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Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of March 15, 1999, between Xxxxxxxxxx.xxx, Inc., a
Delaware corporation (the "Company"), and Vauxhall LLC, a Nevada limited
liability company ("Vauxhall" and together with its permitted assigns, the
"Holder").
W I T N E S S E T H
WHEREAS, the Company and the Holder are parties to a Transfer Agreement
dated March 15, 1999, pursuant to which the Holder agreed to transfer its entire
membership interest in Global Discount Travel Services LLC and its entire equity
interest in Global Travel Marketing Services, Inc. to the Company in exchange
for 28,599,900 shares (the "Global Shares") of the Company's Common Stock, par
value $.01 per share (the "Common Stock"); and
WHEREAS, the Holder and Icahn Associates Corp., a Delaware corporation
("Icahn Associates"), are parties to a Transfer Agreement dated April 16, 1999,
pursuant to which the Holder acquired from Icahn Associates 100 shares (the
"Icahn Associates Shares") of the Company's Common Stock (the Global Shares and
the Icahn Associates Shares being hereinafter referred to collectively as the
"Shares"); and
WHEREAS, the Company has agreed to provide the Holder certain
registration rights with respect to the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Holder hereby agree as follows:
1. Demand Registration.
(a) At any time following the six-month anniversary of the date of this
Agreement, the Holder may make a written request to the Company requesting that
the Company register under the Securities Act of 1933, as amended (the "Act"),
all or any portion of the Shares held by the Holder (but in no event shall the
written demand be for less than 150,000 Shares) for sale in the manner specified
in such notice; provided, however, that the Company shall not be required to
effect a registration pursuant to this Section 1 if counsel for the Company
shall deliver an opinion, in form and substance reasonably satisfactory to the
Holder, to the effect that all of the Shares sought to be sold by the Holder are
salable pursuant to Rule 144 under the Act.
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(b) The Company shall use its reasonable commercial efforts to register
the Shares under the Act by taking all actions necessary, including, without
limitation, those actions set forth in Section 3 hereof, to permit the public
sale of the Shares in accordance with the method of disposition specified in the
notice described in paragraph (a) above, the number of Shares specified in such
notice. If such method of disposition shall be an underwritten public offering,
the Holder may designate the managing underwriter of such offering, subject to
the approval of the Company, which approval shall not be unreasonably withheld
or delayed. The Company shall be obligated to register the Shares held by the
Holder pursuant to this Section 1 on three occasions only, provided, however,
that such obligation shall be deemed satisfied only when a registration
statement covering all Shares specified in the notice received as aforesaid, for
sale in accordance with the method of disposition specified by the Holder shall
have become effective.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 1, for sale in accordance with the method
of disposition specified by the Holder, shares of Common Stock to be sold by
other selling stockholders or by the Company for its own account, except as and
to the extent that, in the opinion of the managing underwriter (if such method
of disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Shares to be sold.
2. Piggyback Registration. If the Company at any time following the
six-month anniversary of the date of this Agreement (other than pursuant to
Section 1) proposes to register any shares of Common Stock under the Act for
sale to the public, whether for its own account or for the account of other
security holders or both (except with respect to registration statements on Form
X-0, X-0 or another form not available for registering the Shares for sale to
the public), it will give written notice to the Holder at least twenty (20) days
before the initial filing with the Securities and Exchange Commission (the
"Commission") of such registration statement. Upon the written request of the
Holder to register any of its Shares, such notice to be delivered to the Company
within 15 days after the giving of any such notice by the Company, the Company
will use its reasonable commercial efforts to cause the number of Shares as to
which registration shall have been so requested to be included in the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the Holder (in accordance
with its written request) of the Shares so registered. In the event that any
registration pursuant to this Section 2 shall be, in whole or in part, an
underwritten public offering, the number of Shares to be included in such
offering may be reduced if and to the extent that the managing underwriter or
underwriters, if any, of such offering shall be of the opinion that inclusion of
the Shares would adversely affect the marketing of the securities to be sold by
the Company therein. In such event, the Company shall include in the
registration statement the number of shares of Common Stock that the Company is
so advised can be sold in such offering in the following priority: (i) first,
all shares of Common Stock proposed to be included in such registration
statement by the Company; (ii) second, all shares of Common Stock to be sold by
the shareholder, if any, who has exercised his demand or similar right to
require the Company to file such registration statement; (iii) third, all shares
of Common Stock proposed to be included in such registration statement by the
Holder; and (iv) fourth, all other shares of Common Stock proposed to be
included in such registration statement by other holders thereof (pro rata based
upon the number of shares of Common Stock proposed to be included by such
holders).
