EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
October 26, 2000, and effective as of the Effective Time as defined in the
Reorganization Agreement, by and between Xxxxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), Cendant Corporation, a Delaware corporation
("Stockholder") and the Shelf Stockholders (as hereinafter defined) who are
signatories to this Agreement.
WHEREAS, pursuant to the terms and conditions of that certain
Agreement and Plan of Reorganization dated as of October 25, 2000 (the
"Reorganization Agreement"), the Company will issue shares of its common
stock to Stockholder; and
WHEREAS, subject to the terms and conditions set forth herein, the
Company has agreed to grant certain registration rights to Stockholder and
certain other holders of the tracking stock of Stockholder or options to
purchase the tracking stock of Stockholder with respect to such shares.
NOW, THEREFORE, in consideration of the promises, mutual covenants
and conditions herein contained, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following respective meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Affiliate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the 1934 Act.
"Closing" shall have the meaning set forth in the Reorganization
Agreement.
"Eligible Time" means the the third anniversary of the Closing.
"Existing Registration Rights Agreements" means any written agreement
dated as of a date prior to the date of the Reorganization Agreement
obligating the Company to register shares of any of the Company's
securities for its stockholders, including, without limitation, the Second
Amended and Restated Stockholders Agreement, dated January 28, 1999, by and
among the Company and certain of its stockholders, as amended by Amendment
No. 1 thereto dated April 9, 1999.
"Existing Stockholders" shall have the meaning ascribed to the term
"Stockholders" in the Existing Registration Rights Agreements, and any
other stockholder or holder of any security convertible into or
exchangeable for any of the Company's securities.
"Person" means a corporation, an association, a partnership, a
limited liability company, an organization, a business, an individual, a
joint venture, a trust or a governmental or political subdivision thereof.
"Register," "registered," and "registration" refers to a registration
effected by preparing and filing a registration statement or similar
document in compliance with the 1933 Act, and the declaration or ordering
of effectiveness of such registration statement or document.
"Registrable Securities" shall mean the Shelf Shares and the
Stockholder Shares.
"Registration Statement" means any registration statement described
in Sections 2.1 or 2.2 of this Agreement.
"Rule 144" means Rule 144 promulgated under the 1933 Act, or any
successor rule thereto.
"SEC" means the Securities and Exchange Commission.
"Shelf Shares" means the shares of common stock of the Company issued
or issuable to the Shelf Stockholders in accordance with the terms and
conditions of the Reorganization Agreement, and any securities of the
Company issued as a dividend on or other distribution with respect to, or
in exchange for or replacement of, such common stock.
"Shelf Stockholders" shall mean the Persons listed on Exhibit A.
"Stockholder" shall have the meaning set forth in the preamble
hereto.
"Stockholder Demand" shall have the meaning set forth in Section 2.1
below.
"Stockholder Shares" means the shares of common stock of the Company
issued or issuable to the Stockholder in accordance with the terms and
conditions of the Reorganization Agreement, and any securities of the
Company issued as a dividend on or other distribution with respect to, or
in exchange for or replacement of, such common stock.
2. Registration Rights.
2.1 Demand Registration.
(a) If at any time after the Eligible Time the Stockholder
requests in writing (the "Stockholder Demand") that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for
a public offering of Stockholder Shares, the Company shall, subject to
Section 4.1, file such Registration Statement with the SEC within sixty
(60) days after its receipt of such request. The Company shall use
commercially reasonable efforts to cause such Registration Statement to be
declared effective as soon thereafter as practicable and keep such
registration statement effective until the Stockholder notifies the Company
in writing that the Company is no longer required to keep such Registration
Statement effective. In no event, however, shall the Company be required to
(i) effect more than three (3) registrations pursuant to this section, (ii)
keep any registration statement filed pursuant to this section effective
for more than an aggregate of one hundred twenty (120) days, (iii) to
register more than 10% of the Stockholder Shares in any single registration
or (iv) effect more than one registration pursuant to this section in any
12-month period following the Eligible Time. The "Incidental Registration"
rights of the Existing Stockholders, to the extent provided for in Section
4.2 of the Existing Registration Rights Agreement, shall be applicable to a
registration effected pursuant to this Section 2.1.
