REGISTRATION RIGHTS AGREEMENT by and between PENSON WORLDWIDE, INC. and SCHONFELD SECURITIES, LLC dated as of November 20, 2006
Exhibit 10.1
Execution Copy
by and between
XXXXXX WORLDWIDE, INC.
and
XXXXXXXXX SECURITIES, LLC
dated as of November 20, 2006
THIS REGISTRATION RIGHTS AGREEMENT (“Agreement”) is made as of the 20th day of November, 2006,
by and between Xxxxxx Worldwide, Inc., a Delaware corporation (the “Company”), and Xxxxxxxxx
Securities, LLC, a New York limited liability company (the “Investor”).
RECITALS
WHEREAS, SAI Holdings, Inc., a subsidiary of the Company, and the Investor are parties to the
Asset Purchase Agreement; and
WHEREAS, in order to induce the Investor to enter into the Asset Purchase Agreement, the
Investor and the Company hereby agree that this Agreement shall govern the rights of the Investor
to cause the Company to register shares of Common Stock issuable to the Investor pursuant to the
Asset Purchase Agreement, and shall govern certain other matters as set forth in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Asset Purchase Agreement. For purposes of this Agreement:
1.1 “Asset Purchase Agreement” means that certain Asset Purchase Agreement by and between SAI
Holdings, Inc., a Texas corporation and subsidiary of the Company, and Xxxxxxxxx Securities, LLC, a
New York limited liability company, dated as of the date hereof.
1.2 “Common Stock” means shares of the Company’s common stock, par value $0.01 per share.
1.3 “Damages” means any loss, claim, damage, or liability (joint or several) to which a party
hereto may become subject under the Securities Act, the Exchange Act, or other federal or state
law, insofar as such loss, claim, damage, or liability (or any action in respect thereof) arises
out of or is based upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in any registration statement of the Company, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto; (ii) an omission or
alleged omission to state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading; or (iii) any violation or alleged violation by any
other party hereto of the Securities Act, the Exchange Act, any state securities law, or any rule
or regulation promulgated under the Securities Act, the Exchange Act, or any state securities law.
1.4 “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
1.5 “Excluded Registration” means a registration relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase, or similar
plan or an SEC Rule
145 transaction; a registration on any form that does not include substantially the same
information as would be required to be included in a registration statement covering the sale of
the Registrable Securities; or a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt securities that are also being registered.
1.6 “Form S-3” means such form under the Securities Act as in effect on the date hereof or any
registration form under the Securities Act subsequently adopted by the SEC that permits
incorporation of substantial information by reference to other documents filed by the Company with
the SEC.
1.7 “GAAP” means generally accepted accounting principles in the United States.
1.8 “IPO” means the Company’s first underwritten public offering of its Common Stock under the
Securities Act, the closing of which occurred on May 22, 2006.
1.9 “Person” means any individual, corporation, partnership, trust, limited liability company,
association or other entity.
1.10 “Register,” “registered,” and “registration” refer to a registration effected by
preparing and filing a registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such registration statement or document.
1.11 “Registrable Securities” means the Common Stock issuable or issued to Xxxxxxxxx
Securities, LLC (or to Xxxxxxxxx Group Holdings LLC as its designee as permitted pursuant to the
terms of the Asset Purchase Agreement) pursuant to the Asset Purchase Agreement and any shares of
Common Stock hereinafter acquired by Xxxxxxxxx Securities, LLC (or by Xxxxxxxxx Group Holdings LLC
as its designee) from the Company (including by way of a stock dividend, stock split or other
distribution or in connection with a combination of shares, recapitalization, subdivision,
combination, merger, consolidation, restructuring or other reorganization); excluding in all cases,
however, any Registrable Securities for which registration rights have terminated pursuant to
Section 3 of this Agreement; provided, however, that the shares of Common
Stock issuable or issued to Xxxxxxxxx Securities, LLC (or to Xxxxxxxxx Group Holdings LLC as its
designee) by the Company shall only be treated as Registrable Securities if and so long as they
have not been sold to or through a broker or dealer or underwriter in a public distribution or
otherwise pursuant to an effective Registration Statement.
1.12 “Registrable Securities then outstanding” means the number of shares determined by adding
the Common Stock outstanding and the Common Stock issuable pursuant to then exercisable or
convertible securities that are Registrable Securities.
