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EXHIBIT 2.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated November 5, 1999 (this
"Agreement"), between Xxxxxx Worldwide, Inc., a Delaware corporation
("Issuer"), and Xxxxxx Corporation, Inc., a Delaware corporation
("Stockholder").
WHEREAS, on November 5, 1999 (the "Distribution Date")
Stockholder intends to make a pro rata distribution to its stockholders of
approximately 90% of the shares of common stock, par value $0.01 per share, of
Issuer (the "Common Stock") outstanding as of the Distribution Date; and
WHEREAS, Stockholder intends to retain approximately 10% of
the shares of Common Stock outstanding as of the Distribution Date, and/or
transfer some or all of such retained shares to one or more of its direct or
indirect majority-owned subsidiaries and cause any such subsidiaries to retain
them (any such subsidiary, a "Seller" and such shares so retained by
Stockholder or any Seller, the "Shares");
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.01 Definitions. Capitalized terms used but not defined in
this Agreement have the respective meanings ascribed to such terms in the
Distribution Agreement. In addition, the following terms shall have the
following meanings:
(a) "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act or the Exchange Act, as applicable, whichever is the relevant
statute.
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(b) "Common Stock" has the meaning set forth in the Recitals.
(c) "Demand Registration Statement" has the meaning set forth
in Section 2.02(a).
(d) "Distribution Agreement" has the meaning set forth in the
Recitals.
(e) "Distribution Date" has the meaning set forth in the
Recitals.
(f) "Effective Period" has the meaning set forth in Section
2.02(c).
(g) "Exchange Act" means the Securities Exchange Act of 1934,
as amended or any similar successor federal statute and the rules and
regulations of the Commission thereunder, all as shall be in effect from time
to time.
(h) "Expenses" has the meaning set forth in Section 2.04.
(i) "Indemnified Party" has the meaning set forth in Section
2.05(c).
(j) "Indemnifying Party" has the meaning set forth in Section
2.05(c).
(k) "Inspectors" has the meaning set forth in Section
2.03(a)(iv).
(l) "Issuer" has the meaning set forth in the Preamble.
(m) "Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
(n) "Records" has the meaning set forth in Section
2.03(a)(iv).
(o) "Registered Shares" means the Shares of which resales by
the Stockholder and the Sellers have been registered under the Registration
Statement.
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(p) "Registration Statement" has the meaning set forth in
Section 2.02(b).
(q) "Release Date" has the meaning set forth in Section
2.01(a).
(r) "Securities" means the Shares until, in the case of any
particular Share, it is (i) disposed of in accordance with the Registration
Statement, (ii) distributed to the public pursuant to Rule 144 under the
Securities Act or (iii) no longer owned of record or beneficially by
Stockholder or any Seller.
(s) "Seller" has the meaning set forth in the Recitals.
(t) "Securities Act" means the Securities Act of 1933, as
amended or any similar successor federal statute and the rules and regulations
of the Commission thereunder, all as shall be in effect from time to time.
(u) "Shares" has the meaning set forth in the Recitals.
(v) "Shelf Registration Statement" has the meaning set forth
in Section 2.02(b).
(w) "Stockholder" has the meaning set forth in the Preamble.
(x) "Termination Date" has the meaning set forth in Section
2.02(c).
1.02 Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
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ARTICLE II
RESTRICTIONS AND RIGHTS
2.01 Restrictions. (a) During the period beginning on the
Distribution Date and ending on the 180th calendar day following the
Distribution Date (such date, the "Release Date"), Stockholder shall not, and
shall cause each Seller not to, offer, sell, contract to sell or otherwise
dispose of any of the Shares. Any contrary provision of this Agreement
notwithstanding, no provision of this Agreement shall prohibit, limit, restrict
or pertain to the offer, sale, disposition or voting of shares of Common Stock
(i) distributed in respect of shares of Stockholder's common stock granted
pursuant to Stockholder's performance share award program, (ii) held by any
savings plan in which directors, officers or employees of Stockholder may be
entitled to participate, or (iii) in connection with the transfer of any Shares
among Stockholder, any Seller and any other direct or indirect majority-owned
subsidiary of Stockholder.
