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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, is made and entered into as of
November 3, 2000, by and among The Xxxxxxx Xxxxxx Corporation, a Delaware
corporation ("TCSC"), and the individuals set forth on the signature page hereof
(the "Shareholders").
R E C I T A L S
WHEREAS, TCSC, Xxxxxx Holdings, Inc., a Delaware corporation and
wholly-owned subsidiary of TCSC ("Schwab") and Xxxxxxx Xxxxxx & Co., Inc., a
California corporation and wholly-owned subsidiary of Schwab ("CS&Co."), have
entered into an Agreement and Plan of Merger, dated as of November 3, 2000 (the
"Merger Agreement") (capitalized terms used herein and not defined shall have
the meanings ascribed thereto in the Merger Agreement), with Chicago Investment
Analytics, Inc., an Illinois corporation ("CIA"), and the Shareholders, which
provides, upon the terms and subject to the conditions set forth therein, for
the merger of CIA with and into the Schwab (the "Merger"); and
WHEREAS, in the Merger, the Shareholders will receive shares (the
"Merger Shares") of common stock, par value $.01 per share, of TCSC ("TCSC
Common Stock");
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement, in addition to the
definitions set forth above and elsewhere herein, the following terms shall have
the following respective meanings:
"Affiliate" of a Holder shall mean a person who controls, is
controlled by or is under common control with such Holder or, the spouse
or children (or a trust exclusively for the benefit of a spouse and/or
children) of such Holder or, in the case of a Holder which is a
partnership, its partners.
"Commission" shall mean the United States Securities and
Exchange Commission and any successor agency.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Holder" shall mean each Shareholder or any transferee or
assignee thereof to whom the rights under this Agreement are assigned in
accordance with the provisions of Section 9 hereof.
"Person" means an individual, corporation, partnership,
limited partnership, syndicate, person (including, without limitation, a
"person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government.
"Register," "registered" and "registration" shall 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.
"Registrable Stock" shall mean (a) the Merger Shares, (b) any
shares of TCSC Common Stock issued as a dividend or other distribution
with respect to, or in exchange for, or in replacement of, any of the
Merger Shares, and (c) any shares of TCSC Common Stock issued by way of
a stock split of the Merger Shares referred to in clauses (a) or (b)
above. For purposes of this Agreement, any Registrable Stock shall cease
to be Registrable Stock when (i) a registration statement covering such
Registrable Stock has been declared effective and such Registrable Stock
has been disposed of pursuant to such effective registration statement,
(ii) such Registrable Stock is sold by a person in a transaction in
which the rights under the provisions of this Agreement are not
assigned, or (iii) such Registrable Stock may be sold pursuant to Rule
144(k) (or any similar provision then in force, but not Rule 144A) under
the Securities Act without registration under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
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2. Restrictive Legend. Each certificate representing Merger Shares
shall, except as otherwise provided in this Section 2, be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT"). SUCH SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OR AN OPINION OF
LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE XXXXXXX XXXXXX CORPORATION THAT SUCH
REGISTRATION IS NOT REQUIRED."
A certificate shall not bear such legend if in the opinion of
counsel satisfactory to TCSC or TCSC shall determine that, the securities being
sold thereby may be publicly sold without registration under the Securities Act
or the transfer of such securities is permitted under the provisions of Rule 144
or Rule 144A (or any rule permitting public sale without registration under the
Securities Act).
