REGISTRATION RIGHTS AGREEMENT
by and between
INVEMED CATALYST FUND, L.P.
and
AMBASSADORS GROUP, INC.
Dated July 29, 2003
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated July 29,
2003 by and between Invemed Catalyst Fund, L.P., a Delaware limited partnership
("ICF") and Ambassadors Group, Inc., a Delaware corporation (the "Company").
W I T N E S S E T H :
WHEREAS, ICF and each of Xxxx X. Xxxxxxxxx and Xxxxx X.
Xxxxxxxxx (collectively, the "Sellers") have entered into a Stock Purchase
Agreement, dated as of July 23, 2003 (such Stock Purchase Agreement, as amended
or otherwise modified from time to time, the "Purchase Agreement"), pursuant to
which the Sellers (and the Sellers' children and/or trusts controlled by the
Sellers) have sold, and ICF has purchased, an aggregate of 1,200,000 shares of
Common Stock, par value $0.01 per share, of the Company (the "Common Shares").
WHEREAS, in order to induce ICF to enter into the Stock
Purchase Agreement, the board of directors of the Company has authorized and
approved the grant by the Company of certain registration rights in respect of
the Registrable Securities (as defined below) on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements contained herein, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean (i) with respect to any Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person, which shall be deemed to include
for ICF, any general or
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limited partner or member of ICF, and (ii) with respect to any individual, shall
also mean the spouse, sibling, child, stepchild, grandchild, niece, nephew or
parent of such Person, or the spouse thereof.
"Blackout Notice" shall have the meaning set forth in Section
2.3.
"Blackout Period" shall have the meaning set forth in Section
2.3.
"Common Shares" shall have the meaning set forth in the
recitals hereto.
"Company" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Holders" shall mean the Initial Holder and any of its
Affiliates (for so long as any such Person remains an Affiliate), for so long as
they own any Registrable Securities and such of its respective successors and
permitted assigns (including any permitted transferees of Registrable
Securities) who acquire or are otherwise the transferee of Registrable
Securities, directly or indirectly, from such Initial Holder (or any subsequent
Holder), for so long as such successors and permitted assigns own any
Registrable Securities.
"Holders' Counsel" shall mean legal counsel representing the
Holders of Registrable Securities participating in such registration.
"Initial Holder" shall mean ICF.
"Inspectors" shall have the meaning set forth in Section
3.1(g).
"Majority Holders" shall mean one or more Holders of
Registrable Securities who would hold a majority of the Registrable Securities
then outstanding.
"Majority Holders of the Registration" shall mean, with
respect to a particular registration, one or more Holders of Registrable
Securities who would hold a majority of the Registrable Securities to be
included in such registration.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" shall mean any individual, firm, partnership,
corporation, trust, joint venture, association, joint stock company, limited
liability company, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof,
and shall include any successor (by merger or otherwise) of such entity.
"Prospectus" shall mean the prospectus included in a
Registration Statement (including, without limitation, any preliminary
prospectus and any prospectus
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that includes any information previously omitted from a prospectus filed as part
of an effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), and any such Prospectus as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to such
Prospectus, including post-effective amendments, and in each case including all
material incorporated by reference (or deemed to be incorporated by reference)
therein.
"Records" shall have the meaning set forth in Section 3.1(g).
