPUSA from any liability in connection with any future violations of such provisions.

In consideration of the premises and the mutual agreements herein set forth and the entering into of the Letter Agreement and the consummation of the transactions contemplated thereby, MPUK hereby agrees as follows:

1. MPUK hereby irrevocably and forever waives the performance and discharge of any and all obligations and restrictions that have been or may be imposed on MPUSA pursuant to Sections 6.01, 6.02, 6.03, 6.04, 7.09, 7.16, 7.17 and 7.27 of the Purchase Agreement after the date hereof. Notwithstanding anything to the contrary in Section 11.06 or any other provision of the Purchase Agreement, this waiver is a continuing and irrevocable waiver by MPUK.

2. MPUK hereby irrevocably and forever waives the performance and discharge of any and all obligations and restrictions that may have been or may be imposed on MPUSA pursuant to Article XI of MPUSA’s Bylaws (including, without limitation, the right to elect or

designate directors pursuant to such provisions) after the date hereof, and MPUK hereby irrevocably consents to, approves and authorizes MPUSA to amend the Bylaws to forever remove Article XI from such Bylaws. Notwithstanding anything in the Bylaws to the contrary, the waiver granted hereby is a continuing and irrevocable waiver of MPUK.

3. MPUK hereby irrevocably and forever waives the performance and discharge by MPUSA and any of its affiliates and subsidiaries of any and all obligations and liabilities for any and all fees, expenses and charges for “Executive Sales/Marketing Consulting Services,” including without limitation, compliance by MPUSA with Sections 3 and 5 of the Addendum prior to or after the date hereof. For purposes of reference, a copy of the Addendum is attached hereto as Exhibit A. Notwithstanding anything to the contrary contained in the Addendum or the License Agreement, this waiver is a continuing and irrevocable waiver by MPUK.

4. MPUK, for itself, its affiliates, its successors and assigns, and on behalf of each of the foregoing, does now RELEASE, ACQUIT and FOREVER DISCHARGE MPUSA, its employees, shareholders, directors, subsidiaries, affiliates and officers, and their respective successors and assigns, of and from any and all claims, demands, actions, judgements and executions which MPUK or its affiliates or subsidiaries (including, without limitation, the parties to the License Agreement and Addendum), or their respective successors and assigns may have or claim to have, against MPUSA, its employees, shareholders, directors subsidiaries, affiliates and officers, and their respective successors and assigns, in any capacity, arising out of or in any way connected with MPUSA’s compliance or noncompliance with the provisions of Sections 6.01, 6.02, 6.03, 6.04, 7.09, 7.16, 7.17 and 7.27 of the Purchase Agreement, Article XI of the Bylaws or Sections 3 and 5 of the Addendum (including, without limitation, any obligation to make any payment for “Executive Sales/Marketing Consulting Services”) after the date hereof.

5. MPUK agrees that, except as expressly modified by this Waiver, the Purchase Agreement (as well as the Bylaws, Addendum and License Agreement, as applicable) shall remain in full force and effect as modified by this Waiver. Except as provided herein, this Waiver shall not be a waiver of any other section or provision of the Purchase Agreement (nor the Bylaws, the Addendum or License Agreement, as applicable). This Waiver shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to that body of law pertaining to choice of law or conflict of law.

6. MPUK agrees that its signature and that of its duly authorized officers may be exchanged by facsimile transmission, and that such signature shall be binding to the same extent, and have the same force and effect, as the exchange of an original written signature. The originals of such signature shall be sent to the other parties hereto by overnight courier.

(Signature Page Follows)

EXECUTED effective as of the date first set forth above.

MINORPLANET SYSTEMS, PLC

By:
Name:
Title:

STATE OF

COUNTY OF

Personally appeared before me, a notary public in and for the jurisdiction aforesaid, , the of Minorplanet Systems, PLC, a United Kingdom public limited company, who acknowledged that he executed the above and foregoing Irrevocable Waiver and Consent to Amendment of Bylaws in his capacity as of Minorplanet Systems, PLC, and as the act of the company.

This the day of , 2003.

NOTARY PUBLIC

My Commission Expires:

EX-7 6 dex7.htm FORM OF ANTI-DILUTION AGREEMENT Form of Anti-Dilution Agreement

Exhibit 7

ANTI-DILUTION AGREEMENT

THIS ANTI-DILUTION AGREEMENT (the “Agreement”) is dated as of August , 2003 and is by and among MINORPLANET SYSTEMS USA, INC., a Delaware corporation (the “Company” or “MPUSA”), MINORPLANET SYSTEMS PLC, a United Kingdom public limited company (“MPS UK”).