1.13 “SEC” means the Securities and Exchange Commission.
1.14 “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
1.15 “SEC Rule 145” means Rule 145 promulgated by the SEC under the Securities Act.
1.16 “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
1.17 “Selling Expenses” means all underwriting discounts, selling commissions, and stock
transfer taxes applicable to the sale of Registrable Securities.
1.18 “Term” means the shorter of (i) the ten (10) year period following the final Conversion
Date, and (ii) the termination of a Clearing Agreement between PFSI and any of Xxxxxxxxx & Company
LLC, Opus Trading Fund LLC, Quantitative Trading Strategies LLC and Xxxxxxxx Capital Series Fund
LLC if such termination is due to an uncured breach by any such Introducing Broker of its Clearing
Agreement.
1.19 For all purposes of this Agreement, the term “Investor” shall mean Xxxxxxxxx Securities,
LLC, any person or entity designated by Xxxxxxxxx Securities, LLC to be issued the Common Stock
pursuant to the Asset Purchase Agreement and any person or entity to whom Xxxxxxxxx Securities, LLC
or any such designee transfer the shares of Common Stock.
2. Registration Rights. The Company covenants and agrees as follows:
2.1 Demand Registration.
(a) If at any time after December 15, 2006, the Company receives a request from the Investor
that the Company effect a registration of the Registrable Securities for an anticipated aggregate
offering price, net of Selling Expenses, in excess of $15 million, then the Company shall as soon
as practicable, and in any event within sixty (60) days after the date such request is given by the
Investor, file a registration statement under the Securities Act covering all Registrable
Securities that the Investor requested to be registered, subject to the limitations of Section
2.1(b).
(b) Notwithstanding the foregoing obligations, if the Company furnishes to the Investor a
certificate signed by the Company’s chief executive officer stating that in the good faith judgment
of the Company’s Board of Directors it would be materially detrimental to the Company and its
stockholders for such registration statement to be filed and it is therefore necessary to defer the
filing of such registration statement, then the Company shall have the right to defer taking action
with respect to such filing, and any time periods with respect to filing or effectiveness thereof
shall be tolled correspondingly, for a period of not more than six (6) months after the request of
the Investor is given; provided, however, that the Company may not invoke this right more
than once in any twelve (12) month period.
(c) The Company shall not be obligated to effect, or to take any action to effect, any
registration pursuant to this Section 2.1: (i) during the period that is sixty (60) days
before the Company’s good faith estimate of the date of filing of, and ending on a date that is one
hundred eighty (180) days after the effective date of, a Company-initiated registration,
provided, that the Company is using good faith commercially reasonable efforts to cause
such registration statement to become effective; (ii) after the Company has effected two
registrations upon the demand of the Investor; or (iii) unless the Company is then eligible to file
such registration on Form S-3. A registration shall not be counted as “effected” for purposes of
this Section 2.1 until such time as the applicable registration statement has been declared
effective by the SEC, unless the Investor withdraws its request for such registration after a
registration statement pertaining to such request has been filed with the SEC, in which case such
withdrawn registration statement shall be counted as “effected” for purposes of this Section
2.1.
2.2 Company Registration.
(a) If at any time or times, the Company proposes to register (including, for this purpose, a
registration effected by the Company for stockholders other than the Investor) any of its stock or
other securities under the Securities Act in connection with the public offering of such securities
solely for cash (other than an Excluded Registration), the Company shall, at such time, promptly
(but not later than sixty (60) days prior to the anticipated initial filing date) give the Investor
written notice of such registration. Upon the request of the Investor given within twenty (20)
days after such notice is given by the Company, the Company shall determine in good faith whether
or not to register all or any part of the Registrable Securities that the Investor has requested to
be included in such registration. All expenses incurred in connection with registrations, filings,
or qualifications pursuant to this Section 2.2, including all registration, filing,
qualification, printers’ and accounting fees, and fees and disbursements of counsel for the
Company, shall be borne and paid by the Company; provided, however, that should the
Investor participate in such offering, the Investor shall bear and pay its pro rata share of all
Selling Expenses incurred relating to the Registrable Securities registered in addition to any and
all fees and disbursements of any counsel or other professionals retained by the Investor related
to such offering.
