EXHIBIT 1.1
FORM OF
SELLING SHAREHOLDER AGREEMENT
This Selling Shareholder Agreement (the "Agreement") , dated as of April
___, 2003, by and among Xxxxxx Xxxxxxx Corporation, a Delaware corporation (the
"Company"), Credit Lyonnais, a corporation organized under the laws of France
(the "Selling Shareholder"), and Credit Lyonnais Securities (USA) Inc. (the
"Selling Shareholder Agent", and together with the Selling Shareholder, the
"Selling Shareholder Parties").
WHEREAS, the Company has agreed to register with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), 1,006,500 shares (the "Shares") of the Company's
common stock, par value $.01 per share (the "Common Stock"), owned by the
Selling Shareholder so that the Selling Shareholder may sell such shares from
time to time; and
WHEREAS, the Company has filed with the Commission a registration statement
on Form S-3 with respect to such Shares (the "Registration Statement");
NOW, THEREFORE, in consideration of, and reliance upon, the respective
representations, warranties and agreements herein contained, and intending to be
legally bound, the parties hereto agree as follows:
1. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Selling Shareholder Parties that:
a. The Company meets the requirements for the use of Form S-3 under
the Securities Act for the secondary sale of securities. The Registration
Statement has been declared effective by the Commission and at the time it
became effective the Registration Statement complied with Rule 415 under
the Securities Act. No stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission.
b. (i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus (as defined below) complied or
will comply when so filed in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission promulgated
thereunder, (ii) the Registration Statement, when it became effective, did
not contain, and as amended or supplemented, if applicable, will not
contain any 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, (iii) the Registration Statement and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to the Selling
Shareholder Parties furnished to the Company in writing by the Selling
Shareholder Parties expressly for use therein, which information is
attached hereto on Exhibit 1b. The term "Prospectus" as used herein shall
mean the prospectus forming a part of the Registration Statement in the
form first filed pursuant to Rule 424(b) under the Securities Act as such
prospectus is supplemented at the relevant time, and including all
information incorporated by reference therein.
c. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in, or incorporated by reference
in, the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
d. Each subsidiary of the Company listed on Exhibit 1d hereto (the
"Subsidiaries"), has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as currently conducted and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and the Subsidiaries, taken as a whole; and all of the
issued shares of capital stock of each Subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims. The Subsidiaries constitute all of
the Company's material subsidiaries.
e. This Agreement has been duly authorized, executed and delivered by
the Company.
f. The shares of Common Stock outstanding on the date hereof have been
duly authorized and are validly issued, fully paid and non-assessable.
g. The consolidated financial statements and financial schedules of
the Company included or incorporated by reference in the Registration
Statement and the Prospectus have been prepared in conformity with
accounting principles generally accepted in the United States applied on a
consistent basis, are consistent in all material respects with the books
and records of the Company, and accurately present in all material respects
the consolidated financial position, results of operations and cash flow of
the Company and its subsidiaries as of and for the periods covered thereby.
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h. Neither the Company nor any of its Subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business, including without limitation from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as disclosed in or contemplated by the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, other than as disclosed in the
Prospectus, there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries, the Company and
its subsidiaries have not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material adverse
change in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries considered as a whole, otherwise than as disclosed or
incorporated by reference in or contemplated by the Prospectus.
i. There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or the Selling Shareholder for a brokerage commission, finder's fee
or other like payment.
j. Other than with the Selling Shareholder, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Securities
Act.
k. Neither the Company nor any of its Subsidiaries (i) is in violation
of its charter or by-laws, partnership agreement, limited liability company
agreement or other organizational documents, (ii) is in default (and no
event has occurred which, with notice or lapse of time or both, would
constitute such a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries) under or pursuant to, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its property or
assets is subject or (iii) is in violation in any respect of any statute,
including, without limitation, any certification or other requirement of
the Xxxxxxxx-Xxxxx Act of 2002, or any judgment, decree, order, rule or
regulation of any court or governmental or regulatory agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
properties or assets, except any violation or default that would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
l. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws
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of the Company or any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any Subsidiary, and no consent, approval, authorization or order of or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement.