3. Registration. As soon as reasonably practicable after the
Effective Time (but in no event later than thirty (30) business days after the
date of this Agreement), TCSC shall prepare and file with the Commission a
registration statement on Form S-3 or any successor thereto, signed, pursuant to
Section 6 (a) of the Securities Act, by the officers and directors of TCSC, with
respect to the Merger Shares. TCSC shall use its reasonable best efforts to
register under the Securities Act, for public sale, such Registrable Stock. In
connection therewith, TCSC shall, as expeditiously and as reasonably possible:
a. use its reasonable best efforts to cause such registration
statement to become effective as soon as possible after the filing thereof and
to remain effective through and including the first year anniversary of the
Closing Date;
b. prepare and file with the Commission such amendments and
supplements to such registration statement, signed, pursuant to Section 6 (a) of
the Securities Act, by the officers and directors of TCSC, and the prospectus
used in connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all Registrable Stock
covered by such registration statement;
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c. furnish to the Holders such numbers of copies of the
registration statement and the prospectus included therein (including each
preliminary prospectus and any amendments or supplements thereto) in conformity
with the requirements of the Securities Act and such other documents and
information as they may reasonably request;
d. use its reasonable best efforts to register or qualify the
Registrable Stock covered by such registration statement under such other
securities or blue sky laws of such jurisdictions within the United States and
Puerto Rico as required by law for the distribution of the Registrable Stock
covered by the registration statement; provided, however, that TCSC shall not be
required in connection therewith or as a condition thereto to qualify to do
business in or to file a general consent to service of process in any
jurisdiction wherein it would not but for the requirements of this paragraph (d)
be obligated to do so; and provided, further, that TCSC shall not be required to
qualify such Registrable Stock in any jurisdiction in which the securities
regulatory authority requires that any Holder submit any shares of its
Registrable Stock to the terms, provisions and restrictions of any escrow,
lockup or similar agreement(s) for consent to sell Registrable Stock in such
jurisdiction unless such Holder agrees to do so;
e. promptly notify each Holder for whom such Registrable Stock
is covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and at the request of any such Holder
promptly prepare and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to TCSCs of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
f. enter into customary agreements and take such other actions
as are reasonably required in order to expedite or facilitate the disposition of
the Registrable Stock to be so included in the registration statement;
g. otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission;
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h. use its reasonable best efforts to list the Registrable
Stock covered by such registration statement with any securities exchange on
which TCSC Common Stock is then listed; and
i. after the effectiveness of the registration statement,
cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing the Registrable Stock to be sold, which Certificates
shall not bear any restrictive legends other than restrictive legends still
required to be imposed by any of the Transaction Agreements (as defined in the
Merger Agreement).
4. Suspension of Trading. Notwithstanding any other provision of
this Agreement, TCSC shall have the right at any time to require that all
Holders suspend further open market offers and sales of Registrable Stock
whenever, and for so long as, in the reasonable judgment of TCSC in good faith
based upon the advice of counsel satisfactory to the Holders of a majority of
the Registrable Stock (it being agreed that Howard, Rice, Nemerovski, Canady,
Xxxx & Xxxxxx, a Professional Corporation shall be satisfactory), there is in
existence material undisclosed information or events with respect to TCSC (the
"Suspension Right") such that the registration statement would 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 not misleading
in light of the circumstances under which they were made. In the event TCSC
exercises the Suspension Right, such suspension will continue for such period of
time reasonably necessary for disclosure to occur at a time that is not
materially detrimental to TCSC or until such time as the registration statement
does not include 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 not misleading in light of the circumstances under which they were made,
each as determined in good faith by TCSC. TCSC will promptly give the Holders
notice, in a writing signed by an executive officer of TCSC, of any exercise of
the Suspension Right. TCSC agrees to notify the Holders promptly upon
termination of the Suspension Right. Notwithstanding the foregoing, under no
circumstances shall TCSC be entitled to exercise the Suspension Right for more
than ninety calendar days in any twelve month period. The period during which
TCSC is required to keep the registration statement effective shall be extended
by a period equal in length to any and all periods during which the Suspension
Right is in effect.
5. Furnish Information. It shall be a condition precedent to the
obligations of TCSC to take any action pursuant to this Agreement that the
Holders shall furnish to TCSC such information regarding themselves, the
Registrable Stock held by them, and the intended method of disposition of such
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securities as TCSC shall reasonably request and as shall be required in
connection with the action to be taken by TCSC.