(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of the receipt of
the Stockholder Demand, gives notice of its bona fide intention to effect
the filing of a registration statement to register on behalf of the Company
any of its common stock under the 1933 Act in connection with a public
offering of such common stock solely for cash with the SEC within sixty
(60) days of receipt of such demand (other than a registration relating
primarily to the sale of securities to participants in a Company stock plan
or employee benefit plan, a transaction covered by Rule 145 under the 1933
Act or the resale of securities issued in such transaction, a registration
in which the only stock being registered is common stock issuable upon
conversion or exchange of debt securities which are also being registered
or any registration on any form which does not include substantially the
same information as would be required to be included in a registration
statement covering the sale of the Stockholder Shares, any of which may
hereafter be referred to as an "Excepted Registration Statement");
provided, however, that if such registration statement is not filed by the
Company within sixty (60) days of receipt of such Stockholder Demand and
declared effective by the Commission within ninety (90) days after the
Company's receipt of such Stockholder Demand, the Company shall be
obligated to cause such Stockholder Shares to be registered in accordance
with the provisions of this Section 2.1 provided that the Company is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; or
(ii) during the period starting with the Company's date of
filing of, and ending on the date ninety (90) days immediately following,
the effective date of any registration statement pertaining to securities
of the Company (the "90-Day Postponement Period"), which registration was
subject to Section 2.2 hereof; provided that if the Company, within the
90-Day Postponement Period, files any other registration statement (other
than an Excepted Registration Statement), the Company will not be exempted
from its obligations pursuant to this Section 2.1; provided further that
the Company shall use commercially reasonable efforts to cause the
registration statement relating to the Stockholder Demand to be filed and
become effective within thirty (30) days after the 90-Day Postponement
Period.
(c) Notwithstanding the foregoing, the Company agrees to cause
such Stockholder Shares to be registered in accordance with the provisions
of Section 2.1(a) within one hundred twenty (120) days of the occurrence of
the postponement of a registration pursuant to Sections 2.1(b)(i) or
2.1(b)(ii); provided further that the Company may not postpone a demand
registration more than once in any twelve (12) month period.
2.2 Incidental Registration.
(a) Notwithstanding Section 2.1(a) of this Agreement and
Section 1.2(c) of the Stockholder Agreement between Stockholder and the
Company dated as of even date herewith, if at any time after the first
anniversary of the Closing, the Company proposes to register (for its own
account, on behalf of its stockholders, or a combination of the foregoing)
any of its common stock under the 1933 Act in connection with a public
offering of such common stock solely for cash (other than pursuant to an
Excepted Registration Statement) the Company shall, at such time, give the
Stockholder notice of such registration. Upon the written request of the
Stockholder, given within ten (10) days after notice has been given by the
Company in accordance with Section 9.1, the Company shall, subject to
Section 4, cause to be registered under the 1933 Act all of the Stockholder
Shares that the Stockholder has requested to be registered.
Nothwithstanding the foregoing, if, at any time after giving written notice
of its intention to register any securities and prior to the effective time
of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to Stockholder and (i) in the case of
determination not to register, shall be relieved of its obligation to
register any Stockholder Shares in connection with such registration (but
not from any obligation of the Company to pay any Registration Expenses (as
defined in Section 7 below)), without prejudice, however, to the rights of
Stockholder to request that such registration be effected pursuant to
Section 2.1 above and (ii) in the case of a determination to delay
registering, shall be relieved of its obligation to register any
Stockholder Shares for the same period as the delay in registering such
other securities. No registration effected under this Section 2.2 shall
relieve the Company of its obligation to effect any registration upon
request under Section 2.1.