(b) On any matter subject to a vote of stockholders of
Issuer, Stockholder shall vote or cause to be voted all of the Shares owned by
it or any Seller of record and/or of which it or any Seller is the beneficial
owner in proportion to the aggregate votes cast by other stockholders of Issuer
entitled to vote on such matter.
2.02 Registration Rights. (a) At any time during the period
of time following the 120th calendar day following the Distribution Date and
terminating on the second anniversary of the Distribution Date, Stockholder
shall have the right on two occasions to require Issuer to file with the
Commission a registration statement under the Securities Act providing for the
registration under the Securities Act of all or a portion of the Shares held by
Stockholder and any Sellers (each, a "Demand Registration Statement"), one of
which may be a Shelf Registration Statement. As promptly as practicable, but in
no event later than 30 calendar days after Issuer receives a written request
from Stockholder to file the Demand Registration Statement, Issuer shall file
with the Commission and thereafter cause to be declared effective promptly the
related Demand Registration Statement with respect to such
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number of Shares as Stockholder shall have demanded be registered.
(b) As promptly as practicable, but in no event later than 30
calendar days after Issuer receives a written request from Stockholder therefor
(which request must be given during the Effective Period, which written request
shall be counted as one of the two demand rights that Stockholder holds
pursuant to Section 2.02(a), Issuer shall cause to be filed in conformity with
the requirements of the Securities Act a "shelf" registration statement on any
appropriate form pursuant to Rule 415 under the Securities Act (including all
amendments thereto, a "Shelf Registration Statement" and, collectively with any
Demand Registration Statement, a "Registration Statement") in respect of the
resale from time to time by Stockholder and any Sellers, in the manner
designated by Stockholder in its request, of the number of Shares designated by
Stockholder in its request.
(c) Prior to filing any Registration Statement, Issuer will
furnish a draft thereof to Stockholder and shall not file such Registration
Statement without Stockholder's prior written consent, which consent shall not
be unreasonably withheld. Issuer shall use its reasonable efforts to cause such
Registration Statement to be declared effective under the Securities Act within
60 calendar days after the receipt of the request therefor and shall use its
reasonable efforts to keep such Registration Statement continuously effective
under the Securities Act during the period of time (such period of time, the
"Effective Period") following the initial effectiveness of the Registration
Statement and terminating upon the earlier to occur of the date that (i)
Stockholder and its direct and indirect majority-owned subsidiaries no longer
hold any Securities or (ii) is the second anniversary of the Distribution Date
(the "Termination Date"); provided, however, that the Termination Date shall be
extended by any period of time Stockholder or any Seller may be unable to
effect sales of Registered Shares under Sections 2.03(b) or 2.03(c). Each
Registration Statement shall relate only to the offer and sale of Shares by
Stockholder and any Sellers and shall not relate to the offer and sale of
securities other than the Shares or to offers or sales by any person or entity
other than Stockholder and any Sellers.
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2.03 Registration Procedures. (a) In connection with any
Registration Statement, and in accordance with the intended method or methods
of distribution of the Registered Shares as described in writing by Stockholder
and set forth in such Registration Statement or any prospectus supplement
contained therein, Issuer shall, as soon as reasonably practicable (and, in any
event, subject to the terms of this Agreement, at or before the time required
by applicable laws and regulations), but only during the Effective Period:
(i) promptly amend the Registration Statement and amend or
supplement the prospectus incorporated therein (A) to cover additional
Shares, in the event that the number of Shares shall be increased as a
result of a stock split or similar event following the issuance of any
Shares, (B) if required by the registration form utilized by Issuer
for the Registration Statement or by the instructions applicable to
such registration form or otherwise required by the Securities Act or
the rules and regulations thereunder, (C) at the request of
Stockholder, to describe the intended method or methods of
distribution of the Registered Shares pursuant to a written
description furnished by Stockholder, and (D) to the extent necessary
to ensure that the Registration Statement, any prospectus incorporated
therein, and any amendment or supplement thereto, will not 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 (in the case of any prospectus, in the light of the
circumstances under which they were made) not misleading; and use its
reasonable efforts to cause any such amendment to the Registration
Statement to be declared effective as soon as practicable after the
filing thereof; provided, however, that Issuer shall furnish copies of
such amendment at a reasonable time prior to the filing thereof and
shall not make any such filing to which Stockholder shall have
reasonably and timely objected; and provided, further, that the
foregoing proviso shall not apply to any document filed by Issuer
pursuant to the Exchange Act which is, or is deemed to be,
incorporated by reference in any Registration Statement or any