m. There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its Subsidiaries is
subject that are required to be described in, or incorporated by reference
in, the Registration Statement or the Prospectus and are not so described
or incorporated by reference or any statutes, regulations, contracts or
other documents that are required to be described in, or incorporated by
reference in, the Registration Statement or as exhibits to the Registration
Statement that are not described, flied or incorporated as required.
n. The Company is not, and will not be required to register as, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
o. The Company and its Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole. There has been no storage, disposal,
generation, transportation, handling or treatment of hazardous substances
or solid wastes by the Company and its Subsidiaries, (or to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any
of the property now or previously owned or leased by the Company and its
Subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which requires remedial
action by the Company and its Subsidiaries under any applicable law,
ordinance, rule, regulation order, judgment, decree or permit, except for
any violation or remedial action which would not result in, or which would
not be reasonably likely to result in, singularly or in the aggregate with
all such violations and remedial actions, a material adverse effect on the
Company and its Subsidiaries, taken as a whole, and there has been no
spill, discharge, leak, emissions, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such
property of any solid wastes or hazardous substances due to or caused by
the Company and its Subsidiaries, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
result in or would not be reasonably likely to result in, singularly or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings
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and releases, a material adverse effect on the Company and its
Subsidiaries, taken as a whole. For purposes of this provision, the terms
"hazardous substances" and "solid wastes" shall have the meanings specified
in any applicable Environmental Laws.
p. There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
q. The Company and its Subsidiaries own or possess adequate patent
rights or licenses or other rights to use patent rights, inventions,
trademarks, service marks, trade names, copyrights, technology and know-how
necessary to conduct the general business now or proposed to be operated by
them as described in, or incorporated by reference in, the Prospectus,
except where failure to do so would not have a material adverse effect on
the Company and its Subsidiaries, taken as a whole; neither the Company nor
any of its Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any patent, patent
rights, inventions, trademarks, service marks, trade names, copyrights,
technology or know-how which, singularly or in the aggregate, would have a
material adverse effect on the Company and its Subsidiaries, taken as a
whole.
r. The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the businesses in which they are engaged;
neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for; and except as described in, or incorporated
by reference in, the Prospectus, neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole.
s. The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and the outstanding shares of Common Stock (including the
Shares) are listed for quotation on the New York Stock Exchange (the
"NYSE"), and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock under the
Exchange Act or de-listing the Common Stock from the NYSE, nor has the
Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
2. Representations and Warranties of the Selling Shareholder Parties. Each
of the Selling Shareholder Parties hereby represents and warrants to the Company
that:
a. The address of the Selling Shareholder is: 00, xxxxxxxxx xxx
Xxxxxxxx, 00000 Xxxxx, Xxxxxx.
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b. The Selling Shareholder owns all 1,006,500 Shares.
c. The Selling Shareholder Parties have not entered into any
arrangements with respect to the disposition of the Shares.
d. All information specifically with respect to the Selling
Shareholder Parties furnished to the Company by or on behalf of the Selling
Shareholder Parties for use in connection with the preparation of the
Registration Statement and the Prospectus (including information
incorporated by reference in the Registration Statement from each report
filed under the Exchange Act) is true and correct in all material respects
and does not omit any material fact necessary to make such information not
misleading.
e. The Selling Shareholder Parties have not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than the Prospectus or other material
permitted by the Securities Act.
