VOTING AND REGISTRATION RIGHTS AGREEMENT
THIS VOTING AGREEMENT, dated as of July 30, 2004, between XXXXXX
HOLDING COMPANY, INC., a Delaware corporation ("SHC"), and KNIGHT XXXXXX, INC.,
a Delaware Corporation ("KFI").
KFI owns Xxxxxx Shares (as defined below) and SHC owns KFI Shares. KFI
has declared a dividend in-kind of its Xxxxxx Shares, which will be distributed
to KFI's shareholders of record July 14, 2004. Until such time as the Xxxxxx
Shares to be distributed to KFI's shareholders are registered, and the shares
subsequently distributed, SHC will hold the shares in escrow for the benefit of
KFI's shareholders of record July 14, 2004. Each of the parties hereto deems it
to be in their respective best interests to enter into this Agreement to set
forth the voting rights of each of them.
NOW THEREFORE, in consideration of the premises and mutual covenants
and obligations hereinafter set forth, SHC and KFI hereby agree as follows:
Section 1. Definitions. The following words and terms shall have the following
meanings, respectively, unless the context clearly requires otherwise:
"Business Day" means any day that is not (i) a Saturday, Sunday or (ii)
a day on which the New York Stock Exchange is closed.
"KFI Shares" means the Common Stock, $0.0001 par value per share of
KFI.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental entity or any department, agency or political subdivision
thereof.
"Registrable Shares" means Xxxxxx Shares held in escrow for the benefit
of KFI's shareholders, as contemplated herein.
"Registration Statement" shall mean any registration statement of SHC
which covers any of the Registrable Shares and all amendments and supplements to
any such Registration Statement, including post-effective amendments, in each
case including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Xxxxxx Shares" means the Common Stock, $0.0001 par value per share of
SHC.
Section 2. Voting Agreement.
(a) Voting.
(i) For the period beginning on the Closing Date and ending on
the second anniversary thereof (the "Termination Date"), so long as KFI shall
hold any shares of Xxxxxx Shares, KFI hereby agrees that at any meeting of SHC,
however called, or in connection with any written consent of shareholders of
SHC, KFI shall vote (or cause to be voted) the shares of Xxxxxx Shares owned by
KFI as instructed by SHC in writing.
(ii) For a period beginning on the Closing Date and ending on
the Termination Date, so long as SHC shall hold any shares of KFI Shares, SHC
hereby agrees that at any meeting of KFI, however called, or in connection with
any written consent of shareholders of KFI, SHC shall vote (or cause to be
voted) the shares of KFI Shares owned by SHC as instructed by KFI in writing.
(iii) For a period beginning on the Closing Date and ending on
the Termination Date, so long as SHC shall be the escrow agent with respect to
any shares of Xxxxxx Shares held for the benefit of KFI's shareholders of record
July 14, 2004, SHC hereby agrees that at any meeting of SHC, however called, or
in connection with any written consent of shareholders of SHC, SHC shall vote
(or cause to be voted) the shares of Xxxxxx Shares held in such escrow as it
deems appropriate in its sole discretion.
(b) IRREVOCABLE PROXY. KFI HEREBY GRANTS TO, AND APPOINTS SHC, AND ANY
OTHER INDIVIDUAL WHO SHALL HEREAFTER SUCCEEED TO ANY SUCH REPRESENTATIVE
CAPACITY OF SHC, AND ANY OTHER DESIGNEE OF SHC (THE "PROXY"), AND EACH OF THEM
INDIVIDUALLY, KFI'S IRREVOCABLE PROXY AND ATORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION AND RE-SUBSTITUTION) TO VOTE THE SHARES OF XXXXXX SHARES HELD BY
KFI, OR HELD FOR THE BENEFIT OF KFI'S SHAREHOLDERS, AS INDICATED IN SECTION 2(a)
ABOVE. KFI INTENDS THAT THIS PROXY BE IRREVOCABLE (UNTIL THE TERMINATION DATE)
AND COUPLED WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH KFI WITH RESPECT TO KFI'S
SHARES OF XXXXXX SHARES. SHC GRANTS AN EQUAL PROXY TO KFI WITH RESPECT TO THE
SHARES OF KFI SHARES OWNED BY IT.