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3. Registration Procedures. In the event that the Company is required
by the provisions of Sections 1 or 2 to effect the registration of any Shares
under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 3, shall be on Form X-0, X-0, X-0 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to the Shares and use its reasonable commercial efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided), provided
that in the case of a registration pursuant to Sections 1 or 2 (I) the Company
shall not be required to cause any special audit to be undertaken in connection
with any such registration and in the case of a registration pursuant to Section
1 only, (II) the Company shall not be required to file any registration
statement during any period of time when (x) the Company is contemplating a
public offering of its securities and, in the judgment of the managing
underwriter thereof (or the Company, if such offering is not underwritten) such
filing would have a material adverse effect on the contemplated offering, or (y)
the Company is in possession of material information that it deems advisable not
to disclose in a registration statement or (z) the Company is engaged in any
program for the repurchase of its own securities. The foregoing notwithstanding,
the restrictions set forth in this Section 3(a) shall not, under any
circumstances, work so as to effect a delay of more than one hundred eighty
(180) days in the filing of any registration statement demanded by the Holder to
be filed in accordance with Section 1;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Act with respect to the sale or other disposition of all of the Shares
covered by such registration statement in accordance with the Holder's intended
method of disposition set forth in such registration statement for such period;
(c) furnish to the Holder and each underwriter such number of
copies of the registration statement and each such amendment and supplement
thereto (in each case including all exhibits) and the prospectus included
therein (including each preliminary prospectus) as such persons may reasonably
request in order to facilitate the public sale or other disposition of the
Shares covered by such registration statement;
(d) use its reasonable commercial efforts to register or
qualify the Shares covered by such registration statement under the securities
or "blue sky" laws of such jurisdictions as the Holder, or in the case of an
underwritten public offering, the managing underwriter, shall reasonably
request, provided, however, that the Company shall not for any such purpose be
required to (i)
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qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified, (ii) to subject itself to taxation in
any such jurisdiction, or (iii) to consent to general service of process in any
such jurisdiction;
(e) use its reasonable commercial efforts to list the Shares
covered by such registration statement with any securities exchange on which the
Common Stock of the Company is then listed;
(f) immediately notify the Holder and each underwriter under
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Act, of the happening of any event of which
the Company has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
circumstances then existing, and promptly prepare and furnish to the Holder a
reasonable number of copies of a prospectus supplement or amendment so that, as
thereafter delivered to the purchasers of such shares, 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 then existing;
(g) if the offering is underwritten and the Holder so
requests, use its reasonable commercial efforts to furnish on the date that any
of the Shares are delivered to the underwriters for sale pursuant to such
registration; (i) an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to the
Holder, to such effects as reasonably may be requested by counsel for the
underwriters or by the Holder or its counsel, and (ii) a letter dated such date
from the independent pubic accountants retained by the Company, addressed to the
underwriters and to the Holder, stating that they are independent public
accountants within the meaning of the Act and that, in the opinion of such
accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Act, and such letter shall additionally cover
such other financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with respect to
such registration as such underwriters reasonably may request;
(h) make available for inspection by the Holder, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by the Holder or
underwriter, reasonable access to all financial records and other records,
pertinent corporate documents and properties of the Company, as such parties may
reasonably request, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(i) cooperate with the Holder and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing the Shares to be sold, such certificates to be in such
denominations and registered in such names as the Holder or the managing
underwriters may request at least two business days prior to any sale of the
Shares;
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(j) permit the Holder to participate in good faith in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of the Holder and its counsel should be included; and
(k) otherwise cooperate to give effect to the rights granted
in Sections 3 and 4 hereof;
For purposes of Section 3(a) and 3(b) and of Section 1(c), the
period of distribution of the Shares in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of the Shares in any other registration shall be deemed to extend until the sale
of all of the Shares covered thereby.
In connection with each registration hereunder, the Holder
will furnish to the Company in writing such information requested by the Company
with respect to himself and the proposed distribution by him as reasonably shall
be necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 1 or
2 covering an underwritten public offering, the Company and the Holder agree to
enter into and perform their obligations under a written agreement with the
managing underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such underwriter and companies of the Company's size and
investment stature.