prospectus or prospectus supplement;
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(ii) furnish without charge to Stockholder, any sales or
placement agent and any underwriter of Registered Shares, a reasonable
number of copies of the Registration Statement and each amendment
thereto (in each case including all exhibits thereto), each prospectus
or prospectus supplement included in the Registration Statement
(including each preliminary prospectus) and any amendments or
supplements thereto and (upon request by Stockholder) any documents
incorporated therein by reference;
(iii) comply with the provisions of the Securities Act and
all applicable rules and regulations of the Commission with respect to
the disposition of all Registered Shares covered by the Registration
Statement in accordance with the intended method or methods of
distribution thereof set forth in the Registration Statement or any
prospectus supplement contained therein;
(iv) make available for inspection by Stockholder or by any
underwriter, attorney, accountant or other agent retained by
Stockholder or any Seller (collectively, the "Inspectors") financial
and other records and pertinent corporate documents of Issuer
(collectively, the "Records"), provide the Inspectors with
opportunities to discuss the business of Issuer with its officers, and
provide opportunities to discuss the business of Issuer with the
independent public accountants who have certified its most recent
annual financial statements, in each case to the extent but only to
the extent reasonably necessary to enable Stockholder or any
underwriter retained by Stockholder or any Seller to conduct a
"reasonable investigation" for purposes of Section 11(a) of the
Securities Act. Records which Issuer determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential
shall not be disclosed to any Inspector unless such Inspector enters
into a confidentiality agreement in customary form and reasonably
acceptable to such parties and Issuer and which provides that Records
shall not be disclosed to third parties unless (A) the disclosure of
such Records is necessary to avoid or correct a misstatement of a
material fact or omission to state a
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material fact in the Registration Statement, (B) the disclosure of
such Records is required by any court or governmental body with
jurisdiction over Stockholder or such Inspector or (C) all of the
information contained in such Records has been made generally
available to the public. Stockholder will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction or by any governmental body, promptly give prior notice
to Issuer and allow Issuer, at its expense, to undertake appropriate
action to prevent disclosure of those Records deemed confidential;
(v) promptly notify Stockholder, each sales or placement
agent and each underwriter of Registered Shares (A) when the
Registration Statement or any related prospectus or any amendment or
supplement has been filed, and, with respect to the Registration
Statement or any amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments or
supplements to the Registration Statement or the related prospectus or
for additional information, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (D)
of the receipt by Issuer of any notification with respect to the
suspension of the qualification of the Registered Shares for sale in
any jurisdiction or the initiation of any proceeding for such purpose
or (E) of the happening of any event which makes any statement in the
Registration Statement or any post-effective amendment thereto,
prospectus or any amendment or supplement thereto, or any document
incorporated therein by reference, untrue in any material respect or
which requires the making of any changes in the Registration Statement
or any prospectus, or amendment or supplement thereto, so that they
will not 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 (in the case of any prospectus, in the
light of the circumstances under which they were made) not misleading;
(vi) use its reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness
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of the Registration Statement or any post-effective amendment thereto;
(vii) use its reasonable efforts to register or qualify the
Registered Shares for offer and sale under such securities or "blue
sky" laws of such jurisdictions as Stockholder, any sales or placement
agent or underwriter of Registered Shares shall reasonably request in
writing at least 10 days prior to the closing of any particular sale
pursuant to the Registration Statement; provided, however, that Issuer
shall not be required for any such purpose to (A) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for the requirements of
this Section 2.03(a)(vii), (B) consent to general service of process
in any such jurisdiction, provided that Issuer shall execute consents
to service of process in the forms customarily requested in connection
with the Registration Statement or qualification of securities under
state or securities or "blue sky" laws, (C) subject itself to taxation
in any such jurisdiction in which it is not already so subject, or (D)
make any changes to its certificate of incorporation or bylaws or
enter into any undertakings with respect to its corporate affairs
other than undertakings customarily given in connection with
qualifications of securities for sale which do not restrict the
conduct of its business;
(viii) use its reasonable efforts to cause the Shares to be
listed for trading on the New York Stock Exchange, Inc. or such other
securities exchange or interdealer quotation system on which shares of
Common Stock may be traded or listed and to cause the Registered
Shares to be registered with or approved by such other governmental