6. Expenses of Registration. All expenses incurred in connection
with the registration pursuant to this Agreement, including without limitation
all registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance), fees of the National Association of Securities Dealers, Inc. or
listing fees, messenger and delivery expenses, all fees and expenses of
complying with state securities or blue sky laws, reasonable fees and
disbursements of counsel for TCSC, and the fees and disbursements of one counsel
for the Holders (which counsel shall be selected by the Holders holding a
majority of the Registrable Stock and shall be satisfactory to TCSC), shall be
paid by TCSC. The parties agree that all underwriting discounts and commissions
shall be the responsibility of the Holders.
7. Indemnification.
a. To the extent permitted by applicable law, TCSC shall
indemnify and hold harmless each Holder, such Holder's directors and officers,
any underwriter (as defined in the Securities Act), and each person, if any, who
controls such Holder or underwriter within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Securities Act or any other applicable state
or federal law, insofar as such losses, claims, damages or liabilities (or
proceedings in respect thereof) arise out of or are based on any untrue or
alleged untrue statement of any material fact contained in such registration
statement on the effective date thereof (including any prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements 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, and shall reimburse each such Holder, such
Holder's directors and officers, such underwriter or controlling person for any
legal or other expenses reasonably incurred by them (but not in excess of
expenses incurred in respect of one counsel and one local counsel for all of
them unless, in the reasonable judgment of an indemnified party there is
potential conflict of interest between any indemnified parties, which
indemnified parties may be represented by separate counsel and local counsel) in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of TCSC (which consent shall not be unreasonably withheld);
provided, further, that TCSC shall not be liable to any Holder, such
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Holder's directors and officers, underwriter or controlling person in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in connection with such registration
statement, preliminary prospectus, final prospectus or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by any such Holder, such
Holder's directors and officers, underwriter or controlling person. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any such Holder, such Holder's directors and officers,
underwriter or controlling person, and shall survive the transfer of such
securities by such Holder.
b. To the extent permitted by applicable law, each Holder
shall indemnify and hold harmless TCSC, each of its directors and officers, each
person, if any, who controls TCSC within the meaning of the Securities Act, and
any underwriter (within the meaning of the Securities Act) for TCSC against any
losses, claims, damages or liabilities, joint or several, to which TCSC or any
such director, officer, controlling person or underwriter may become subject,
under the Securities Act or any other applicable state or federal law, insofar
as such losses, claims, damages or liabilities (or proceedings 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 on the
effective date thereof (including any prospectus filed under Rule 424 under the
Securities Act or any amendments or supplements 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, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in such registration statement in reliance upon and in conformity with written
information furnished expressly by or on behalf of such Holder for use in
connection with such registration; and each such Holder shall reimburse any
legal or other expenses reasonably incurred by TCSC or any such director,
officer, controlling person, agent or underwriter (but not in excess of expenses
incurred in respect of one counsel and one local counsel for all of them unless,
in the reasonable judgment to of an indemnified party, there is a conflict of
interest between any indemnified parties, which indemnified parties may be
represented by separate counsel and local counsel) in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 7(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld), and provided,
further, that the liability of each Holder hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the
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net proceeds from the sale of the shares sold by such Holder under such
registration statement bears to the total net proceeds from the sale of all
securities sold thereunder, but not in any event to exceed the net proceeds
received by such Holder from the sale of Registrable Stock covered by such
registration statement.
c. Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and assume the defense thereof with counsel selected by the
indemnifying party and reasonably satisfactory to the indemnified party;
provided, however, that the exercise of the foregoing right shall be conditioned
upon the written acknowledgement of the indemnifying party to the indemnified
party of the indemnifying party's obligation hereunder to indemnify the
indemnified party for any losses arising from such action; and provided further,
that in such event, the indemnified party shall have the right to retain its own
counsel and local counsel, with all fees and expenses thereof to be paid by such
indemnified party, and to be apprised of all progress in any proceeding the
defense of which has been assumed by the indemnifying party. The failure to
notify an indemnifying party promptly of the commencement of any such action,
shall only release the indemnifying party from any of its obligations under this
Section 7(c) if, and only to the extent that, such indemnifying party is
materially prejudiced by such failure, but the omission to so notify the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section.
d. To the extent any indemnification by an indemnifying party
is prohibited or limited by law, the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
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e. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The parties
agree that to the extent any of the provisions of this Section 7 conflict with
the provisions of Article XI of the Merger Agreement, the provisions of this
Section 7 shall supersede such conflicting provisions.
