REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of ________
___, 2004, among Xxxxx & Steers, Inc., a Delaware corporation (the "Company"),
Xxxxxx Xxxxx, Xxxxxx X. Xxxxxx, The Xxxxxx Xxxxx 1998 Family Trust and Xxxxxx X.
Xxxxxx Family Trust (each an "Investor" and together the "Investors").
RECITALS
WHEREAS, the Investors are the sole stockholders of Xxxxx & Steers
Capital Management, Inc., a New York corporation ("CSCM");
WHEREAS, pursuant to the Merger Agreement (the "Merger Agreement"),
dated as of the date hereof, among the Company, CSCM and CSCM Merger Sub, Inc.,
a New York corporation ("CSCM Merger Sub"), the parties thereto have agreed that
CSCM Merger Sub will merge with and into CSCM (the "Merger") and that each
outstanding share of CSCM will be converted into the right to receive a share of
newly-issued shares of Common Stock (as defined below) of the Company, whereupon
CSCM will become a wholly-owned subsidiary of the Company and the Investors will
be the sole stockholders of the Company; and
WHEREAS, it is a condition to the Merger that the Company enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements contained in this Agreement, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:
"Affiliate": as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition "control"
(including, with correlative meanings, the terms "controlling", "controlled
by" and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through
the ownership of voting securities (the ownership of more than 50% of the
voting securities of an entity shall for purposes of this definition be
deemed to be "control"), by contract or otherwise. A natural person shall
be considered an "Affiliate" of another natural person if such other
natural person is a relative or spouse of such natural person, or any
relative of such spouse, any one of whom has the same home as such natural
person.
"Common Stock": The shares of Common Stock, $0.01 par value per share,
of the Company and any stock into which such common stock may thereafter be
converted or exchanged.
"Demand Party": (a) each of the Investors and (b) any other Holder or
Holders, including, without limitation, any Person that may become an
assignee of any of the Investor's rights hereunder; provided that to be a
Demand Party under this clause (b), a Holder or Holders must either
individually or in aggregate with all other Holders with whom it is acting
together to demand registration, own at least 1% of the total number of
Registrable Securities.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"Holder": (i) Each of the Investors (including the executors,
administrators, testamentary trustees, legatees or beneficiaries of any of
Xxxxxx Xxxxx or Xxxxxx X. Xxxxxx upon the death of such Person), (ii) any
Affiliate of any of the Investors (which shall not, for the avoidance of
doubt, include the Company) and (iii) any other Person to whom any of the
foregoing transfer Registrable Securities and assign their rights
hereunder, but only to the extent of the terms of the assignment of such
rights; provided that such Person agrees in writing to be bound by the
provisions of this Agreement.
"Person": Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
"Registrable Securities": shall mean (i) any Common Stock held or
acquired by any Holder, including shares issued or issuable upon the
conversion, exchange or exercise of any security convertible, exchangeable
or exercisable into Common Stock, (ii) any security of the Company held or
acquired by any Holder which is convertible, exchangeable or exercisable
into Common Stock and (iii) any Common Stock or any security convertible,
exchangeable or exercisable into Common Stock which may be issued or
distributed in respect thereof by way of stock dividend or stock split or
other distribution, recapitalization or reclassification. As to any
particular Registrable Securities, once issued, such Registrable Securities
shall cease to be Registrable Securities when (a) a registration statement
with respect to the sale by the Holder of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) such
securities shall have been distributed to the public pursuant to Rule 144
(or any successor provision) under the Securities Act, (c) such securities
shall have been otherwise transferred, new certificates for such securities
not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of such securities shall not
require registration or qualification of such securities under the
Securities Act or any state securities or blue sky law then in force, or
(d) such securities shall have ceased to be outstanding. For purposes of
this Agreement, any required calculation of the amount of, or percentage
of, Registrable Securities shall be based on the number of shares of Common
Stock which are Registrable Securities, including shares issuable upon the
conversion, exchange or exercise of any security convertible, exchangeable
or exercisable into Common Stock.