"Registrable Securities" shall mean (i) the Common Shares
sold pursuant to the Purchase Agreement and (ii) any other securities of the
Company (or any successor or assign of the Company, whether by merger,
consolidation, sale of assets or otherwise) which may be issued or issuable with
respect to, in exchange for, or in substitution of, the Registrable Securities
referenced in clause (i) above by reason of any dividend or stock split,
combination of shares, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar transaction. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have been declared effective under the Securities
Act and such securities shall have been disposed of in accordance with such
registration statement, (B) such securities have been otherwise transferred, a
new certificate or other evidence of ownership for them not bearing the legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act, (C) such securities shall have ceased to be outstanding, or (D)
such securities become eligible for sale under Rule 144(k) without any volume,
manner of sale or other restrictions.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance with this Agreement by the Company and
its subsidiaries, including, without limitation, (i) all SEC, stock exchange,
NASD and other registration, listing and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
and compliance with the rules of any stock exchange (including fees and
disbursements of counsel in connection with such compliance and the preparation
of a blue sky memorandum and legal investment survey), (iii) all expenses of any
Persons retained by the Company in preparing or assisting in preparing, word
processing, printing, distributing, mailing and delivering any Registration
Statement, any Prospectus, transmittal letters, securities sales agreements,
securities certificates and other documents relating to the performance of or
compliance with this Agreement, (iv) the fees and disbursements of counsel for
the Company, (v) the fees and disbursements of all independent public
accountants (including the expenses of any audit and/or "cold comfort" letters)
and the fees and expenses of other Persons, including experts, retained by the
Company, and (vi) premiums and other costs of policies of insurance purchased by
the Company as designated by the Board of Directors of the Company, if any,
against liabilities arising out of the public offering of the Registrable
Securities being registered.
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"Registration Statement" shall mean any registration
statement of the Company which covers any Registrable Securities and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference (or
deemed to be incorporated by reference) therein.
"SEC" shall mean the Securities and Exchange Commission, or
any successor agency having jurisdiction to enforce the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"Shelf Registration Period" shall have the meaning set forth
in Section 2.1(b).
"Shelf Registration Statement" shall have the meaning set
forth in Section 2.1(a).
ARTICLE II
REGISTRATION UNDER THE SECURITIES ACT
2.1 Shelf Registration Statement.
(a) The Company: (A) shall cause to be filed with the SEC, on
or before September 30, 2003, a shelf registration statement (the "Shelf
Registration Statement") on an appropriate form under the Securities Act,
relating solely to the offer and sale of all the Registrable Securities by the
Holders thereof from time to time in accordance with the methods of distribution
specified by the Initial Holder as set forth in the Registration Statement and
Rule 415 under the Securities Act; and (B) shall use its best efforts to have
such Shelf Registration declared effective by the SEC as soon as practicable
thereafter; provided, however, that no Holder (other than the Initial Holder)
shall be entitled to have the Registrable Securities held by it covered by such
Registration Statement unless such Holder agrees in writing to be bound by all
the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended in order
to permit the Prospectus included therein to be lawfully delivered by the
Holders of the Registrable Securities through the date on which all of the
Registrable Securities covered by such Shelf Registration may be sold pursuant
to Rule 144(k) under the Securities Act (or any successor provision having
similar effect) without any volume, manner of sale or other restrictions, or
such shorter period that will terminate on the date on which all of the
Registrable Securities have been sold pursuant to an effective registration
statement (in any such case, such period being called the "Shelf Registration
Period"); provided, however, that prior to the termination of such Shelf
Registration Period, the Company
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shall first furnish to each Holder of Registrable Securities participating in
such Shelf Registration an opinion, in form and substance satisfactory to the
Majority Holders of the Registration, of counsel for the Company satisfactory to
the Majority Holders stating that such Registrable Securities are freely
saleable pursuant to Rule 144(k) under the Securities Act (or any successor
provision having similar effect) without any volume, manner of sale or other
restrictions. The Company shall be deemed not to have used its best efforts to
keep the Registration Statement effective during the Shelf Registration Period
if it voluntarily takes any action that would result in Holders of the
Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during the Shelf Registration Period, unless such action
is required by applicable law.
2.2 Expenses. The Company shall pay all Registration Expenses
in connection with any Shelf Registration, whether or not such registration
shall become effective and whether or not all Registrable Securities originally
requested to be included in such registration are withdrawn or otherwise
ultimately not included in such registration. Each Holder shall pay (x) all
discounts and commissions payable to selling brokers, managers or other similar
Persons engaged in the distribution of such Holder's Registrable Securities
pursuant to any registration pursuant to this Section 2 and (y) all other of its
expenses and costs (such as fees and expenses of Holder's Counsel) relating to
the registration and/or offering other than registration expenses.
