REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 9, 1997
AMONG
HOSPITALITY WORLDWIDE SERVICES, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
REGISTRATION RIGHTS AGREEMENT, dated as of January 9, 1997, by
and among Hospitality Worldwide Services, Inc., a New York corporation (the
"Company"), and Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxx Xxxxxx and Xxxxxxxx Xxxxxx (individually, a "Stockholder" and
collectively, the "Stockholders"). This Agreement is made pursuant to that
certain Agreement and Plan of Merger dated as of January 9, 1997, by and among
The Xxxxxxx Xxxxxx Company, a Florida corporation, the Stockholders, the Company
and LPC Acquisition Corp., a Florida corporation, (the "Merger Agreement").
Capitalized terms used herein without definition shall have the meanings set
forth in the Merger Agreement.
The parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms
shall have the following meanings:
"COMMISSION" shall mean the Securities and Exchange
Commission.
"COMMON STOCK" means the common stock, par value $.01 per
share, of the Company.
"DEMAND REGISTRATION" shall have the meaning assigned to such
term in Section 3 hereof.
"HOLDER" shall mean a Stockholder, or his transferee, who is
the owner of Registrable Securities.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments to the
Registration Statement of which such Prospectus is a part, and all material
incorporated by reference in such Prospectus.
"REGISTRABLE SECURITIES" shall mean the Securities, but only
so long as they remain Restricted Securities.
"REGISTRATION STATEMENT" means any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits, and all material incorporated by reference in such Registration
Statement.
"RESTRICTED SECURITIES" means the Registrable Securities
unless and until, in the case of any such Securities, (i) they have been
effectively registered under the Securities Act and disposed of in accordance
with the Registration Statement covering them, (ii) they are distributed to the
public pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act, or (iii) they are otherwise freely transferable without volume
or other restriction under the Securities Act, and the Stockholders have
received an opinion of their legal counsel to such effect.
"SECURITIES" shall mean the shares of Common Stock issued to
the Stockholders pursuant to the Merger Agreement or issued upon the conversion
of the Preferred Stock or other Restricted Securities acquired by the Holders
from time to time.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
2. SECURITIES SUBJECT TO THIS AGREEMENT. The Securities
entitled to the benefits of this Agreement are the Registrable Securities.
3.1 SHELF REGISTRATION. The Company shall prepare and no later
than five (5) months from the date hereof file with the Commission a
Registration Statement on Form S-3 with respect to the resale of the Registrable
Securities and use its best efforts to cause such Registration Statement to
become effective no later than six (6) months from the date hereof, and keep
such Registration Statement effective for a period of 18 months.
3.2 PIGGYBACK REGISTRATION. (a) At any time during the five
year period commencing on the date of this Agreement, each time the Company
proposes to file on its behalf and/or on behalf of any of its security holders a
Registration Statement under the Securities Act on any form (other than a
Registration Statement on Form S-4 or S-8 or any successor form for securities
to be offered in a transaction of the type referred to in Rule 145 under the
Securities Act or to an employee of the Company pursuant to any employee benefit
plan, respectively) for the general registration of securities to be sold for
cash with respect to its Common Stock, it will give written notice to each of
the Holders at least 30 days before the initial filing with the Commission of
such Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered by the Company. The
notice shall offer to include in such filing all Registrable Securities as each
Holder may request.
(b) If a Holder desires to have Registrable Securities
registered under this Section 3.2, he shall advise the Company in writing within
15 days after the date of receipt of such offer from the Company, setting forth
the amount of such Registrable Securities for which registration is requested.
The Company shall thereupon include in such filing the number of shares of
Registrable Securities for which registration is so requested,
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subject to the following. In the event that the proposed registration by the
Company is, in whole or in part, an underwritten public offering of securities
of the Company, the Company shall not be required to include any of the
Registrable Securities in such underwriting unless the Holder agrees to accept
the offering on the same terms and conditions as the shares of Common Stock, if
any, otherwise being sold through underwriters under such registration;
provided, however, that: (i) if the managing underwriter determines and advises
the Company in writing that the inclusion of all Registrable Securities proposed
to be included by the Holders in the underwritten public offering would
jeopardize the success of the Company's offering, then the Company shall be
required to include in the offering (in addition to the number of shares to be
sold by the Company) only that number of Registrable Securities that the
managing underwriter believes will not jeopardize the success of the Company's
offering and the number of Registrable Securities not included in such
underwritten public offering shall be reduced pro rata based upon the number of
shares of Registrable Securities requested by the holders thereof to be
registered in such underwritten public offering; and (ii) in each case all
shares of Common Stock owned by the Holders which are not included in the
underwritten public offering shall be withheld from the market by the Holder for
a period, not to exceed one hundred twenty (120) calendar days, which the
managing underwriter reasonably determines as necessary in order to effect the
underwritten public offering.