(b) The Company shall have the right in its sole discretion to terminate or withdraw any
registration initiated by it under this Section 2.2 before the effective date of such
registration, whether or not the Investor has elected to include Registrable Securities in such
registration. The expenses of such withdrawn registration shall be borne by the Company.
Notwithstanding the foregoing, if the Company’s decision to terminate or withdraw a registration
initiated by it is primarily based upon the anticipated offering price of the securities to be sold
by the Company, then upon the request of the Investor, the Company shall promptly complete any such
registration for the benefit of the Investor; provided that the Investor shall bear all
expenses related thereto that would otherwise be borne by the Company in accordance with this
Section 2.2.
(c) Notwithstanding anything herein to the contrary, the Investor shall have the right to
withdraw any or all of the Registrable Securities from any registration filed by the Company
prior to the effective date of such registration. If the Investor withdraws or otherwise decides
not to include any or all of the Registrable Securities in any registration filed by the Company
pursuant to this Section 2.2, the Investor shall nevertheless continue to have the right
to include any Registrable Securities in any subsequent registration or registrations as may be
initiated by the Company (including any registration effected by the Company for its own account
or for stockholders other than the Investor) with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
2.3 Underwriting Requirements.
(a) If, pursuant to Section 2.1, the Investor intends to distribute the Registrable
Securities covered by its request by means of an underwriting, it shall so advise the Company as a
part of its request. The underwriter will be selected by the Company and shall be reasonably
acceptable to the Investor. The Investor shall (together with the Company as provided in
Section 2.4(f)) enter into an underwriting agreement in customary form with the managing
underwriter(s) selected for such underwriting.
(b) In connection with any offering involving an underwriting of shares of the Company’s
capital stock pursuant to Section 2.2, the Company shall not be required to include
Registrable Securities in such underwriting unless the Investor accepts the terms of the
underwriting as agreed upon between the Company and its underwriters, and then only in such
quantity as the underwriters in their sole discretion determine will not have a material adverse
effect upon the success of the offering by the Company.
2.4 Obligations of the Company. Whenever required under this Section 2 to effect
the registration of any Registrable Securities, the Company shall, reasonably promptly:
(a) before filing a registration statement or prospectus included in such registration
statement or any amendments or supplements thereto, including documents incorporated by reference
after the initial filing of the registration statement, furnish to the Investor copies of all such
documents proposed to be filed, which documents will be subject to the review of the Investor and
the Company will not file any registration statement or amendment thereto or any prospectus or any
supplement thereto (including such documents incorporated by reference) to which the Investor shall
reasonably object in writing, provided that such written objection is based on information
concerning the Investor and sets forth in reasonable detail the basis for such objection;
(b) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use commercially reasonable efforts to cause such registration statement to become
and remain effective for such period of time as may be reasonably necessary to effect the sale of
such Registrable Securities, not to exceed six (6) months;
(c) prepare and file with the SEC such amendments and supplements to such registration
statement, and the prospectus used in connection with such registration
statement, as may be
necessary to comply with the Securities Act in order to enable the disposition of all securities
covered by such registration statement and, as requested by the Investor, if in the written opinion
of counsel for the Investor (a copy of which shall be delivered to the Company) such amendment or
supplement is required or advisable under the Securities Act in connection with the distribution of
the Registrable Securities by the Investor (provided that if any such amendment or supplement
requested by the Investor is required as a result of information concerning the Investor not
theretofore disclosed to the Company, the Investor shall reimburse all reasonable costs and
expenses of the Company incurred in connection with the filing of such amendment or supplement);
(d) cause the prospectus to be supplemented by any required prospectus supplement and cause
any such supplement and all related filings to be made with the SEC as required by Rule 424 under
the Securities Act and furnish to the Investor such numbers of copies of a prospectus, including a
preliminary prospectus, as required by the Securities Act, and such other documents as the Investor
may reasonably request in order to facilitate its disposition of Registrable Securities;
(e) use commercially reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or blue-sky laws of such jurisdictions as shall
be reasonably requested by the Investor; provided that the Company shall not be required to
qualify to do business or to file a general consent to service of process in any such states or
jurisdictions, unless the Company is already subject to service in such jurisdiction and except as
may be required by the Securities Act;
(f) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering;
(g) notify the Investor, promptly after the Company receives notice thereof, of the time when
such registration statement has been declared effective or a supplement to any prospectus forming a