WHEREAS, MPS UK and the Company are both parties to that certain Letter Agreement, dated August , 2003, which contemplates the execution and delivery of this Agreement by the parties hereto.

NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged (including, without limitation, the entering into the Letter Agreement and that certain Variation Agreement to the Exclusive License and Distribution Agreement, dated , 2003, by and between Minorplanet Limited and Minorplanet Systems USA Limited (each of which are subsidiaries of MPS UK and the Company, respectively)), the parties hereto hereby agree as follows:

SECTION 1. Additional Issuances.

(a) At any time after the date hereof, if the Company shall issue or propose to issue any additional shares of the Company’s common stock, par value, $0.01 per share (“Common Stock”), or warrants, options (excluding any options granted to employees of the Company in accordance with any employee plans, now or hereinafter in effect) or other rights or instruments of any kind convertible into or exercisable or exchangeable for shares of Common Stock (the “Additional Securities”), MPS UK shall have the right to subscribe for and to purchase at the same price per share that number of Additional Securities necessary to maintain a Fully-Diluted Ownership Percentage (as defined herein below) in the Company equal to the lesser of: (i) Fully-Diluted Ownership Percentage of the Company on the date that a Subscription Notice (as defined below) is delivered to MPS UK hereunder, and (ii) of 19.9% of the Company’s issued and outstanding Common Stock. Any offer of Additional Securities made to MPS UK under this Section 1 shall be made by notice in writing (the “Subscription Notice”) at least 20 Business Days prior to the issuance of such Additional Securities. The Subscription Notice shall set forth (i) the number of Additional Securities proposed to be issued to any Person other than MPS UK and the terms of such Additional Securities, (ii) the consideration (or manner of determining the consideration), if any, for which such Additional Securities are proposed to be issued and the terms of payment, (iii) the number of Additional Securities offered to MPS UK in compliance with the provisions of this Section 1 and (iv) the proposed date of issuance of such Additional Securities. Not later than 5 Business Days after delivery of a Subscription Notice in accordance with the notice provisions hereof, MPS UK shall deliver a notification to the Company in writing whether it elects to purchase all or any portion of the Additional Securities offered to MPS UK, pursuant to the Subscription Notice; provided however, that the failure of MPS UK to respond in writing within 5 Business Days shall be deemed a waiver and negative

election by MPS UK to purchase any of the Additional Securities offered by such Subscription Notice. If MPS UK elects to purchase any such Additional Securities, the Additional Securities that it shall have elected to purchase shall be issued and sold to MPS UK by the Company at the same time and on the same terms and conditions as the Additional Securities are issued and sold to third parties. If, for any reason, the issuance of Additional Securities to third parties is not consummated, MPS UK’s right to its share of such issuance shall lapse, subject to MPS UK’s ongoing subscription right with respect to issuances of Additional Securities at later dates or times.

(b) The Company represents and covenants to MPS UK that (i) upon issuance, all the shares of Additional Securities sold to MPS UK pursuant to this Section 1 shall be duly authorized, validly issued, fully paid and nonassessable and will be approved (if outstanding securities of the Company of the same type are at the time already approved) for listing on the Nasdaq Stock Market or for quotation or listing on the principal trading market for the securities of the Company at the time of issuance, (ii) upon delivery of such shares, they shall be free and clear of all liens, claims and encumbrances (other than any restrictions imposed by applicable federal, state and foreign securities laws (including, without limitations, the laws of the United Kingdom) of any nature and shall not be subject to any preemptive right of any stockholder of the Company and (iii) this Section 1 does not and upon the issuance of such Additional Securities will not (a) violate or conflict with any provision of the Certificate of Incorporation or Bylaws of MPUSA, each as amended then to date (b) conflict with or constitute a violation by MPUSA of any applicable law (including the General Corporation Law of Delaware), judgment, order, injunction, decree, rule, regulation or ruling of any governmental authority applicable to MPUSA the enforcement of which would have a material adverse effect on MPUSA or on MPUSA’s ability to perform its obligations hereunder or the ability of MPUSA to consummate issuance of the Additional Securities and (c) either alone or with the giving of notice or the passage of time, or both, modify, violate, conflict with, constitute grounds for termination of, or accelerate the performance required by, or result in a breach or default of the terms, conditions or provisions of, or constitute a default under any contract, agreement, note bond, mortgage, indenture, deed of trust, license, franchise, permit, commitment, waiver, exemption, order, obligation, lease, sublease, undertaking, agreement, offer or other instrument, which violation, conflict, termination, acceleration, breach or default would have a material adverse effect on MPUSA or on the ability of MPUSA to perform its obligations hereunder or the ability of MPUSA to issue such shares.