2.3 Postponements. The Company shall be entitled to require
the Holders of Registrable Securities to discontinue the disposition of their
securities covered by a Shelf Registration during any Blackout Period (as
defined below) (i) if the board of directors of the Company determines in good
faith that effecting such a registration or continuing such disposition at such
time would have an adverse effect upon a proposed sale of all (or substantially
all) of the assets of the Company or a merger, reorganization, recapitalization
or similar current transaction materially affecting the capital, structure or
equity ownership of the Company, or (ii) if the Company is in possession of
material information which the board of directors of the Company determines in
good faith is not in the best interests of the Company to disclose in a
registration statement at such time, provided, however, that the Company may
require the Holders of Registrable Securities to discontinue the disposition of
their securities covered by a Shelf Registration only for a reasonable period of
time not to exceed 90 days (or such earlier time as such transaction is
consummated or no longer proposed or the material information has been made
public (the "Blackout Period"). There shall not be more than one Blackout Period
in any 12-month period.
The Company shall promptly notify the Holders in writing (a
"Blackout Notice") of any decision to discontinue sales of Registrable
Securities covered by a Shelf Registration pursuant to this Section 2.3 and
shall include an undertaking by the Company to promptly notify the Holders as
soon as a sale of Registrable Securities covered by a Shelf Registration may
resume. In making any such determination to initiate or terminate a Blackout
Period, the Company shall not be required to consult with or obtain the consent
of any Holder, and any such determination shall be the Company's sole
responsibility. Each Holder shall treat all notices received from the Company
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pursuant to this Section 2.3 in the strictest confidence and shall not
disseminate such information.
ARTICLE III
REGISTRATION PROCEDURES
3.1 Obligations of the Company. Whenever the Company is required to
effect the registration of Registrable Securities under the Securities Act
pursuant to Section 2 of this Agreement, the Company shall, as expeditiously as
possible:
(a) prepare and file with the SEC the requisite Registration
Statement to effect such registration, which Registration Statement shall comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith,
and the Company shall use its best efforts to cause such Registration Statement
to become effective (provided, that the Company may discontinue any registration
of its securities that are not Registrable Securities, and, under the
circumstances specified in Section 2.3, its securities that are Registrable
Securities); provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, or comparable statements
under securities or blue sky laws of any jurisdiction, the Company shall (i)
provide Holders' Counsel and any other Inspector (as defined in Section 3.1(g))
with an adequate and appropriate opportunity to review comment on, at the
Holders' cost, such Registration Statement and each Prospectus included therein
(and each amendment or supplement thereto or comparable statement) to be filed
with the SEC, and (ii) not file any such Registration Statement or Prospectus
(including any amendment or supplement thereto or comparable statement but
excluding any filing made under the Exchange Act that is incorporated by
reference therein) with the SEC to which Holder's Counsel, any selling Holder or
any other Inspector shall have reasonably objected on the grounds that such
filing does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(b) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary (i) to keep such Registration Statement effective,
and (ii) to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement, in each case until such time as all of such Registrable Securities
have been disposed of (but not before the expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable);
(c) furnish, without charge, to each selling Holder of such
Registrable Securities of the securities covered by such Registration Statement,
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits), and the Prospectus
included in such Registration Statement (including each preliminary Prospectus)
in conformity with the requirements of the Securities Act, and other documents,
as such selling Holder may reasonably request in order to facilitate the public
sale or other disposition of the
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Registrable Securities owned by such selling Holder (the Company hereby
consenting to the use in accordance with applicable law of each such
Registration Statement or amendment or post-effective amendment thereto) and
each such Prospectus (or preliminary prospectus or supplement thereto) by each
such selling Holder of Registrable Securities, in connection with the offering
and sale of the Registrable Securities covered by such Registration Statement or
Prospectus);
(d) prior to any public offering of Registrable Securities,
use its best efforts to register or qualify all Registrable Securities and other
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as any selling Holder of Registrable
Securities covered by such Registration Statement may reasonably request to
enable such selling Holder to consummate the disposition in such jurisdictions
of the Registrable Securities owned by such selling Holder and to continue such
registration or qualification in effect in each such jurisdiction for as long as
such Registration Statement remains in effect (including through new filings or
amendments or renewals), and do any and all other acts and things which may be
necessary or advisable to enable any such selling Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
selling Holder; provided, however, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3.1(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general service
of process in any such jurisdiction;
(e) use its best efforts to obtain all other approvals,
consents, exemptions or authorizations from such governmental agencies or
authorities as may be necessary to enable the selling Holders of such