part of such registration statement has been filed;
(h) after such registration statement becomes effective, promptly notify the Investor of
any request by the SEC that the Company amend or supplement such registration statement or
prospectus;
(i) promptly notify the Investor of the happening of any event as a result of which the
registration statement or the prospectus included in such registration statement or any supplement
to the prospectus (as then in effect) contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not misleading or, if for any other reason
it shall be necessary during such time period to amend or supplement the registration statement or
the prospectus in order to comply with the Securities Act, whereupon, in either case, the Investor
and the Company shall each immediately cease to use such registration statement or prospectus for
any purpose;
(j) promptly notify the Investor after receiving notice of, or obtaining knowledge of, the
issuance of any stop order by the SEC suspending the effectiveness of the registration statement or
the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for that purpose, and use commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if any stop order
should be issued;
(k) cause all Registrable Securities registered pursuant to this Agreement to be listed on the
securities exchange on which the Common Stock of the Company is then listed;
(l) provide a transfer agent and registrar for all Registrable Securities registered pursuant
to this Agreement and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration; and
(m) use commercially reasonable efforts to furnish on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such registration (or the effective date of the
registration statement, if the registration is not underwritten): (i) an opinion dated such date of
counsel representing the Company for the purposes of such registration, addressed to the
underwriters and to the Investor, stating that such Registration Statement has become effective
under the Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act, (B) the registration statement,
the related prospectus and each amendment or supplement thereof comply as to form in all material
respects with the requirements of the Securities Act (except that such counsel need not express any
opinion as to financial statements contained therein), and (C) to such other effects as may
reasonably be requested by counsel for the underwriters or by the Investor or their respective
counsel; and (ii) a letter dated such date from the independent public accountants retained by the
Company, addressed to the underwriters and to the Investor, stating that they are independent
public accountants within the meaning of the Securities Act and that, in the opinion of such
accountants, the financial statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter shall additionally
cover such other financial matters (including information as to the period ending no more than five
(5) business days prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request.
2.5 Furnish Information. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 2 with respect to the Registrable
Securities that the Investor shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of such securities as is
reasonably required to effect the registration of the Investor’s Registrable Securities.
2.6 Expenses of Registration. Except as set forth in Section 2.2, all reasonable expenses incurred in connection with
registrations, filings, or qualifications pursuant to this Section 2, including all Selling
Expenses, registration, filing, qualification, printers’ and
accounting fees, and fees and
disbursements of counsel for the Company, shall be borne and paid by the Investor;
provided, however, that should the Company elect to allow additional parties to
participate in any such offering, then all such expenses shall be borne by the sellers in such
offering pro rata to the number of shares of Common Stock sold by each party in the offering. The
Company may request that the Investor provide a reasonable deposit of funds with the Company in
anticipation of the expenses the Company may incur in connection with any such registration.
2.7 Delay of Registration. The Investor shall have no right to obtain or seek an
injunction restraining or otherwise delaying any registration pursuant to this Agreement as the
result of any controversy that might arise with respect to the interpretation or implementation of
this Section 2.
2.8 Reports Under Exchange Act. With a view to making available to the Investor the
benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at any time permit
the Investor to sell securities of the Company to the public without registration or pursuant to a
registration on Form S-3, the Company shall:
(a) make and keep public information available, as those terms are understood and defined in
SEC Rule 144, at all times from and after the date hereof;
(b) use commercially reasonable efforts, including voluntarily registering the Common Stock
under Section 12 of the Exchange Act, to qualify for registration on Form S-3 for the sale of the
Registrable Securities, and file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act; and
(c) furnish to the Investor, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of SEC Rule 144 (at any time such Registrable
Securities so qualify), the Securities Act and the Exchange Act, or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time after the Company so
qualifies); (ii) a copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company; and (iii) such other information as may be
reasonably requested in availing the Investor of any rule or regulation of the SEC that permits the
selling of any such securities without registration or pursuant to such Form S-3 (at any time after
the Company so qualifies to use such form).