agencies or authorities within the United States (except as may be
required as a consequence of the nature of Stockholder's business) as
may be necessary by virtue of the markets on which the Registered
Shares are listed or quoted to enable Stockholder any Seller to
consummate the disposition of the Registered Shares;
(ix) cooperate with Stockholder and any sales or placement
agent or underwriter of Registered Shares to
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facilitate the timely preparation and delivery of certificates
representing Registered Shares to be sold pursuant to the Registration
Statement, which certificates shall not bear any restrictive legends
except as required by law or, in the case of certificates held by The
Depository Trust Company or any similar depository, as customarily
borne by securities held by such depository; and, in the case of an
underwritten offering, enable such Registered Shares to be in such
denominations and registered in such names as the managing underwriter
or underwriters thereof may request in writing at least two business
days prior to any sale of the Registered Shares;
(x) enter into such agreements (including an underwriting
agreement or placement agency agreement) as are customary in
transactions of the kind contemplated by the intended method or
methods of distribution of the Registered Shares set forth in the
Registration Statement and reasonably acceptable to Issuer, and take
such other actions as are reasonably necessary in connection therewith
in order to expedite or facilitate the disposition of Registered
Shares; and (A) make such representations and warranties with respect
to the Registration Statement or any post-effective amendment or
supplement thereto, prospectus or any amendment or supplement thereto,
and documents incorporated by reference, if any, to Stockholder, any
Seller and the sales or placement agent or underwriters of the
Registered Shares in form, substance and scope as are customary in
connection with transactions of such kind; (B) if requested by the
managing underwriters or lead placement agent of the Registered
Shares, obtain an opinion of outside counsel to Issuer in customary
form and covering matters of the type customarily covered by such an
opinion, addressed to such sales or placement agent or underwriters
named in the underwriting agreement and dated the date of the closing
of the sale of the Registered Shares relating thereto (provided that
such opinion shall be dated as of a single date and no updates thereof
shall be required); (C) if requested by the managing underwriters or
lead placement agent of the Registered Shares, (I) obtain a "comfort"
letter (or, if a "comfort" letter may not be delivered under
applicable accounting pronouncements or standards, a single
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"procedures" letter) and a single update thereof from each of the
independent certified public accountants who have certified the most
recent audited financial statements that are incorporated by reference
in the Registration Statement, which letters shall be addressed to the
sales or placement agent or any underwriter of Registered Shares and
shall be dated the date of the prospectus used in connection with an
offering of Registered Shares and/or the date of the closing of the
sale of Registered Shares, such letter or letters to be in customary
form and covering such matters of the type customarily covered by
"comfort" letters of such type, and (II) use its reasonable efforts to
have such letter addressed to Stockholder and/or any Seller; (D)
deliver such documents and certificates as may be reasonably requested
by Stockholder, any Seller and the sales or placement agent or any
underwriter of Registered Shares to evidence compliance with any
conditions contained in the underwriting agreement or other agreement
entered into by Issuer; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as provided in
Sections 2.03 and 2.04 of this Agreement; provided, however, that
notwithstanding any other provision of this Agreement, Issuer shall
have no obligation to enter into more than two agreements covering
firm commitment underwritings of publicly offered Registered Shares
pursuant to this Agreement;
(xi) use reasonable efforts to make available to its security
holders an earnings statement, as soon as reasonably practicable but
in no event later than 90 days after the end of the period of twelve
months commencing on the first day of any fiscal quarter next
succeeding each sale by Stockholder and/or any Seller of Registered
Shares, which earnings statement shall cover such twelve month period
and shall satisfy the provisions of Section 11(a) of the Securities
Act and may be prepared in accordance with Rule 158 under the
Securities Act; provided, that Issuer's obligations under this
paragraph (xi) may be satisfied by the timely filing of quarterly or
annual reports under the Exchange Act containing the information
specified by Rule 158; and
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(xii) use its reasonable efforts to assist Stockholder and/or
any Seller in marketing the Securities, including causing its
executive officers to participate in such "road show" presentations
and conference calls as may be customary in the marketing of equity
securities; provided, however, that Stockholder shall cause the
managing underwriters or placement agents of any Securities to give
such executives reasonable advance notice concerning the scheduling of
any such presentation or call and provided, further, that such
presentations and conference calls shall be scheduled with the
understanding that the regular responsibilities of such executive
officers will take priority over any such activities.