Registrable Securities to consummate the disposition of such Registrable
Securities;
(f) promptly notify Holders' Counsel and each Holder of
Registrable Securities covered by such Registration Statement: (i) when the
Registration Statement, any pre-effective amendment, the Prospectus or any
prospectus supplement related thereto or post-effective amendment to the
Registration Statement has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any state securities or blue sky authority for
amendments or supplements to the Registration Statement or the Prospectus
related thereto or for additional information, (iii) of the issuance by the SEC
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of any proceedings for that purpose, (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the existence of any fact of which the Company becomes aware or
the happening of any event which results in (A) the Registration Statement
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any statements
therein not misleading, or (B) the Prospectus included in such Registration
Statement containing an untrue statement of a material fact or omitting to state
a material fact required to be stated therein or necessary to make any
statements therein, in the light of
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the circumstances under which they were made, not misleading, and (vi) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate or that there exists circumstances
not yet disclosed to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective amendment; and,
if the notification relates to an event described in any of the clauses (ii)
through (vi) of this Section 3.1(f), the Company shall promptly prepare a
supplement or post-effective amendment to such Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that (1) such Registration Statement shall 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,
and (2) as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, 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 in the light of the circumstances
under which they were made not misleading (and shall furnish to each such
Holder, a reasonable number of copies of such Prospectus so supplemented or
amended); and if the notification relates to an event described in clause (iii)
of this Section 3.1(f), the Company shall take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
(g) make available for inspection by any selling Holder of
Registrable Securities, Holders' Counsel and any attorney, accountant or other
agent retained by any such seller (each, an "Inspector" and, collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company and any subsidiaries thereof as may be in
existence at such time (collectively, the "Records") as shall be necessary, in
the opinion of such Holders' counsel, to enable them to exercise their due
diligence responsibility and to conduct a reasonable investigation within the
meaning of the Securities Act, and cause the Company's and any subsidiaries'
officers, directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such Inspectors
in connection with such Registration Statement;
(h) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants who have
certified the Company's financial statements included or incorporated by
reference in such Registration Statement, in each case dated the effective date
of such Registration Statement, in customary form and covering such matters as
are customarily covered by such opinions and "cold comfort" letters delivered to
underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the Majority Holders, and furnish to each Holder
participating in the offering a copy of such opinion and letter addressed to
such Holder;
(i) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such Registration
Statement not later than the effectiveness of such Registration Statement;
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(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and any other governmental agency or
authority having jurisdiction over the offering, and make available to its
security holders, as soon as reasonably practicable but no later than 90 days
after the end of any 12-month period, an earnings statement commencing with the
first day of the Company's calendar month next succeeding each sale of
Registrable Securities after the effective date of a Registration Statement,
which statement shall cover such 12-month periods, in a manner which satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) if so requested by the Majority Holders of the
Registration, use its best efforts to cause all such Registrable Securities to
be listed (i) on each national securities exchange on which the Company's
securities are then listed or, (ii) if securities of the Company are not at the
time listed on any national securities exchange (or, if the listing of
Registrable Securities is not permitted under the rules of each national
securities exchange on which the Company's securities are then listed), on a
national securities exchange or The Nasdaq Stock Market's National Market;
(l) keep each selling Holder of Registrable Securities advised
in writing as to the initiation and progress of any registration under Section 2
hereunder;
(m) enter into and perform customary agreements and provide
officers' certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable
Securities participating in the disposition of such Registrable Securities and
such selling Holder's counsel in connection with any filings required to be made
with the NASD;
(o) furnish to each Holder participating in the offering,
without charge, at least one manually-signed copy of the Registration Statement
and any post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those deemed to be incorporated by reference);
(p) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates not
bearing any restrictive legends representing the Registrable Securities to be
sold and cause such Registrable Securities to be issued in such denominations
and registered in accordance with the instructions of the selling Holders of
Registrable Securities at least three business days prior to any sale of
Registrable Securities; and
(q) use its best efforts to take all other steps necessary to
expedite or facilitate the registration and disposition of the Registrable
Securities contemplated hereby.