4. Indemnification.
(a) In the event of a registration of any of the Shares under
the Act pursuant to Sections 1 or 2, the Company shall indemnify and hold
harmless the Holder against any losses, claims, damages or liabilities to which
the Holder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which the Shares were registered under the
Act pursuant to Section 1 or 2, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, (ii) or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and the Company shall
reimburse the Holder for any legal or any other expenses reasonably incurred by
him in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission from such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement, which
statement or omission is made in reliance
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upon and in conformity with information furnished by the Holder in writing
specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Shares under
the Act pursuant to Sections 1 or 2, the Holder shall indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Act, each underwriter and each person who controls any
underwriter within the meaning of Section 15 of the Act against all losses,
claims, damages or liabilities, joint or several, to which the Company or any
such officer, director, underwriter or controlling person may become subject
under the Act or otherwise, but only insofar as and to the extent that such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise as a result of (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which the Shares were registered under the Act
pursuant to Section 1 or 2, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, (ii) or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and the Holder shall
reimburse the Company and each such officer, director, underwriter or
controlling person for any legal or any other expenses reasonably incurred by
him in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Holder shall be
liable hereunder in any such case if, and only to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises as a result of an untrue statement or alleged untrue statement or
omission or alleged omission from such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, which statement or omission was made in reliance upon and in
conformity with information pertaining to the Holder, as such, furnished in
writing by the Holder specifically for use in such registration statement or
prospectus.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in
Section 4(a) or 4(b), such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party hereunder, give written
notice to the indemnifying party of the commencement of such action; provided
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under Section 4(a)
or 4(b), except to the extent that the indemnifying party is actually prejudiced
by such failure to give notice. In case any such action is brought against an
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in and, to the
extent it shall wish, to assume and undertake the defense thereof with counsel
reasonably satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to the
indemnified party under this Section for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected,
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or in addition to those available to the indemnifying
party or if the interests of the indemnified party
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reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defense and otherwise participate in the defense of
such action, with the reasonable expenses and fees of such separate counsel and
other reasonable expenses related to such participation to be reimbursed by the
indemnifying party as incurred. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonable withheld, delayed or conditioned. No
indemnifying party shall, without the consent of the indemnified party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
(d) The indemnification required by this Section 4 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
5. Expenses. All expenses incurred by the Company in complying with
Sections 1 and 2, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the securities exchange upon which the Common Stock of the Company is
then listed, transfer taxes and fees of transfer agents and registrars, but
excluding any Selling Expenses, are called "Registration Expenses". All
underwriting discounts and selling commissions and transfer taxes applicable to
the sale of the Shares and fees and expenses of counsel to the sellers of the
Shares are called "Selling Expenses".
The Company will pay all Registration Expenses in connection
with each registration statement under Sections 1 or 2. All Selling Expenses in
connection with each registration statement under Sections 1 or 2 shall be borne
by the participating sellers in proportion to the number of shares sold by each,
or by such participating sellers other than the Company (except to the extent
the Company shall be a seller) as they may agree.
6. Holder Information. The Holder shall provide the Company
with such information with respect to the Shares to be sold, the plans for the
proposed disposition thereof and such other information as shall, in the opinion
of counsel for the Company be reasonably necessary to enable the Company to
include in such registration statement all material facts required to be
disclosed with respect to the Holder as a shareholder of the Company.
7. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Shares), whether so expressed or not.
(b) All notices, requests, demands and other communications
which are required to be or may be given under this Agreement shall be in
writing and shall be deemed to have been
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duly given when delivered in person, or transmitted by telecopy or telex, or
upon receipt after dispatch by certified or registered first class mail, postage
prepaid, return receipt requested, to the party to whom the same is so given or
made, at the following addresses or telecopy or telex numbers (or such others as
shall be provided in writing hereinafter):
If to the Company, to:
Xxxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxx Xxxxxx
If to Vauxhall, to:
Vauxhall LLC
000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Copies of all notices to:
Xxxxxx Xxxxxx Butowsky Xxxxxxx Shalov & Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
(c) This Agreement shall be governed by, and interpreted
under, the laws of the State of New York without regard to conflicts of law
principles.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of each of the
original parties hereto.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) If requested in writing by the underwriters for an
underwritten public offering of securities of the Company, the Holder shall
agree not to sell publicly any Shares or any other shares of Common stock (other
than any Shares or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period of not more
than 90 days following the effective date of the registration statement
relating to such offering or for such shorter period as is applicable to any
other officer or director of the Company who holds Common Stock.
(g) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
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Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXXXXXXX.XXX, INC.
By:
Name: Xxxx Xxxxxx
Title: President
VAUXHALL LLC
By: Global Partner, Inc., Member
By:
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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