2.3 Shelf Registration. Subject to Section 4 below, no later than
the earlier of (i) ninety (90) days after the Closing or (ii) May 31, 2001,
the Company shall file a registration statement on Form S-3 (or any
successor form to Form S-3) for a public offering of the Shelf Shares. The
Company shall use commercially reasonable efforts to cause such
Registration Statement to be declared effective as soon thereafter as
practicable and keep such registration statement effective, subject to
Section 4 below, for a period of one year. The "Incidental Registration"
rights of the Existing Stockholders, to the extent provided for in the
Existing Registration Rights Agreements, shall be applicable to a
registration effected pursuant to this Section 2.3; provided that the Shelf
Stockholders shall not be cut back.
2.4 Underwriting Requirements.
(a) In connection with any underwritten public offering
pursuant to Section 2.2 hereof, the Company shall not be required to
include any of the Stockholder Shares in such underwriting unless the
Stockholder accepts the terms of the underwriting as agreed upon between
the Company and the underwriters for the offering (which underwriters shall
be selected by the Company).
(b) If the total amount of securities, including Stockholder
Shares, requested to be included in an underwritten public offering
pursuant to Section 2.2 hereof exceeds the amount of securities that the
underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company shall be required to include in
the offering only that number of such securities, including Stockholder
Shares, which the underwriters determine in their sole discretion will not
jeopardize the success of the offering. In such event, the Company may
reduce the number of Stockholder Shares to be included in the offering
prior to reducing or excluding the shares proposed to be offered by the
Company and the holders of registration rights under the Existing
Registration Rights Agreement.
3. Further Obligations of the Company After Registration.
3.1 Blue Sky Compliance. The Company shall, in connection with a
Registration Statement covering Registrable Securities, use its
commercially reasonable efforts to register and qualify the Registrable
Securities covered by the Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by the Stockholder or the Shelf Stockholders, as the case may be,
provided that the Company shall not be required in connection therewith or
as a condition thereto 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 1933 Act.
3.2 Furnishing of Prospectus. With respect to a Registration
Statement filed pursuant to Sections 2.1, 2.2 or 2.3, the Company shall use
commercially reasonable efforts to furnish to the Stockholder or the Shelf
Stockholders, as applicable, copies of any preliminary prospectus and, as
expeditiously as reasonably possible after the effectiveness of the
Registration Statement, furnish to the Stockholder or the Shelf
Stockholders, as applicable, such numbers of copies of a final prospectus
in conformity with the requirements of the 1933 Act, and such other
documents as the Stockholder or a Shelf Stockholder, as the case may be,
may reasonably request, in order to facilitate the resale or other
disposition of Registrable Securities owned by such Stockholder or Shelf
Stockholder, as the case may be.
3.3 Amendments. With respect to a Registration Statement filed
pursuant to Section 2.1, 2.2 or 2.3 of this Agreement, and, subject to
Section 4.1 of this Agreement, the Company shall prepare and file with the
SEC such amendments to the Registration Statement and amendments or
supplements to the prospectus contained therein as may be necessary to keep
such Registration Statement effective and such Registration Statement and
prospectus accurate and complete for the entire period for which the
Registration Statement remains effective.
3.4 Notices. The Company shall:
(a) Notify the Stockholder or the Shelf Stockholders, as
applicable, promptly after it shall receive notice thereof, of the date and
time when any Registration Statement and each post-effective amendment
thereto has become effective covering Registrable Securities held by such
stockholder;
(b) Notify the Stockholder or the Shelf Stockholders, as
applicable, promptly of any request by the SEC for the amending or
supplementing of any Registration Statement or prospectus or for additional
information covering Registrable Securities held by such stockholder;
(c) Notify the Stockholder or the Shelf Stockholders, as
applicable, at any time when a prospectus relating to Registrable
Securities is required to be delivered under the 1933 Act, of any event
which would cause any such prospectus or any other prospectus as then in
effect to include an 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, subject to Section 4.1, promptly prepare and
file with the SEC, and promptly notify the Stockholder or the Shelf
Stockholders, as the case may be, of the filing of, such amendments or
supplements to any Registration Statement or prospectus as may be necessary
to correct any such statements or omissions;
(d) Notify Stockholder or the Shelf Stockholders, as
applicable, promptly after it shall receive notice of the issuance of any
stop order by the SEC suspending the effectiveness of any Registration
Statement covering Registrable Securities or the initiation or threatening
of any proceeding for that purpose and, subject to Section 4.1, promptly
use commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued.