4. INFORMATION. The Company may require the Holders to furnish
to the Company such information regarding themselves and the distribution of
Registrable Securities as the Company may from time to time reasonably request
in writing in order to comply with the Securities Act. The Holders agree to
notify the Company as promptly as practicable of any inaccuracy or change in
information they have previously furnished to the Company.
5. REGISTRATION PROCEDURES. In connection with the
registration obligations of the Company pursuant to and in accordance with
Section 3 of this Agreement, the Company shall effect such registrations to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement under the Securities Act that shall be available for the sale of the
Registrable Securities by a Holder in accordance with the intended method or
methods of distribution thereof, and use its best efforts to cause such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, as the case may be, the
Company shall furnish to such Holders and the managing underwriter or
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of such
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Holders and such underwriter or underwriters, if any, and the Company shall not
file any such Registration Statement, or amendment thereto or any Prospectus or
any supplement thereto to which such Holders, or the managing underwriter or
underwriters, if any, shall reasonably object on a timely basis;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement required to be filed
pursuant to Section 3 of this Agreement as may be necessary to keep such
Registration Statement effective for the time period necessitated by the
intended methods of disposition contemplated by the distribution resulting in
the filing of the Registration Statement; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement, as
so amended, or such Prospectus as so supplemented;
(c) notify any Holders and the managing underwriter or
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment related to such Registrable Securities has been filed,
and, with respect to a Registration Statement or any post-effective amendment
related to such Registrable Securities, when the same has become effective, (ii)
of any request by the Commission for amendments or supplements to such
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of such Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(j) below cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the happening of any event that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement or
Prospectus so that such documents will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the reasonable determination
of the Company that a post-effective amendment to such Registration Statement
would be appropriate;
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(d) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement;
(e) if requested by the managing underwriter or underwriters
or any Holders, (i) immediately incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters and any Holders agree should be included therein and as may be
required by applicable law, (ii) make all required filings of such Prospectus
supplement or such post-effective amendment promptly after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or such post-effective amendment and (iii) supplement or make
amendments to such Registration Statement; PROVIDED, HOWEVER, that the Company
shall not be required to take any of the actions set forth in this Section 5(e)
that are not, in the opinion of counsel for the Company, in compliance with or
required by applicable law;
(f) furnish to each managing underwriter, if any, without
charge, at least one signed copy, and furnish to the Holders, without charge, at
least one conformed copy, of each Registration Statement related to such
Registrable Securities and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including, if requested, those previously furnished
or incorporated by reference);
(g) deliver to any Holders and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses related to such
Registrable Securities (including each preliminary prospectus) and as many
copies of any amendment or supplement thereto as they may reasonably request;
(h) prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the Holders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as such Holders or underwriter reasonably requests in writing; use
its best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective; PROVIDED, HOWEVER, that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it is not then
so qualified, (ii) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (ii) take
any action that would subject it to the assessment of taxes in any such
jurisdiction where it is not then so subject;
(i) cause all Registrable Securities covered by such a
Registration Statement to be (i) listed on each securities
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exchange, if any, on which similar securities issued by the Company are then
listed, or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System if the securities so qualify and
if the Company does not then have similar securities listed on any securities
exchange;
(j) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in similar underwritten
offerings) and take all such other actions in connection therewith (including
those reasonably requested by the managing underwriter or underwriters, if any,
or the Holders) in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration (i) obtain opinions of counsel to the Company and updates thereof
addressed to the Holders and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings;
(ii) obtain "cold comfort" letters and updates thereof from the independent
certified public accountants of the Company addressed to the Holders and each of
the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with similar underwritten offerings; and (iii) if an underwriting agreement is
entered into, the same shall contain customary indemnification provisions and
procedures no less favorable than those set forth in Section 6 hereof with
respect to all parties to be indemnified pursuant to said Section; and
(k) so long as the Company is required to keep the
Registration effective, comply with all applicable rules and regulations of the
Commission and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or are sold in a best
efforts underwritten offering, and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods.
The Company may require any Holder to furnish to the Company
such information regarding the distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any Holder if
he fails to furnish such information within a reasonable time after receiving
such request.
Each Holder agrees by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of the
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happening of any event of the kind described in Section 5(c)(ii), (iii), (iv),
(v), (vi) or (vii) hereof, the Holders shall immediately discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until the Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(b) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated or deemed to be incorporated by
reference in such Prospectus. In the event the Company shall give any such
notice, the time period mentioned in Section 5(b) hereof shall be extended by
the number of days during the time period from and including the date of the
giving of such notice to and including the date when any Holder shall have
received the copies of the supplemented or amended Prospectus contemplated by
Section 5(b) hereof or the Advice.