(b) In the event that Issuer would be required to provide the
notice contemplated by Section 2.03(a)(v)(E) to Stockholder or any sales or
placement agent or underwriter, Issuer shall, as promptly as practicable,
prepare and furnish to Stockholder and each sales or placement agent or
underwriter a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Registered Shares,
such prospectus shall not contain 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, in the light of the circumstances under which they
were made, not misleading. Upon receipt of any notice from Issuer pursuant to
Section 2.03(a)(v)(C), (D) or (E), Stockholder shall, and shall cause each
Seller to, and shall use its reasonable efforts to cause any sales or placement
agent or underwriter of Registered Shares to, forthwith discontinue disposition
of Registered Shares until such Person shall have received copies of such
amended or supplemented prospectus and, if so directed by Issuer, to destroy or
to deliver to Issuer all copies, other than permanent file copies, then in its
possession of the prospectus (prior to such amendment or supplement) covering
the Registered Shares as soon as practicable after Stockholder's receipt of
such notice; provided, however, with respect to a notice pursuant to Section
2.03(a)(v)(D), Stockholder shall be obligated to comply with the covenant set
forth in this sentence only with respect to the jurisdiction to which such
notice relates.
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(c) In the event that the Board of Directors of Issuer, as
determined by majority vote thereof, provides written notice to Stockholder
(accompanied by a resolution of the board setting forth the following) that it
has determined that in order for Stockholder or any Seller to effect sales of
Registered Shares under a Registration Statement, Issuer would have to disclose
material nonpublic information which, if disclosed at such time, would be
materially harmful to Issuer and its stockholders, then, for a period not to
exceed 60 days from the date of receipt of such notice, Stockholder agrees not
to effect, and shall cause each Seller and any sales or placement agent or
underwriter not to effect, any such sales of such Registered Shares under such
Registration Statement; provided that Issuer may not exercise this deferral
right more than once in any consecutive twelve-month period; and provided,
further, that nothing in this paragraph shall prohibit or restrict Stockholder
or any Seller from effecting sales or transfers otherwise than under a
Registration Statement.
(d) Stockholder shall furnish to Issuer in writing such
information regarding Stockholder, any Seller and its or their intended method
of distribution of the Registered Shares as Issuer may from time to time
reasonably request in writing, but only to the extent that such information is
required in order for Issuer to comply with its obligations under all
applicable securities and other laws and to ensure that the prospectus relating
to the Registered Shares conforms to the applicable requirements of the
Securities Act and the rules and regulations thereunder. Stockholder shall
notify Issuer as promptly as practicable of any inaccuracy or change in
information previously furnished in writing by Stockholder to Issuer or of the
occurrence of any event, in either case as a result of which any prospectus
relating to the Registered Shares contains or would contain an untrue statement
of a material fact regarding Stockholder, any Seller or its or their intended
method of distribution of the Registered Shares or omits to state any material
fact regarding Stockholder, any Seller or its or their intended method of
distribution of the Registered Shares required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and promptly furnish to Issuer any
additional information required to correct and update any previously
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furnished information or required so that such prospectus shall not contain,
with respect to Stockholder, any Seller or the distribution of the Registered
Shares, 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, in
the light of the circumstances under which they were made, not misleading.
(e) Issuer, Stockholder, each Seller and all of their
respective officers and directors will comply with the provisions of Regulation
M promulgated by the Commission, as applicable to them in connection with sales
of Registered Shares.