4. Conditions and Limitations on Registration Rights. The
registration rights granted by this Agreement are subject to the following
additional conditions and limitations:
4.1 Delays and Suspension. The Company may delay the filing of, or
suspend or delay the effectiveness of a Registration Statement for a
reasonable period of time (but not exceeding 180 days), if the Company
determines, in its reasonable judgment, that such registration or offering
would interfere with any financing, acquisition, corporate reorganization
or other material transaction involving the Company or any of its
Affiliates or would require premature disclosure thereof and promptly give
Stockholder or the Shelf Stockholders, as applicable, written notice of
such delay, provided, however, that the Company may postpone a filing in
such manner only once in each twelve (12) month period; provided that if
the Company files any other registration statement during this postponement
period (other than an Excepted Registration Statement), the Company's
obligations shall no longer be permitted its rights to delay and suspension
under this Section 4.1. In such event, the Company's obligation under this
Agreement to file a registration statement, seek effectiveness of a
registration statement or keep such registration statement effective shall
be deferred. If the Company shall postpone the filing of a registration
statement pursuant to request for registration pursuant to Section 2.1
hereof, Stockholder shall have the right to withdraw the request for
registration by giving written notice to the Company within thirty (30)
days after receipt of the notice of postponement and, in the event of such
withdrawal, such request shall not be counted for purposes of the requests
for registration to which such selling Stockholder is entitled pursuant to
Section 2.1 hereof. If the Company suspends the effectiveness of a
Registration Statement, the Company will promptly deliver notice to the
Stockholder or the Shelf Stockholders, as applicable, of such suspension
and will again deliver notice to the Stockholder when such suspension is no
longer necessary and the duration for which the Company is required to keep
a Registration Statement effective shall be extended by an additional
number of days equal to the length of any suspension period.
4.2 Amended or Supplemented Prospectus. The Stockholder and the
Shelf Stockholders agree that, as a condition to the receipt of the
registration rights contained herein, upon receipt of any notice from the
Company described in Section 4.1 hereof that suspends an effective
registration statement, such stockholder shall forthwith discontinue
disposition of Registrable Shares until such stockholder's receipt of
copies of a supplemented or amended prospectus from the Company, or until
it is advised in writing by the Company that the use of the prospectus may
be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the prospectus. If so
directed by the Company, such stockholder will deliver to the Company all
copies of the prospectus covering such Registrable Shares current at the
time of receipt of such notice of suspension.
5. Indemnification.
5.1 Indemnification by the Company. The Company will, and hereby
does, indemnify and hold harmless, Stockholder and each of the Shelf
Stockholders, as the case may be, and their respective directors, officers,
partners, agents and Affiliates and each other Person who participates as
an underwriter in the offering or sale of the Stockholder Shares or the
Shelf Shares, as the case may be, and each other Person, if any, who
controls Stockholder or a Shelf Stockholder, as the case may be, or any
such underwriter within the meaning of the 1933 Act, insofar as losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which Stockholder Shares held
by Stockholder or Shelf Shares held by the Shelf Stockholders, as the case
may be, were registered under the 1933 Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment
or supplement thereto, or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made
not misleading, and the Company will reimburse Stockholder or the Shelf
Stockholders, as the case may be, and each such director, officer, partner,
agent or Affiliate, underwriter and controlling Person for any legal or any
other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding;
provided, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company through an instrument executed by or on behalf of Stockholder
or a Shelf Stockholder (as the case may be) or such underwriter, as the
case may be, specifically stating that it is for use in the preparation
thereof; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of
Stockholder Shares or any other Person, if any, who controls such
underwriter within the meaning of the 1933 Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may be
then supplemented or amended, to the Person asserting an untrue statement
or alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Stockholder Shares to such Person
if such statement or omission was corrected in such final prospectus so
long as such final prospectus, and any amendments or supplements thereto,
have been furnished to such underwriter. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf
of Stockholder or the Shelf Stockholders, as the case may be, or any such
underwriter, director, officer, partner, agent or Affiliate or controlling
Person and shall survive the transfer of such securities by Stockholder or
the Shelf Stockholders, as the case may be.