8. Transfer of Registration Rights. The rights of any Holder under
this Agreement with respect to any Registrable Stock may be transferred to any
transferee of such Registrable Stock; provided, however, that (i) the
transferring Holder shall give TCSC written notice at or prior to the time of
such transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
transferred; (ii) such transferee shall agree in writing, in form and substance
reasonably satisfactory to TCSC, to be bound as a Holder by the provisions of
this Agreement; and (iii) immediately following such transfer the further
disposition of such securities by such transferee is restricted under the
Securities Act. Except as set forth in this Section 8, no transfer of
Registrable Stock shall cause such Registrable Stock to lose such status.
9. Successors and Assigns. Except as otherwise expressly provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto.
Except as expressly provided in this Agreement, nothing in this Agreement,
express or implied, is intended to confer upon any person other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement.
10. Counterparts; Titles. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement. The titles of the Sections of this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
11. Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be delivered in person or mailed by certified or
registered mail, return receipt requested, overnight courier or facsimile,
directed to (a) TCSC at The Xxxxxxx Xxxxxx Corporation, 000 Xxxxxxxxxx Xxxxxx,
Xxx
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Xxxxxxxxx, XX 00000, attention: Xxxxxxxxxxx X. Xxxxx, facsimile 415/636-5877,
with a copy to Howard, Rice, Nemerovski, Canady, Xxxx & Rabkin, A Professional
Corporation at Three Xxxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, XX 00000,
attention: Xxxx X. Xxxxxx, facsimile 415/217-5910; or (b) to the Holders c/o
Chicago Investment Analytics, Inc., 000 XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX,
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the others. The giving of any notice
required hereunder may be waived in writing by the parties hereto. Every notice
or other communication hereunder shall be deemed to have been duly given or
served on the date on which personally delivered, or on the date actually
received.
12. Amendments and Waivers. Any provision of this Agreement may be
amended and the observance of any provision of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of TCSC and the Holders. Any
amendment or waiver effected in accordance with this Section 12 shall be binding
upon each Holder of any securities subject to this Agreement at the time
outstanding (including securities into which such securities are convertible),
each future Holder and all such securities, and TCSC. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or parties exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
13. Severability; Entire Agreement. If one or more provisions of
this Agreement are held to be unenforceable under applicable law, such
provisions shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provisions were so excluded and shall
be enforceable in accordance with its terms. All prior agreements of the parties
concerning the subject matter of this Agreement are expressly superseded by this
Agreement. This Agreement contains the entire Agreement of the parties
concerning the subject matter hereof. Any oral representations or modifications
of this Agreement shall be of no effect.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to
conflicts of law principles.
15. Forum; Waiver of Jury Trial.
a. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any California state or federal
court sitting in the City and County of San Francisco. The parties hereto hereby
(i) submit to the exclusive jurisdiction of any California state or federal
court
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sitting in the City and County of San Francisco for the purpose of any action or
proceeding arising out of or relating to this Agreement brought by any party
hereto, and (ii) waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the action or proceeding is brought in
an inconvenient forum, that the venue of the action or proceeding is improper,
or that this Agreement may not be enforced in or by any of the above-named
courts.
b. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY ACTIONS OR PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE XXXXXXX XXXXXX CORPORATION
By: /S/ Xxxxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SHAREHOLDERS:
By: /S/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
By: /S/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
By: /S/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
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