3. Termination of Registration Rights. The right of the Investor to request registration
or inclusion of Registrable Securities in any registration pursuant to Section 2.1 or
Section 2.2, shall terminate upon the earliest of:
(a) the expiration of the Term; or
(b) such time as, after the four-year anniversary of the last Conversion Date, the Investor
shall no longer hold (x) at least five percent (5.0%) of the Common Stock, as measured on a
fully-diluted basis, or (y) Registrable Securities with a fair market value in excess of $15
million.
4. Confidential Information. The Investor agrees to keep confidential and will not
disclose, divulge, or use for any purpose (other than to monitor its investment in the Company) any
confidential information obtained from the Company pursuant to the terms of this Agreement
(including notice of the Company’s intention to file a registration statement), unless such
confidential information (a) is known or becomes known to the public in general (other than as a
result of a breach of this Section 4 by the Investor), (b) is or has been independently
developed or conceived by the Investor without use of the Company’s confidential information, or
(c) is or has been made known or disclosed to the Investor by a third party without a breach of any
obligation of confidentiality such third party may have to the Company; provided, however,
that the Investor may disclose confidential information: (i) to its attorneys, accountants,
consultants and other professionals to the extent necessary to obtain their services in connection
with monitoring its investment in the Company; (ii) to any prospective purchaser of any Registrable
Securities from the Investor, if such prospective purchaser agrees to be bound by the provisions of
this Section 4; provided, that in no event shall the Investor provide such
information to any third party engaged in, or anticipating engagement in, a Competitive Business:
(iii) to any Affiliate, partner, member, stockholder, or wholly owned subsidiary of the Investor in
the ordinary course of business, provided that the Investor informs such Person that such
information is confidential and directs such Person to maintain the confidentiality of such
information; and/or (iv) as may otherwise be required by law, provided that the Investor
promptly notifies the Company of such disclosure and takes reasonable steps to minimize the extent
of any such required disclosure.
5. Miscellaneous.
5.1
Governing Law; Jurisdiction; Waiver of Jury Trial.
(i) This Agreement shall be governed by and construed in accordance with the internal laws of
the State of New York, without regard to its principles of conflicts of laws.
(ii) To the fullest extent permitted by applicable law, each party hereto (a) agrees that any
claim, action or proceeding by such party seeking any relief whatsoever arising out of, or in
connection with, this Agreement or the transactions contemplated hereby shall be brought in any
state or federal court of competent jurisdiction sitting in New York County in the State of New
York or Dallas County in the State of Texas, depending upon the location of the principal office of
the initial defendant, and not in any other state or federal court in the United States of America
or any court in any other country, (b) agrees to submit to the exclusive jurisdiction of such
courts described in clause (a) for purposes
of all legal proceedings arising out of, or in connection with, this Agreement or the
transactions contemplated hereby, (c) waives and agrees not to assert any objection that it may now
or hereafter have to the laying of the venue of any such proceeding brought in such a court or any
claim that any such proceeding brought in such a court has been brought in an inconvenient forum,
and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
(iii) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS AND FOR ANY COUNTERCLAIM
RELATING THERETO.
5.2 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement may also be executed and delivered by facsimile signature and in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.3 Titles and Subtitles. The titles and subtitles used in this Agreement are for
convenience only and are not to be considered in construing or interpreting this Agreement.
5.4 Notices. All notices, requests, and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed effectively given (i) upon personal delivery
to the party to be notified; (ii) when sent by confirmed electronic mail or facsimile if sent
during normal business hours of the recipient, and if not so confirmed, then on the next business
day; (iii) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next-day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at their addresses as set forth in the Asset
Purchase Agreement, or to such email address, facsimile number, or address as subsequently modified
by written notice given in accordance with this Section 5.4.
5.5 Amendments and Waivers. Any term of this Agreement may be amended and the observance
of any term of this Agreement may be waived (either generally or in a particular instance, and
either retroactively or prospectively) only with the written consent of the Company and the
Investor. No waivers of or exceptions to any term, condition, or provision of this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or continuing waiver of
any such term, condition, or provision.
5.6 Severability. In case any one or more of the provisions contained in this Agreement is
for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision of this Agreement, and such
invalid, illegal, or unenforceable provision shall be reformed and construed so that it will be
valid, legal, and enforceable to the maximum extent permitted by law.