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"Registration Expenses": Any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i)
all SEC and stock exchange or National Association of Securities Dealers,
Inc. (the "NASD") registration and filing fees (including, if applicable,
the fees and expenses of any "qualified independent underwriter," as such
term is defined in Rule 2720 of the NASD, and of its counsel), (ii) all
fees and expenses of complying with securities or blue sky laws (including
fees and disbursements of counsel for the underwriters in connection with
blue sky qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to clause (viii) of Section 4 hereof and all rating
agency fees, (v) the fees and disbursements of counsel for the Company and
of its independent public accountants, including the expenses of any
special audits and/or "cold comfort" letters required by or incident to
such performance and compliance, (vi) the reasonable fees and disbursements
of counsel selected pursuant to Section 7 hereof by the Holders of the
Registrable Securities being registered to represent such Holders in
connection with each such registration, (vii) any fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities,
including liability insurance if the Company so desires or if the
underwriters so require, and the reasonable fees and expenses of any
special experts retained in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if
any, and (viii) other reasonable out-of-pocket expenses of Holders
(provided, that such expenses shall not include expenses of counsel other
than those provided for in clause (vi) above).
"Securities Act": The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
"SEC": The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
2. Incidental Registrations. (a) Right to Include Registrable
Securities. If the Company at any time after the date hereof proposes to
register its Common Stock (or any security which is convertible or exchangeable
into or exercisable for Common Stock) under the Securities Act (other than a
registration on Form S-4 or S-8, or any successor or other forms promulgated for
similar purposes), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Securities for sale to the public
under the Securities Act, it will, at each such time, give prompt written notice
to all Holders of Registrable Securities of its intention to do so and of such
Holders' rights under this Section 2. Upon the written request of any such
Holder made within 15 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
Holder), the Company will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof, to the extent requisite to permit
the disposition of the Registrable Securities to be so registered; provided,
that (i) if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed
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registration of the securities to be sold by it, the Company may, at its
election, give written notice of such determination to each Holder of
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), and (ii) if such registration involves an underwritten offering, all
Holders requesting to be included in the Company's registration must sell their
Registrable Securities to the underwriters selected by the Company on the same
terms and conditions as apply to the Company, with such differences, including
any with respect to indemnification and liability insurance, as may be customary
or appropriate in combined primary and secondary offerings. If a registration
requested pursuant to this Section 2(a) involves an underwritten public
offering, any Holder requesting to be included in such registration may elect,
in writing prior to the effective date of the registration statement filed in
connection with such registration, not to register such securities in connection
with such registration. Nothing in this Section 2 shall operate to limit the
right of any Holder to (i) request the registration of Common Stock issuable
upon conversion, exchange or exercise of securities held by such Holder
notwithstanding the fact that at the time of request such Holder does not hold
the Common Stock underlying such securities or (ii) request the registration at
one time of both securities convertible, exchangeable or exercisable into Common
Stock and the Common Stock underlying any such securities.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.
(c) Priority in Incidental Registrations. If a registration pursuant to
this Section 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of Registrable
Securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be reasonably likely to have an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then the Company will include in such registration (i) first,
100% of the securities proposed to be sold by the Company and (ii) second, to
the extent of the number of securities requested to be included in such
registration which, in the opinion of such managing underwriter, can be sold
without having the adverse effect referred to above, which number of securities
shall be allocated pro rata among all such requesting Holders of Registrable
Securities, on the basis of the relative number of shares of Registrable
Securities then held by each such Holder of Registrable Securities (provided,
that any such amount thereby allocated to any such Holder that exceeds such
Holder's request shall be reallocated among the remaining requesting Holders in
like manner).