3.2 Seller Information. The Company may require each selling Holder of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of disposition as the Company may
from time to time
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reasonably request in writing; provided that such information shall be used only
in connection with such registration.
If any Registration Statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any securities
of the Company, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the Company's securities covered thereby and that such holding does not imply
that such Holder will assist in meeting any future financial requirements of the
Company, and (ii) in the event that such reference to such Holder by name or
otherwise is not in the judgment of the Company, as advised by counsel, required
by the Securities Act or any similar federal statute or any state "blue sky" or
securities law then in force, the deletion of the reference to such Holder.
3.3 Notice to Discontinue. Each Holder of Registrable Securities agrees
by acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
3.1(f)(ii) through (vii), such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.1(f) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable Securities which
is current at the time of receipt of such notice.
ARTICLE IV
INDEMNIFICATION; CONTRIBUTION
4.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its officers, directors, partners, members,
shareholders, employees, Affiliates and agents (collectively, "Agents") and each
Person who controls such Holder (within the meaning of the Securities Act) and
its Agents with respect to each registration which has been effected pursuant to
this Agreement, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof, and expenses (as incurred or suffered and including, but not
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened, and the
reasonable fees, disbursements and other charges of legal counsel) in respect
thereof (collectively, "Claims"), insofar as such Claims arise out of or are
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement thereto) related to any such
registration or any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation thereunder applicable to the Company and relating to action or
inaction
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required of the Company in connection with any such registration, or any
qualification or compliance incident thereto; provided, however, that the
Company will not be liable in any such case to the extent that any such Claims
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material fact so made in
reliance upon and in conformity with written information furnished to the
Company by such Holder specifically for use in a Registration Statement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such indemnified party and shall survive the transfer of
such securities by such Holder.
4.2 Indemnification by Holders. Each Holder, if Registrable Securities
held by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless, to
the fullest extent permitted by law, the Company, its officers, directors,
employees, and Affiliates and each Person who controls the Company (within the
meaning of the Securities Act) and its Agents against any and all Claims,
insofar as such Claims arise out of or are based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (including any preliminary, final or summary prospectus and any
amendment or supplement thereto) related to such registration, or 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, to the
extent, but 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 the Company by such Holder
specifically for use in a Registration Statement; provided, however, that the
aggregate amount which any such Holder shall be required to pay pursuant to this
Section 4.2 shall in no event be greater than the amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities pursuant to
the Registration Statement giving rise to such Claims less all amounts
previously paid by such Holder with respect to any such Claims. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such indemnified party and shall survive the transfer of such
securities by such Holder.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by
an indemnified party of notice of any Claim or the commencement of any action or
proceeding involving a Claim under this Section 4, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
pursuant to Section 4, (i) notify the indemnifying party in writing of the Claim
or the commencement of such action or proceeding; provided, that the failure of
any indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under this Section 4, except to the extent the
indemnifying party is materially and actually prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 4, and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any indemnified
party shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (A) the indemnifying party has agreed
in writing to pay such fees and
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expenses, (B) the indemnifying party shall have failed to assume the defense of
such claim and employ counsel reasonably satisfactory to such indemnified party
within 10 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so, (C) in the reasonable
judgment of any such indemnified party, based upon advice of counsel, a conflict
of interest may exist between such indemnified party and the indemnifying party
with respect to such claims (in which case, if the indemnified party notifies
the indemnifying party in writing that it elects to employ separate counsel at
the expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such indemnified party)
or (D) such indemnified party is a defendant in an action or proceeding which is
also brought against the indemnifying party and reasonably shall have concluded
that there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party. No indemnifying party shall
be liable for any settlement of any such claim or action effected without its
written consent, which consent shall not be unreasonably withheld. In addition,
without the consent of the indemnified party (which consent shall not be
unreasonably withheld), no indemnifying party shall be permitted to consent to
entry of any judgment with respect to, or to effect the settlement or compromise
of any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim), unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim, (2) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party, and (3) does not provide for any
action on the part of any party other than the payment of money damages which is
to be paid in full by the indemnifying party.