3. Covenants of the Company. The Company covenants with the Selling
Shareholder Parties as follows:
a. The Company will furnish the Selling Shareholder Parties, without
charge, two signed copies of the Registration Statement (excluding exhibits
thereto and documents incorporated by reference therein) and will furnish
the Selling Shareholder Parties without charge as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as the
Selling Shareholder Parties may reasonably request.
b. Before amending or supplementing the Registration Statement or the
Prospectus, the Company will furnish to the Selling Shareholder Parties a
copy of each such proposed amendment or supplement and will not file any
such proposed amendment or supplement to which the Selling Shareholder
Parties reasonably object.
c. If during the period which delivery of the Prospectus by the
Selling Shareholder Parties or any dealer to the purchasers of the Common
Stock is required under the Securities Act, any event shall occur or
condition exist which makes it necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Selling Shareholder
Parties, it is necessary to amend or supplement the Prospectus to comply
with applicable law, the Company will promptly prepare, file with the
Commission and furnish, at its own expense, to the Selling Shareholder
Parties, to dealers whose names and addresses the Selling Shareholder
Parties will furnish to the Company and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements
in the Prospectus as so amended or supplemented will not, in the light of
the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
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d. The Company will make generally available to its security holders
and to the Selling Shareholder Parties as soon as practicable, but in any
event not later than fifteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Securities
Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) in reasonable detail, covering a period of at least 12
consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall comply with the requirements of
Section 11(a) of the Securities Act and the rules and regulations
thereunder (including Rule 158).
e. The Company will not offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend or otherwise
transfer or dispose of, directly or indirectly, or enter into any swap or
other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of shares of Common Stock, whether
any transaction is to be settled by delivery of shares of Common Stock or
such other securities, in cash or otherwise, or file with the Commission a
registration statement under the Securities Act relating to, any additional
shares of its Common Stock or securities convertible into or exchangeable
or exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, pledge, sale, contract, disposition or
filing, without the prior written consent of the Selling Shareholder for 30
days after the date hereof other than grants of stock and options relating
to stock-based benefit plans in existence on the date of this Agreement,
provided, however, the Company may enter into private sales of its
securities in compliance with the Securities Act and the rules and
regulations thereunder, provided that the Company receives a written
opinion of counsel to the effect that any such sales will not be integrated
with any sales or other dispositions of the Shares made by the Selling
Shareholder Parties.
f. From the date of this Agreement through the end of the period
during which delivery of the Prospectus by the Selling Shareholder Parties
and any dealer to the purchasers of the Shares is required under the
Securities Act, the Company will advise the Selling Shareholder Parties
promptly of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, or of any notification of the suspension of
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceedings for that purpose, and will also advise
the Selling Shareholder Parties promptly of any request of the Commission
for amendment or supplement of the Registration Statement or the Prospectus
or for additional information.
g. During the period when the Prospectus is required to be delivered
under the Securities Act, the Company will file all documents required to
be filed with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act and the
rules and regulations thereunder.
4. Indemnification and Contribution.
a. The Company agrees to indemnify and hold harmless the Selling
Shareholder, the Selling Shareholder Agent, each person, if any, who may be
deemed to
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be an "Underwriter" within the meaning of the Securities Act, each person,
if any, who controls the Selling Shareholder or the Selling Shareholder
Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each partner, principal, member,
officer, director, employee and agent of the Selling Shareholder Parties,
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim whether such action or claim is commenced or threatened) caused by
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplement's thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to either of
the Selling Shareholder Parties furnished to the Company in writing by the
Selling Shareholder Parties expressly for use therein.
b. The Selling Shareholder Parties agree to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company
to the Selling Shareholder Parties, but only with respect to information
relating to the Selling Shareholder Parties furnished to the Company in
writing by the Selling Shareholder Parties expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
c. In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to either Section 4(a) or 4(b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of all indemnified parties in connection with any proceeding
or related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred, unless and only to the extent to the
representation of all indemnified parties would be inappropriate due
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to actual or potential differing interests among them. Such firm shall be
designated in writing by either of the Selling Shareholder Parties, in the
case of parties indemnified pursuant to Section 4(a) above, and by the
Company, in the case of parties indemnified pursuant to Section 4(b) above.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel reasonably incurred as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 20
days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party unless and only to the extent such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
d. To the extent the indemnification provided for in Section 4(a) or
4(b) is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, 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 Company on the one hand and of the Selling
Shareholder Parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and the Selling Shareholder Parties on the
other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Selling Shareholder Parties and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
e. The Company and the Selling Shareholder Parties agree that it would
not be just or equitable if contribution pursuant to this Section 4 were
determined by any other method of allocation that does not take account of
the equitable considerations referred to in Section 4(d). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4, the Selling Shareholder
Parties shall not
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be required to contribute any amount in excess of the amount by which the
total price at which the Common Stock is sold to the public exceeds the
amount of any damages that the Selling Shareholder Parties have otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. 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 remedies provided for in this
Section 4 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or
inequity.