5.2 Indemnification by Stockholders. Stockholder and each Shelf
Stockholder will, and hereby does, severally indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 5.1) the
Company, and each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the meaning of
the 1933 Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company through
an instrument duly executed by Stockholder or such Shelf Stockholder, as
the case may be, specifically stating that it is for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, that the
liability of any stockholder under this Section 5.2 shall be limited to the
amount of proceeds received by such stockholder in the offering giving rise
to such liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any
such director, officer or controlling Person and shall survive the transfer
of such securities by such stockholder.
5.3 Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
5 such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 5, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties is reasonably likely to exist in respect of such
claim, the indemnifying party shall be entitled to participate in and, to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof and the indemnified party notifies the indemnifying party of such
indemnified party's judgment and the basis therefor. No indemnifying party
shall be liable for any settlement of any action or proceeding effected
without its written consent, which consent shall not be unreasonably
withheld. No indemnifying party shall, without the written consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation.
5.4 Contribution. If the indemnification provided for in this
Section 5 shall be judicially determined (by the entry of final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) to be unavailable to a
party seeking indemnification under Section 5.1 or 5.2 hereof in respect of
any loss, claim, damage or liability, or any action in respect thereof,
then, in lieu of the amount paid or payable under Section 5.1 or Section
5.2 hereof, the indemnified party and the indemnifying party under Section
5.1 or Section 5.2 hereof shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating the same), (i) in such proportion
as is appropriate to reflect the relative fault of the Company, on the one
hand, and Stockholder and each Shelf Stockholder, on the other hand, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company, on the one hand, and Stockholder and each Shelf Stockholder, on
the other hand, from the offering of the securities covered by such
registration statement. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld.
5.5 Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 5
(with appropriate modifications) shall be given by the Company, on the one
hand, and Stockholder and each Shelf Stockholder, on the other hand, with
respect to any required registration or other qualification of securities
under any federal or state law or regulation of any governmental authority
other than the 1933 Act.
6. Information from Stockholder. In the event that either the
Stockholder or a Shelf Stockholder fails to furnish to the Company such
information regarding itself, the shares of Registrable Securities held by
it, or the intended method of disposition of such securities as may be
required to effect the registration of the Registrable Securities, the
Company shall not be obligated to take any action pursuant to this
Agreement with respect to such Stockholder Shares or Shelf Shares held by
such Stockholder or Shelf Stockholder.
7. Expenses of Registration. The Company shall pay all registration,
filing and qualification fees (including SEC filing fees and the listing
fees of the Nasdaq Stock Market or any stock exchange on which the Company
securities are traded) attributable to the Stockholder Shares and Shelf
Shares registered under this Agreement, and any legal, accounting or other
professional fees or expenses incurred by the Company (collectively,
"Registration Expenses"). The Stockholder and each Shelf Stockholder, as
the case may be, shall pay all underwriting discounts, selling commissions
and stock transfer taxes, if any, attributable to the sale of such
Stockholder Shares or Shelf Shares, as the case may be, registered by such
stockholder and any legal, accounting or other professional fees incurred
by such stockholder. The Company shall pay all expenses in connection with
any registration initiated pursuant to Section 2 which is withdrawn
(pursuant to a written request made with the SEC pursuant to Rules 477 or
478 of the 1933 Act or any successor rules thereto), delayed or abandoned,
except if such withdrawal, delay or abandonment is a result of: (i) a
request by the Stockholder or the Shelf Stockholders to withdraw, delay or
abandon such registration; (ii) the failure to comply with the requirements
of Section 6 hereof by the Stockholder or Shelf Stockholder, as applicable;
or (iii) any withdrawal, delay or abandonment of the registration caused by
the fraud, material misstatement or omission of a material fact by the
Stockholder or a Shelf Stockholder, as applicable, to be included or
required to be included in such registration.