4.4 Contribution. If the indemnification provided for in Section 4.1 or
4.2 from the indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted in such Claim, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not
only such relative faults but also the relative benefits of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by a party as a result of any Claim referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section 4.3, any legal or other fees, costs or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. Notwithstanding anything in this Section 4.4 to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 4.4 to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of the Registrable Securities pursuant to
the Registration Statement giving rise to such Claims, less all amounts
previously paid by such indemnifying party with respect to such Claims. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(a) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
4.5 Other Indemnification. Indemnification similar to that specified in
the preceding Sections 4.1 and 4.2 (with appropriate modifications) shall be
given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.
4.6 Indemnification Payments. The indemnification and contribution
required by this Section 4 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is incurred.
ARTICLE V
GENERAL
5.1 Adjustments Affecting Registrable Securities. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
shares which would materially adversely affect the ability of the Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration.
5.2 Registration Rights to Others. The Company is not party to any
agreement with respect to its securities granting any registration rights to any
Person. If the Company shall at any time hereafter provide to any holder of any
securities of the Company rights with respect to the registration of such
securities under the Securities Act, such rights shall not be in conflict with
or adversely affect any of the rights provided in this Agreement to the Holders.
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5.3 Availability of Information. The Company covenants that it shall
timely file any reports required to be filed by it under the Securities Act or
the Exchange Act (including, but not limited to, the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c) of Rule 144 under
the Securities Act), and that it shall take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (ii) any other rule or regulation now existing or
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
5.4 Amendments and Waivers. The provisions of this Agreement may not be
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, without the written
consent of the Company and the Holders holding more than 50% of the Registrable
Securities then outstanding; provided, however, that no such amendment,
modification, supplement, waiver or consent to departure shall reduce the
aforesaid percentage of Registrable Securities without the written consent of
all of the Holders of Registrable Securities; and provided, further, that
nothing herein shall prohibit any amendment, modification, supplement,
termination, waiver or consent to departure the effect of which is limited only
to those Holders who have agreed to such amendment, modification, supplement,
termination, waiver or consent to departure.
5.5 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, telecopier, any
courier guaranteeing overnight delivery or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to the applicable
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties in accordance with the
provisions of this Section:
If to the Company, to:
Ambassadors Group, Inc.
Xxxxxx X. Xxxxxxxxxx Building
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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With a copy to:
Richman, Mann, Chizever, Xxxxxxxx & Xxxxxx, PLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Initial Holder, to:
Invemed Catalyst Fund, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Present
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to any subsequent Holder, to the address of such Person set forth in
the records of the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; on the next business day, if timely delivered to a
courier guaranteeing overnight delivery; and five days after being deposited in
the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
5.6 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and other Holders.
5.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument. Any party may execute and deliver a counterpart to
this Agreement by delivering by facsimile or electronic mail transmission a
signature page of this Agreement signed by such party, and such facsimile or
electronic mail signature shall be treated in all respects as having the same
effect as an original signature.
15
5.8 Descriptive Headings, Etc. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof', "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to the Sections and
paragraphs of this Agreement unless otherwise specified; (4) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified; (5) "or" is not
exclusive; and (6) provisions apply to successive events and transactions.
5.9 Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
5.10 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York (without giving effect to
the conflict of laws principles thereof).
5.11 Remedies; Specific Performance. The parties hereto acknowledge
that money damages would not be an adequate remedy at law if any party fails to
perform in any material respect any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to seek to compel
specific performance of the obligations of any other party under this Agreement,
without the posting of any bond, in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law. Except as otherwise provided by
law, a delay or omission by a party hereto in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy shall be exclusive of
any other remedy. All available remedies shall be cumulative.