Section 3. Piggyback Registration Rights. If SHC at any time proposes for any
reason to register shares of Xxxxxx Shares under the Securities Act, SHC shall
cause all Registrable Shares to be included in such registration on the same
terms and conditions as the securities otherwise being included in such
registration; provided, however, that if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the registration statement filed in connection with such registration
SHC shall determine for any reason either not to register or to delay
registration of such securities, SHC, at its election, may (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Shares in connection with such registration, and (ii) in the
case of a determination to delay registering any Registrable Shares, shall be
permitted to delay registering any Registrable Shares, for the same period as
the delay in registering such other securities. In conjunction with such
piggyback registration, SHC may, as it deems appropriate in its sole discretion,
(i) include all or a portion of the Registrable Shares in an underwritten
offering, (ii) distribute the Registrable Shares, once registered and
fully-tradable, to KFI's shareholders, and/or (iii) enter into a lock-up
agreement for a period not to exceed 185 days during which time it will cause
such Registrable Shares to remain in escrow prior to being distributed to KFI's
shareholders
Section 4. Miscellaneous.
(a) Successors and Assigns. This Agreement shall bind and inure to the
benefit of SHC, KFI and Trustee, and, subject to Section 5(b), the respective
successors and assigns of SHC, KFI and Trustee. This Agreement is not intended
to create any third party beneficiaries.
(b) Assignment. No party to this agreement may assign his rights
hereunder.
(c) Severability. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
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jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(d) Entire Agreement. This Agreement and the other writings referred to
herein or delivered pursuant hereto contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous arrangements or understandings with respect hereto and
thereto.
(e) Notices. All communications hereunder to any party shall be deemed
to be sufficient if contained in a written instrument delivered in person or
sent by telecopy, nationally-recognized overnight courier guaranteeing next day
delivery or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at its address below or such other
address as such party may hereafter designate in writing:
if to SHC, to:
Xxxxxx Holding Company, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
if to KFI, to:
x/x Xxxx Xxxxxxxxxxxxx, LLC
00000 Xxxxxxxxxx Xxxxx.
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
All such notices, requests, consents and other communications shall be
deemed to have been given and received (i) in the case of personal delivery or
delivery by telecopy, on the date of such delivery, (ii) in the case of dispatch
by nationally-recognized overnight courier, on the next Business Day following
such dispatch and (iii) in the case of mailing, on the third Business Day after
the posting thereof.
(f) Modifications; Amendments; Waivers. The terms and provisions of this
Agreement may not be modified or amended, nor may any provision be waived,
except pursuant to a writing signed by SHC and KFI. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(g) Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts (each of which may be transmitted via facsimile), and
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each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement.
(h) Headings. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
(i) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION), THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED.
(j) Jurisdiction and Venue.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for himself, herself or itself and its, his or her
property, to the nonexclusive jurisdiction of any State of Delaware state court
or federal court of the United States of America sitting in the State of
Delaware and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such State of Delaware state court
or, to the extent permitted by law, in any such federal court. Each of the
parties hereto 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 law.
(ii) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent that he, she or it may legally and
effectively do so, any objection that he, she or it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to the Agreement in any State of Delaware state or federal court sitting in the
State of Delaware. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(iii) Each of the parties further agrees that the mailing of any
process required by any such court by certified or registered mail, return
receipt requested, to the address for notice herein provided shall constitute
valid and lawful service of process against him, her or it, without the
necessity for service by any other means provided by law.
(k) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(l) Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and
vice-versa.
(m) Construction. Where specific language is used to clarify by example
a general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Voting &
Registration Rights Agreement on the date first written above.
COMPANY:
XXXXXX HOLDING COMPANY, INC.
By: /s/ XXXXXX X. XXXXX
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Name:
Title:
KNIGHT XXXXXX, INC.
By: /s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
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