5.7 Entire Agreement. This Agreement, together with the Asset Purchase Agreement
(including any Schedules and Exhibits hereto and/or thereto) and the Ancillary Agreements
constitutes the full and entire understanding and agreement between the parties with respect to the
subject matter hereof, and any other written or oral agreement relating to the subject matter
hereof existing between the parties is expressly canceled.
5.8 Assignment. This Agreement shall be binding upon all successors, assigns or
transferees of both parties hereto, irrespective of any change with regard to the name of or the
personnel of the Company or the Investor. No assignment of this Agreement by the Investor
shall be valid unless the Company consents to such an assignment in writing, provided that such consent
shall not be unreasonably withheld or delayed.
5.9 Delays or Omissions. No delay or omission to exercise any right, power, or
remedy accruing to any party under this Agreement, upon any breach or default of any other party
under this Agreement, shall impair any such right, power, or remedy of such nonbreaching or
nondefaulting party, nor shall it be construed to be a waiver of or acquiescence to any such breach
or default, or to any similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. All remedies, whether under this Agreement or by law or otherwise afforded
to any party, shall be cumulative and not alternative.
5.10 Indemnification.
(a) To the fullest extent permitted by Law, the Company will indemnify, defend and hold
harmless the Investor, and each Person, if any, who controls the Investor within the meaning of the
Securities Act or the Exchange Act, against any Losses to which the Investor or any such
controlling Person may become subject under the Securities Act, the Exchange Act, or otherwise,
insofar as such Losses (or proceedings in respect thereof) arise out of or are based upon any of
the following statements, omissions or violations (collectively, a “Violation”): (i) any untrue
statement or alleged untrue statement of a material fact contained in a registration statement,
including any prospectus prospectus contained therein or any amendments or supplements thereto,
(ii) 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, or (iii) any violation or
alleged violation by the Company of the Securities Act, the Exchange Act, or any state securities
law or any rule or regulation promulgated under the Securities Act, the Exchange Act, or any state
securities law; and the Company will pay to the
Investor or such controlling Person any legal or other expenses reasonably incurred in
connection with investigating or defending against any such Losses or proceedings; provided,
however, that the indemnity obligation contained in this Section 5.10(a) shall not apply to
amounts paid in settlement of any such Losses or proceedings if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld, conditioned or
delayed), nor shall the Company be liable in any such case for any such Losses or proceedings to
which the Investor or such controlling Person may become subject to the extent that it arises out
of or is based upon a Violation that occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by the Investor or
such controlling Person.
(b) To the fullest extent permitted by Law, the Investor will indemnify, defend and hold
harmless the Company and any underwriter against any Losses to which the Company and any
underwriter may become subject under the Securities Act, the Exchange Act or otherwise, insofar as
such Losses (or proceedings in respect thereof) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by the Investor expressly for use in connection with
such registration; and the Investor will pay any legal or other expenses reasonably incurred by the
Company and any underwriter in connection with investigating or defending against any such Losses
or proceedings; provided, however, that
(i) the indemnity obligation contained in this Section
5.10(b) shall not apply to amounts paid in settlement of any such Losses or proceedings if such
settlement is effected without the written consent of the Investor (unless such settlement includes
an unconditional release of the Investor from all Losses on claims that are the subject matter of
any related proceeding), which consent shall not be unreasonably withheld, conditioned or delayed;
and (ii) in no event shall any indemnity under this Section 5.10(b) exceed the net proceeds
from the registration actually received by the Investor.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| XXXXXX WORLDWIDE, INC. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxxxx | |||
Name:
|
Xxxxxx X. Xxxxxxxxxxx | |||
Title:
|
Chief Executive Officer | |||
Address:
|
0000 Xxxxxxx Xxxxxx, Xxxxx 0000 | |||
| Xxxxxx, XX 00000 | ||||
| XXXXXXXXX SECURITIES, LLC | ||||
By:
|
XXXXXXXXX GROUP HOLDINGS LLC | |||
| Manager | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |||
Name:
|
Xxxxxx X. Xxxxxxxxx | |||
Title:
|
Chief Executive Officer | |||
Address:
|
Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 | |||
With a copy to:
|
Xxxxxxxxx, Xxxxxx & Xxxxxx, LLC 000 Xxxxxxx Xxxxxx – 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn.: Xxxxxx X. Xxxxx, Esq. |