2.04 Registration Expenses. Issuer agrees to bear and to pay,
or cause to be paid, promptly upon request being made therefor, all expenses
incident to Issuer's performance of or compliance with this Agreement,
including, without limitation: (a) all Commission and any National Association
of Securities Dealers registration and filing fees and expenses, (b) all fees
and expenses in connection with the qualification of the Registered Shares for
offering and sale under state securities or "blue sky" laws referred to in
Section 2.03(a)(vii) hereof, including reasonable fees and disbursements of
counsel for any sales or placement agent or underwriter in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of any Registration Statement, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment
or supplement to the foregoing, the certificates representing the Registered
Shares and all other documents relating hereto, (d) internal expenses of Issuer
(including, without limitation, all salaries and expenses of Issuer's officers
and employees performing legal or accounting duties), (e) fees, disbursements
and expenses of Issuer's counsel and its other advisors and experts and
independent certified public accountants of Issuer (including the expenses of
any opinions or "comfort" letters required by or incident to such performance
and compliance), and (f) the fees and expenses incurred in connection with the
listing or quotation of the Registered Shares on the New York Stock Exchange,
Inc. or any other stock exchange or dealer quotation system on which the Common
Stock shall at such time be listed or traded (collectively, the "Expenses"). To
the extent that any
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Expenses are incurred, assumed or paid by Stockholder, any Seller or any sales
or placement agent or underwriter of Registered Shares, Issuer shall reimburse
such Person for the full amount of the Expenses so incurred, assumed or paid
promptly after receipt of a written request therefor, which shall specify in
reasonable detail the nature and amount of the Expenses. Notwithstanding the
foregoing, Stockholder shall pay or cause to be paid, as appropriate, (a) all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of the Registered Shares by or on behalf of
Stockholder or any Seller, (b) all out-of-pocket expenses and disbursements
arising out of or related to any marketing efforts undertaken pursuant to
Section 2.03(a)(xii) of this Agreement, (c) the fees, disbursements and
expenses of counsel to Stockholder or any Seller in connection with the
offering and sale of the Registered Shares, (d) the disbursements and expenses
of any placement agents or underwriters in connection with the offering and
sale of the Registered Shares, and (e) all transfer taxes applicable to the
sale of the Registered Shares.
2.05 Indemnification; Contribution.
(a) Indemnification by Issuer. Issuer shall, and it hereby
agrees to, (i) indemnify, defend and hold harmless Stockholder and each Seller,
and each Person who participates as a sales or placement agent or underwriter
in any offering or sale of the Registered Shares, against any losses, claims,
damages or liabilities to which Stockholder, any Seller or such agent or
underwriter may become subject, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (A) an untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement, or any preliminary or final
prospectus contained therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or arise out of or are based upon
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 or
(B) any violation by Issuer of any federal, state or other law applicable to
Issuer in connection with such registration, and (ii) reimburse Stockholder,
each Seller and any such agent or underwriter for any legal or other
out-of-pocket expenses reasonably
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incurred by them in connection with investigating or defending any such action,
proceeding or claim; provided, however, that Issuer shall not be liable to any
such Person in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in a Registration
Statement, or preliminary or final prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to Issuer by any such Person expressly for use therein, or by such Person's
failure to furnish Issuer, upon written request, with the information with
respect to such Person, or Stockholder's intended method of distribution, that
is the subject of the untrue statement or omission.
(b) Indemnification by Stockholder. Stockholder agrees to (i)
indemnify, defend and hold harmless Issuer, and each Person who participates as
a sales or placement agent or underwriter in any offering or sale of the
Registered Shares, against any losses, claims, damages or liabilities to which
Issuer may become subject, insofar as such losses, claims, damages or
liabilities (including any amounts paid in settlement as provided herein), or
actions or proceedings in respect thereof, arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon 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, in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to Issuer by
Stockholder expressly for use therein, and (ii) reimburse Issuer and any such
agent or underwriter for any legal or other out-of-pocket expenses reasonably
incurred by them in connection with investigating or defending any such action,
proceeding or claim; provided, however, that the liability of Stockholder shall
be limited to the proceeds received by Stockholder and each Seller from the
sale of Registered Shares under such Registration Statement.