(c) As used herein, the term “Business Day” shall mean any day other than a Saturday, Sunday, U.S. national legal holiday, or a legal holiday under the laws of the State of Delaware or the United Kingdom, and the term “Person” shall mean an individual, corporation, partnership, joint venture, joint stock company, association, trust, business trust, unincorporated organization, government authority, or any other entity of whatever nature. As used herein, the term “Fully-Diluted Ownership Percentage” shall mean the percentage ownership calculated by dividing (i) the aggregate number of shares of Common Stock (including any shares of Common Stock issuable upon exercise or conversion of options, warrants or other securities or rights) beneficially owned (as such term is determined in accordance with the Rule 13d-3 promulgated under the Securities

Exchange Act of 1934, as amended) by the applicable Person or Persons, howsoever and whenever acquired, by (ii) the aggregate number of all issued and outstanding shares of Common Stock of the Company (including any shares of Common Stock which are issuable upon exercise or conversion of options, warrants or other securities or rights within 60 days of the date on which such calculation is being made).

(d) Notwithstanding anything to the contrary contained herein, the rights granted to MPS UK hereunder shall not apply to that certain stock option repurchase agreement by and between the Company and Erin Mills Investment Corporation, dated August , 2003, and the Company may enter into, execute and deliver said agreement and consummate the transactions thereby without delivering any Subscription Notice or other notice to MPS UK.

(e) If the Company, at any time while this Agreement is in force and effect, by reclassification of securities or otherwise (including, but not limited to, a “reincorporation,” merger with or into a wholly owned subsidiary of the Company, an exchange or stock swap or another type of reorganization or recapitalization), shall change or exchange its Common Stock into (or for) different securities of another class or classes or ceases to have common stock, then MPS UK’s rights hereunder shall thereafter represent the right to acquire such number and kind of securities as would have been issuable as the result of such change with respect to the securities that were subject to the Agreement immediately prior to such reclassification or other change. All such adjustments shall be made so as to equitably adjust MPS UK’s rights hereunder.

SECTION 2. Further Assurances. Each of the parties hereto agrees that, at any time and from time to time after the date hereof, it shall, upon written request from the other party hereto, and without further consideration, perform such other and further acts, and execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such further instruments, documents and assurances as such other party reasonably may request for the purpose of carrying out this Agreement.

SECTION 3. Binding Agreement; Assignment. This Agreement is binding upon, will inure to the benefit of, and be enforceable by, the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties hereto, without the prior written consent of the other party hereto.

SECTION 4. Entire Agreement; No Third-Party Beneficiaries. This Agreement constitutes the entire agreement and understanding of the parties hereto with respect to the subject matters hereof and thereof and supersedes any and all prior negotiations, agreements, arrangements and understandings between the parties, written or oral, relating to the matters provided for herein or therein. Except as expressly provided in this Agreement, nothing contained in this Agreement, express or implied, is intended to or shall confer on any Person other than the parties hereto and their heirs, successors and permitted assigns, any rights, benefits, remedies or claims under or by reason of this Agreement.

SECTION 5. Amendment; Modification. This Agreement may not be amended or modified except by an instrument in writing signed by a duly authorized officer of each of the Company and MPS UK.

SECTION 6. Extensions; Waivers; Remedies Cumulative.

(a) The conditions to each of the parties’ obligations to consummate this Agreement are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law. With regard to this Agreement, any party may (i) extend the time for the performance of any of the obligations or other acts of any other party with such first party, or (ii) waive compliance with any of the agreements of any party with such first party or with any conditions to its own obligations. Any agreement on the part of a party hereto to any such extension or waiver of any provision of this Agreement shall be valid and effective only if set forth in an instrument in writing signed on behalf of such party against whom enforcement of any waiver or consent is sought by such first party or a duly authorized officer thereof, if applicable.