f. The indemnity and contribution provisions contained in this Section
4 and the representations, warranties and other statements of the Company
and the Selling Shareholder Parties contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, and (ii) any investigation made by or on
behalf of the Selling Shareholder Parties or any person controlling either
of the Selling Shareholder Parties or the Company, its officers or
directors or any person controlling the Company.
5. Limitation on Sales of the Shares. Notwithstanding any other provision
in this Agreement to the contrary, if the Company's board of directors in good
faith determines in its sole discretion that public sales or distributions of
the Shares would interfere in any material respect with any transaction
involving the Company that, in the sole discretion of the Company's board of
directors, is material to the Company, then the Company's board of directors may
require that the Selling Shareholder refrain from effecting any public sales or
distributions of the Shares until the interference no longer exists.
6. Expenses. The Company agrees to pay the following costs and expenses and
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
of the Registration Statement, and each amendment or supplement thereto, if any;
(ii) the printing or reproduction and delivery (including postage, air freight
charges and charges for counting and packaging) to the Selling Shareholder of
such copies of the Prospectus as may be reasonably requested for use in
connection with the offering and sale of the Common Stock; (iii) the fees and
expenses of the Company's accountants and counsel; (v) the fees and expenses of
the Selling Shareholder Parties' counsel to the extent such fees exceed $20,000,
provided, however, the Company shall not be liable for any fees and expenses
related to the Selling Shareholder Parties' counsel in excess of an aggregate of
$70,000 (with the result that the Company will not be liable for more than a
total of $50,000), and (v) the performance by the Company of its other
obligations under this Agreement.
7. Notices. Notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered :
if to the Company:
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx
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with a copy to:
Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
if to the Selling Shareholder,
Credit Lyonnais
c/o Credit Lyonnais New York Branch
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
if to the Selling Shareholder Agent,
Credit Lyonnais Securities (USA), Inc.
1301 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
8. Misc.
a. Entire Agreement. This Agreement constitutes the entire
understanding between the parties regarding the subject matter of this
Agreement, and may be altered or changed only by written agreement of the
parties.
b. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements
of the Company, and the Selling Shareholder Parties, set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Selling Shareholder
Parties or any of their partners, principals, members, officers or
directors or any controlling persons, or made by or on behalf of the
Company or any of its officers, directors or controlling persons.
c. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving affect to
the principals of conflicts of laws. The Company irrevocably submits to the
jurisdiction of any court of the State of New York or the United States
District Court of the Southern District of the State of New York for the
purpose of any suit, action or other proceeding arising out of this
Agreement or the transactions contemplated hereby, which is brought by or
against the Company. Each of the Company (and, to the extent permitted by
law, on behalf of the Company's equity holders and creditors) and the
Selling Shareholder Parties hereby knowingly, voluntarily and irrevocably
waives any right it may have to a trial by jury in respect of any claim
based upon, arising out of or in connection with the indemnification
provisions in Section 4.
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d. Counterparts. This Agreement may be executed in one or more
counterparts, and if so executed shall together constitute a single
instrument.
e. Headings. The headings and captions of this Agreement are inserted
for convenience of reference only and shall not be deemed a part hereof or
used in the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
The Company
XXXXXX XXXXXXX CORPORATION
By:
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Title:
The Selling Shareholder
CREDIT LYONNAIS
By:
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Title:
The Selling Shareholder Agent
CREDIT LYONNAIS SECURITIES (USA) INC.
By:
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Title:
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