8. Rule 144. In the event that Stockholder or a Shelf Stockholder
may, under Rule 144, resell or otherwise dispose of all such stockholder's
Stockholder Shares or Shelf Shares, as the case may be, in a ninety (90)
day period without registration under the 1933 Act, the registration rights
granted under this Agreement to such stockholder and the obligations of the
Company hereunder (other than its obligations under Sections 5 and 7 and
this Section 8) to such stockholder, shall be of no further force and
effect whatsoever without any further action on the part of the Company or
such stockholder; provided that the registration rights provided hereunder
shall be reinstated as to the Stockholder or a Shelf Stockholder if at any
time the provisions of Rule 144(k) do not permit the Stockholder or such
Shelf Stockholder to dispose of all of the Stockholder Shares or such Shelf
Stockholder's shares, as the case may be, then held by it in any
three-month period; provided, however, that such reinstatement shall exist
for only so long as the Stockholder or such Shelf Stockholder, as
applicable, cannot sell all of the Stockholder Shares or such Shelf
Stockholder's shares as are then held by the Stockholder or such Shelf
Stockholder during any three-month period pursuant to Rule 144(k).
9. Miscellaneous.
9.1 Notices. All notices and other communications required or
permitted hereunder shall be made in the manner and to addresses set forth
in the Reorganization Agreement, in the case of the Stockholder and the
Company, and, in the case of Shelf Stockholders, in the manner set forth in
the Reorganization Agreement to the address of such Shelf Stockholder set
forth on Exhibit A hereto.
9.2 Interpretation. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by
the words "without limitation." The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
9.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
9.4 Entire Agreement. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced
herein: (a) constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof; and (b) other than the rights expressly set
forth herein with respect to the Shelf Stockholders, are not intended to
confer upon any other person any rights, remedies, obligations or
liabilities hereunder.
9.5 Assignment. This Agreement, and the rights and obligations
hereunder, shall not be assigned by the Stockholder or any Shelf
Stockholder without the prior written consent of the Company, which consent
shall not be unreasonably withheld; provided that the Stockholder shall be
permitted to assign its rights and obligations under this Agreement, in
whole or in part, to any wholly-owned direct or indirect subsidiary of the
Stockholder in connection with the transfer of at least 1,000,000 Shares to
such subsidiary. Any assignment of rights or delegation of duties under
this Agreement by the Stockholder or a Shelf Stockholder without the prior
written consent of the Company shall be void ab initio. This Agreement
shall be binding upon and inure to the benefit of the Company and its
respective successors and assigns.
9.6 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder
of this Agreement will continue in full force and effect and the
application of such provision to other persons or circumstances will be
interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such
void or unenforceable provision.
9.7 Attorneys' Fees. In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit
shall be entitled to receive a reasonable sum for its attorneys' fees and
all other reasonable costs and expenses incurred in such action or suit.
9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of
conflicts of laws thereof. Each of the parties hereto agrees that process
may be served upon them in any manner authorized by the laws of the State
of Delaware for such persons and waives and covenants not to assert or
plead any objection which they might otherwise have to such jurisdiction
and such process.
9.9 Term. Except as expressly provided herein, the rights and
obligations hereunder shall terminate ten (10) years from the date of this
Agreement.
9.10 Shelf Stockholders. Acceptance of any benefit under this
Agreement by any Shelf Stockholder shall render it a party hereto and shall
obligate it to all provisions with respect to Shelf Stockholders hereunder.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
XXXXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name:
Title:
CENDANT CORPORATION
By: /s/ Xxxx X. Xxxx
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Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