(b) No failure or delay on the part of any party in exercising any right, privilege, power, or remedy under this Agreement, and no course of dealing among the parties, shall operate as a waiver of such right, privilege, power, or remedy, nor shall any single or partial exercise of any right, privilege, power, or remedy under this Agreement preclude any other or further exercise of such right, privilege, power, or remedy, or the exercise of any other right, privilege, power, or remedy. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in any similar or other circumstances or constitute a waiver of the right of the party giving such notice or making such demand to take any other or further action in any circumstances without notice or demand.

SECTION 7. Section Headings; Interpretation. Reference in this Agreement to a Section unless otherwise indicated, shall constitute references to a Section or an Article of this Agreement. The section headings contained in this Agreement are for convenience of reference only and do not form a part thereof and shall not affect in any way the meaning or interpretation of this Agreement. The parties hereto agree that this Agreement is the product of negotiations among sophisticated parties, all of whom were represented by counsel, and each of whom had an opportunity to participate in, and did participate in the drafting of each provision hereto. Accordingly, ambiguities in this Agreement, if any, shall not be construed strictly against any party hereto but rather shall be given a fair and reasonable construction without regard to the rule of contra proferentem.

SECTION 8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of Delaware without giving effect to the laws that might otherwise govern under applicable principles of conflict of laws thereof.

SECTION 9. Notices. Any notice, demand, claim, request, waiver or consent or other communication required or permitted to be given under the provisions of this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by any of the following means of delivery, and shall be deemed to have been duly delivered and received on the date (or the next Business Day if delivery is not made on a Business Day) of personal delivery or facsimile transmission or on the date (or the next Business Day if delivery is not made on a Business Day) of receipt, if mailed by registered or certified mail, postage prepaid and return receipt requested, or on the date (or the next Business Day if delivery is not made on a Business Day) of a stamped receipt, if sent by an overnight delivery service, and sent to the following addresses (or to such other address as any party may request, in the case of the Company, by notifying MPS UK, and in the case of MPS UK, by notifying the Company in each case in accordance with this Section):

(a)

If to the Company:

Minorplanet Systems USA, Inc.

1155 Kas Drive

Suite 100

Richardson, TX 75081

Attn: J. Raymond Bilbao

Telephone: (972) 301-2733

Facsimile: (972) 301-2263

with a copy to:

Locke Liddell & Sapp LLP

2200 Ross Avenue

Suite 2200

Dallas, TX 75201

Attn: Stephen L. Sapp

Telephone: (214) 740-8570

Facsimile: (214) 740-8800

(b)

If to MPS UK:

Minorplanet Systems PLC

Greenwich House

Sheepscar, Leeds LS4 2LE

United Kingdom

Attn: Robert Kelly

Telephone: 011 44 113 251 1600

Facsimile: 011 44 113 251 1672

with a copy to:

Buchanan Ingersoll Professional Corporation

One Oxford Centre

301 Grant Street, 20^th Floor

Pittsburgh, PA 15219

Telephone: (412) 562-8811

Facsimile: (412) 562-1041

SECTION 10. Consent to Jurisdiction. Each of the parties agrees to submit itself to the jurisdiction of any state or federal court sitting in the State of Delaware. In addition, each of the parties hereto agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than such court.

SECTION 11. Severability. The parties agree that (i) the provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, (ii) they shall negotiate in good faith to replace any provisions that are finally determined to be invalid, void or otherwise unenforceable with other provisions that are as similar as possible in terms to such invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (iii) the balance of this Agreement shall not be affected and shall remain enforceable to the fullest extent permitted by law. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and shall be enforced to the fullest extent permitted by law.

SECTION 12. Counterparts. This Agreement may be executed in one or more counterparts, each of which when executed and delivered shall be deemed an original, and all of which when taken together shall be considered one and the same instrument, and this Agreement shall become effective when such counterparts have been signed by each of the parties hereto and delivered to the other parties. The parties hereto agree that signatures of the parties and their duly authorized officers may be exchanged by facsimile transmission, and that such signatures shall be binding to the same extent, and have the same force and effect, as the exchange of original written signatures. The originals of such signatures shall be sent to the other parties hereto by overnight courier.

(Signature Page Follows)

This Agreement has been duly executed by an authorized officer by each of the following parties as of the date first set forth above.

MINORPLANET SYSTEMS USA, INC.

By:

		Name:
		Title:

MINORPLANET SYSTEMS PLC

By:

		Name:
		Title:

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