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(c) Notice of Claims, Etc. Promptly after receipt by any
party which is entitled to assert a right to indemnification under Section
2.05(a) or (b) (each, an "Indemnified Party"), of written notice of the
commencement of any action or proceeding as to which such Indemnified Party is
entitled to indemnification under Section 2.05(a) or (b), such Indemnified
Party shall, without regard to whether a claim in respect thereof is to be made
against the party against whom such right to indemnification may be asserted
(an "Indemnifying Party"), notify such Indemnifying Party in writing of the
commencement of such action or proceeding; but the omission so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party in respect of such action or
proceeding on account of the indemnification provisions of or contemplated by
Section 2.05(a) or (b) unless the Indemnifying Party was materially prejudiced
by such failure of the Indemnified Party to give such notice, and in no event
shall such omission relieve the Indemnifying Party from any other liability it
may have to such Indemnified Party. In case any such action or proceeding shall
be brought against any Indemnified Party and it shall notify an Indemnifying
Party of the commencement thereof, such Indemnifying Party shall be entitled to
participate therein and, to the extent that it shall determine, jointly with
any other Indemnifying Party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to the Indemnified Party, and, after
notice from the Indemnifying Party to the Indemnified Party of its election so
to assume the defense thereof, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or any other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation (unless the Indemnified Party reasonably
objects to such assumption on the grounds that there may be defenses available
to it which are in conflict with defenses available to the Indemnifying Party,
in which event the Indemnified Party shall have the right to control its
defense and shall be reimbursed by the Indemnifying Party for the expenses
incurred in connection with retaining separate counsel, which shall be limited
to a single law firm in each jurisdiction). If the Indemnifying Party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for all
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Indemnified Parties with respect to such claim. The Indemnifying Party will not
be subject to any liability for any settlement made without its consent, which
consent shall not be unreasonably withheld or delayed. No Indemnifying Party
will consent to entry of any judgment or enter into any settlement agreement
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.
(d) Contribution. If, for any reason (other than a reason
specified herein), the indemnification provisions contemplated by Section
2.05(a) or (b) hereof are unavailable to hold harmless an Indemnified Party in
respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each Indemnifying
Party shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative fault of, and benefits derived by, the Indemnifying Party and the
Indemnified Party, 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 the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such Indemnifying Party or by
such Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.05(d) were determined (i) by pro rata
allocation (even if Stockholder, or any Sellers, or any agents for, or
underwriters of, the Registered Shares, or any or all of them, were treated as
one entity for such purpose); or (ii) by any other method of allocation which
does not take account of the equitable considerations referred to in this
Section 2.05(d). The amount paid or payable by an Indemnified Party as a result
of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above shall be deemed to include (subject to the
limitations set forth in Section 2.05(c) hereof) any legal or other fees or
expenses
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reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action, proceeding or claim. 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.
(e) Beneficiaries of Indemnification. The obligations of
Issuer and Stockholder under this Section 2.05 shall be in addition to any
liability that it may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director, employee, subsidiary, affiliate and
partner of any Indemnified Party and each agent and underwriter of Securities
and each Person, if any, who controls any Indemnified Party or any such agent
or underwriter within the meaning of the Securities Act; and the obligations of
Stockholder contemplated by this Section 2.05 shall be in addition to any
liability that Stockholder may otherwise have and shall extend, upon the same
terms and conditions, to each Person who, with his consent, is named in any
Registration Statement as about to become a director of Issuer.
2.06 Underwriters. If any of the Shares are to be sold
pursuant to an underwritten offering, the investment banker or bankers and the
managing underwriter or underwriters thereof shall be selected by Stockholder
and shall be reasonably acceptable to Issuer (provided, however, that Issuer
agrees that Xxxxxx Xxxxxxx Xxxx Xxxxxx shall be reasonably acceptable to
Issuer).
2.07 Approval for Listing. Promptly after the date hereof and
after any subsequent increase in the number of Shares, Issuer shall take all
necessary action to cause all of the Shares to be approved for listing, subject
to official notice of issuance, on the primary national security exchange or
dealer quotation system on which the Common Stock may then be listed or
authorized for quotation.
2.08 Subsequent Registration Rights. Nothing in this
Agreement shall prevent the Issuer from granting any registration rights to any
other person with respect to any securities of Issuer.
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ARTICLE III
MISCELLANEOUS
3.01 Term of Agreement; Termination; Survival. The term of
this Agreement shall commence on the date hereof and such term and this
Agreement shall, subject to Section 3.05, terminate upon the expiration of the
Effective Period.