5.12 Entire Agreement. This Agreement and the Purchase Agreement are
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants or undertakings
relating to such subject matter, other than those set forth or referred to
herein or in the Purchase Agreement. This
16
Agreement and the Purchase Agreement supersede all prior agreements and
understandings between the Company and the other parties to this Agreement with
respect to such subject matter.
5.13 Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
5.14 Consent to Jurisdiction; Waiver of Jury. Each party to this
Agreement hereby irrevocably and unconditionally agrees that any legal action,
suit or proceeding arising out of or relating to this Agreement or any
agreements or transactions contemplated hereby may be brought in any federal
court of the Southern District of New York or any state court located in New
York County, State of New York, and hereby irrevocably and unconditionally
expressly submits to the personal jurisdiction and venue of such courts for the
purposes thereof and hereby irrevocably and unconditionally waives any claim (by
way of motion, as a defense or otherwise) of improper venue, that it is not
subject personally to the jurisdiction of such court, that such courts are an
inconvenient forum or that this Agreement or the subject matter may not be
enforced in or by such court. Each party hereby irrevocably and unconditionally
consents to the service of process of any of the aforementioned courts in any
such action, suit or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the address set forth or provided for in
Section 5.5 of this Agreement, such service to become effective 10 days after
such mailing. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction to enforce judgments obtained in any action, suit or proceeding
brought pursuant to this Section. Each of the parties hereby irrevocably waives
trial by jury in any action, suit or proceeding, whether at law or equity,
brought by any of them in connection with this Agreement or the transactions
contemplated hereby.
5.15 Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
5.16 No Inconsistent Agreements. The Company will not hereafter enter
into any agreement which is inconsistent with the rights granted to the Holders
in this Agreement.
17
5.17 Construction. The Company and the Holders acknowledge that each of
them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by the Company and the
Holders.
[SIGNATURES ON THE FOLLOWING PAGE]
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
INVEMED CATALYST FUND, L.P.
By: Invemed Catalyst GenPar, LLC,
its general partner
By: Gladwyne Catalyst GenPar, LLC,
its managing member
------------------------------------
Name: Xxxxxxx Present
Title: Member
AMBASSADORS GROUP, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
19
TABLE OF CONTENTS
ARTICLE I DEFINITIONS................................................................................... 1
ARTICLE II REGISTRATION UNDER THE SECURITIES ACT........................................................ 4
2.1 Shelf Registration Statement.......................................................... 4
2.2 Expenses.............................................................................. 5
2.3 Postponements......................................................................... 5
ARTICLE III REGISTRATION PROCEDURES..................................................................... 6
3.1 Obligations of the Company............................................................ 6
3.2 Seller Information.................................................................... 9
3.3 Notice to Discontinue................................................................. 10
ARTICLE IV INDEMNIFICATION; CONTRIBUTION................................................................ 10
4.1 Indemnification by the Company........................................................ 10
4.2 Indemnification by Holders............................................................ 11
4.3 Conduct of Indemnification Proceedings................................................ 11
4.4 Contribution.......................................................................... 12
4.5 Other Indemnification................................................................. 13
4.6 Indemnification Payments.............................................................. 13
ARTICLE V GENERAL ...................................................................................... 13
5.1 Adjustments Affecting Registrable Securities.......................................... 13
5.2 Registration Rights to Others......................................................... 13
5.3 Availability of Information........................................................... 14
5.4 Amendments and Waivers................................................................ 14
5.5 Notices............................................................................... 14
5.6 Successors and Assigns................................................................ 15
5.7 Counterparts.......................................................................... 15
5.8 Descriptive Headings, Etc............................................................. 16
5.9 Severability.......................................................................... 16
5.10 Governing Law......................................................................... 16
5.11 Remedies; Specific Performance........................................................ 16
5.12 Entire Agreement...................................................................... 16
5.13 Nominees for Beneficial Owners........................................................ 17
5.14 Consent to Jurisdiction; Waiver of Jury............................................... 17
5.15 Further Assurances.................................................................... 17
5.16 No Inconsistent Agreements............................................................ 17
5.17 Construction.......................................................................... 18