6. REGISTRATION EXPENSES.
All reasonable fees and expenses incident to the Company's
performance of or compliance with this Agreement shall be borne by the Company
whether or not any Registration Statement becomes effective including, without
limitation: (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with the
National Association of Securities Dealers, Inc., and (B) with respect to
compliance with securities or Blue Sky laws); (ii) fees and disbursements of
counsel for the Company; (iii) fees and disbursements of all independent
certified public accountants for the Company; (iv) Securities Act liability
insurance if the Company so desires such insurance; and (v) fees and expenses of
all other persons retained by the Company. The Company shall not pay any fees or
expenses incurred by any Holder, including, without limitation, the Holder's
accounting and legal expenses and commissions or underwriting discounts.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. Whenever a Registration
Statement relating to the Registrable Securities is filed under the Securities
Act, the Company will (except as to matters covered by Section 7(b) hereof)
indemnify and hold harmless each Holder participating in the registration and
each person, if any, who controls any such Person (collectively, the "Holder
Indemnitees" and, individually, a "Holder Indemnitee"), against any losses,
claims, damages or liabilities, joint or several, to which such Holder
Indemnitees may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, or Prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except for statements
or omissions made in reliance on and in conformity with information furnished to
the Company by such Holder specifically for use in the preparation thereof, and
will reimburse each Holder Indemnitee for all legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action.
(b) INDEMNIFICATION BY HOLDERS. Each Holder participating in
such registration will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the Registration Statement and
each other person, if any, who controls the Company, within the meaning of the
Securities Act (collectively, the "Company Indemnitees" and, individually, a
"Company Indemnitee") and each other Holder Indemnitee against all losses,
claims, damages or liabilities, joint or several, to which any of the Company
Indemnitees or the other Holder Indemnitees may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, or Prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only if, and to the
extent that, such statement or omission was in reliance upon and in conformity
with information furnished to the Company by such Holder specifically for use in
the preparation thereof.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by a
Holder Indemnitee or a Company Indemnitee (collectively, "Indemnitees" and,
individually, an "Indemnitee") under Section 7(a) or 7(b) hereof of notice of
the commencement of any action, such Indemnitee will, if a claim in respect
thereof is to be made against the indemnifying party under such clause, notify
the indemnifying party in writing of the commencement thereof; but the failure
so to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any Indemnitee otherwise than under such
clauses or to the extent that the Indemnitee is not prejudiced by the failure to
receive such notice. In case any such action shall be brought against any
Indemnitee, and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
Indemnitee, and after notice from the indemnifying party to such Indemnitee of
its election to assume the defense thereof, the indemnifying party shall not be
liable to such Indemnitee under such clause for any legal or other expenses
subsequently incurred by such Indemnitee in connection with the defense thereof
other than reasonable costs of investigation; PROVIDED, HOWEVER, that the
Indemnitee shall have
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the right to employ one counsel to represent such Indemnitee if, in the
reasonable judgment of such Indemnitee, it is advisable for such party to be
represented by separate counsel because separate defenses are available, or
because a conflict of interest exists between such indemnified and indemnifying
party in respect of such claim, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. Notwithstanding the
foregoing, if the Company is an Indemnitee, the Company shall designate the one
counsel, and in all other circumstances, the one counsel shall be designated by
a majority in interest based upon the Registrable Securities of the Indemnities.
For purposes of this Section 7 the terms "control," and "controlling person"
have the meanings which they have under the Securities Act.
8. AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified or supplemented in any respect only by written agreement by the Company
and the Holders of a majority of the issued and outstanding shares of
Registrable Securities.
9. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, without
giving effect to the choice of law principles thereof.
10. INVALIDITY OF PROVISION. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
11. NOTICES. All notices and other communications hereunder
shall be in writing and, unless otherwise provided herein, shall be deemed duly
given if delivered personally or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses or (at such other
address for the party as shall be specified by like notice):
(a) If to the Company:
Hospitality Worldwide Services, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Xxxxxx Xxxxxxxx Frome & Xxxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
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(b) If to a Holder, as listed on the signature pages attached
hereto or as such Holder shall designate to the Company in
writing.
12. HEADINGS; EXECUTION IN COUNTERPARTS. The headings and
captions contained herein are for convenience of reference only and shall not
control or affect the meaning or construction of any provision hereof. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the
same instrument.
13. ENTIRE AGREEMENT. This Agreement, including any exhibits
hereto and the documents and instruments referred to herein and therein,
embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the parties hereto and their successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been signed by each of
the parties hereto as of this 9th day of January, 1997.
HOSPITALITY WORLDWIDE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
STOCKHOLDER:
/s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Address: 0000 XX 00 Xxxxxx
Xxxxx, XX 00000
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Address: 0000 Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Address: 0000 X. Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Address: 0000 XX 000 Xxxxxx
Xxxxx, XX 00000
/s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Address: 0000 XX 000xx Xxxxxxx
Xxxxx, XX 00000
/s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Address: 000 0xx Xx.
Xxxxxxxxx Xxxxx, XX 00000
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