3.02 Specific Performance and Other Equitable Rights. Each of
the parties hereto recognizes and acknowledges that a breach by a party or by
any assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the
parties hereto agrees that in the event of any such breach, the aggrieved party
shall be entitled to the remedy of specific performance of such covenants or
commitments and preliminary and permanent injunctive and other equitable relief
in addition to any other remedy to which it may be entitled, at law or in
equity, and the parties hereto further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
3.03 Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt
requested, or if sent by telecopier, upon receipt of oral confirmation that
such transmission has been received, to the Person at the address set forth
below, or such other address as may be designated in writing hereafter, in the
same manner, by such Person or by Stockholder:
(a) if to Issuer, addressed as follows:
Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
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(b) if to Stockholder, addressed as follows:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 3.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
3.04 Parties in Interest. This Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors and assigns. Each Seller shall be an intended third party
beneficiary of this Agreement.
3.05 Survival. The several indemnities, agreements, and each
other provision set forth in this Agreement or made pursuant hereto shall
remain in full force and effect regardless of any investigation (or statement
as to the results thereof) made by or on behalf of any party, any director or
officer of such party, or any controlling Person of any of the foregoing, and
shall survive the transfer of any Shares by Stockholder or any Seller. The
expense payment provisions of Section 2.04 and the indemnification and
contribution provisions set forth in Section 2.05 hereof shall survive any
termination of this Agreement.
3.06 Assignment. No party to this Agreement may assign any of
its rights or obligations under this Agreement without the prior written
consent of the other parties hereto, and any such purported assignment shall be
null and void, except that Stockholder may assign and delegate its rights and
obligations under this Agreement to any of its majority-owned subsidiaries,
without the consent of Issuer; provided that such majority-owned subsidiary
executes and delivers to Issuer an agreement to the effect that such
majority-owned subsidiary agrees to be bound by this Agreement.
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3.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
3.08 Consent to Jurisdiction. Each of the parties irrevocably
submits to the exclusive jurisdiction of (a) the state courts of the State of
Florida, located in the City of Orlando, and (b) the United States District
Court for the Middle District of Florida, for the purposes of any suit, action
or other proceeding arising out of this Agreement or any transaction
contemplated hereby. Each of the parties agrees to commence any action, suit or
proceeding relating hereto either in the United States District Court for the
Middle District of Florida or if such suit, action or other proceeding may not
be brought in such court for jurisdictional reasons, in the state courts of the
State of Florida, located in the City of Orlando. Each of the parties further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in any such
court with respect to any matters to which it has submitted to jurisdiction in
this Section 3.08. Each of the parties irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in (i) the state
courts of the State of Florida, located in the City of Orlando, or (ii) the
United States District Court for the Middle District of Florida, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any court
has been brought in an inconvenient forum.
3.09 Severability. It is the intention of the parties that
the provisions of this Agreement be deemed severable and the invalidity or
unenforceability of any provision not affect the validity or enforceability of
the other provisions hereof. It is the intention of the parties that if any
provision of this Agreement, or the application thereof to any Person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable,
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the intent and purpose of such invalid or unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
Persons, entities or circumstances shall not be affected by such invalidity or
unenforceability.
3.10 Entire Agreement; Amendments. This Agreement contains
the entire understanding of the parties with respect to its subject matter.
This Agreement supersedes all prior agreements and understandings among the
parties with respect to its subject matter. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by Issuer and Stockholder, which shall be
binding on Stockholder and each Seller, on the one hand, and Issuer, on the
other.
3.11 Further Assurances. Each party shall provide such
further documents or instruments reasonably requested by any other party as may
be necessary or desirable to effect the purpose and intention of this Agreement
and carry out its provisions, whether before or after its termination.
3.12 Counterparts. This Agreement and any amendments hereto
may be executed in two or more counterparts, each of which shall be deemed to
be an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been signed on behalf
of each of the parties hereto as of the date first written above.
XXXXXX WORLDWIDE, INC.
By: /s/ Xxxxx X. XxxXxxxxx
Name: Xxxxx X. XxxXxxxxx
Title:Executive Vice President
and Chief Financial Officer
XXXXXX CORPORATION
By:/s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President -
Treasurer
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