3. Registration on Request. (a) Request by the Demand Party. At any
time upon the written request of a Demand Party requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, the Company will promptly give written notice of such
requested registration to all other Holders of all other Registrable Securities
of the same class or series as are to be registered at the request of such
Demand Party, and thereupon will, as expeditiously as possible, use its best
efforts to effect the registration under the Securities Act of:
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(i) such Registrable Securities which the Company has been so requested
to register by the Demand Party; and
(ii) all other Registrable Securities of the same class or series as
are to be registered at the request of a Demand Party and which the Company
has been requested to register by any other Holder thereof by written
request given to the Company within 15 days after the giving of written
notice by the Company,
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities to be so
registered; provided that, with respect to any Demand Party other than the
Investors, the Company shall not be obligated to effect any registration under
this Section 3(a) unless such Demand Party requests that the Company register at
least 1% of the total number of Registrable Securities; and provided, further,
that the Company shall not be obligated to file a registration statement
relating to any registration request under this Section 3(a):
(x) within a period of 180 days after the effective date of any other
registration statement relating to any registration request under this
Section 3(a) which was not effected on Form S-3 (or any successor or
similar short-form registration statement) or relating to any registration
effected under Section 2;
(y) if with respect thereto the managing underwriter, the SEC, the
Securities Act or the rules and regulations thereunder, or the form on
which the registration statement is to be filed, would require the conduct
of an audit other than the regular audit conducted by the Company at the
end of its fiscal year, in which case the filing may be delayed until the
completion of such audit (and the Company shall, upon request of the
requesting Demand Holder, use its best efforts to cause such audit to be
completed expeditiously and without unreasonable delay), unless the Holders
of the Registrable Securities to be registered agree to pay the expenses of
the Company in connection with such an audit other than the regular audit;
or
(z) if the Company is in possession of material non-public information
and the Board of Directors of the Company determines in good faith that
disclosure of such information would not be in the best interests of the
Company and its stockholders, in which case the filing of the registration
statement may be delayed until the earlier of (i) the second business day
after such conditions shall have ceased to exist and (ii) the 90th day
after receipt by the Company of the written request from a Demand Party to
register Registrable Securities under this Section 3(a), provided that, the
Company shall not be permitted to postpone registration pursuant to this
clause (z) more than once in any 360-day period.
Nothing in this Section 3 shall operate to limit the right of any Holder to (i)
request the registration of Common Stock issuable upon conversion, exchange or
exercise of securities held by such Holder notwithstanding the fact that at the
time of request such Holder does not hold the Common Stock underlying such
securities or (ii) request the registration at one time of both securities
convertible, exchangeable or exercisable into Common Stock and the Common Stock
underlying any such securities. Notwithstanding anything to the contrary herein,
no Person shall
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be entitled to include Registrable Securities in the Registration Statement on
Form S-1 (Registration Statement No. 333-114027) filed by the Company in respect
of the initial public offering of the Common Stock (the "IPO Registration
Statement") and the Company shall not be obligated to file a registration
statement relating to any registration request under this Section 3(a) within a
period of 180 days from the effective date of the IPO Registration Statement.
(b) Registration Statement Form. If any registration requested pursuant
to this Section 3 which is proposed by the Company to be effected by the filing
of a registration statement on Form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise the Company in writing
that, in its opinion, the use of another form of registration statement is of
material importance to the success of such proposed offering, then such
registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the first ten (10) registrations of each class or series of
Registrable Securities pursuant to this Section 3 upon the written request of
any of the Holders, provided that, for purposes hereof, a request to register
Common Stock into which a convertible security is convertible in conjunction
with a registration of such convertible security shall be deemed to be one
request for registration of a class or series of Registrable Securities. All
expenses for any subsequent registrations of Registrable Securities pursuant to
this Section 3 shall be paid pro rata by the Company and all other Persons
(including the Holders) participating in such registration on the basis of the
relative number of shares of Common Stock of each such Person whose Registrable
Securities are included in such registration.
(d) Effective Registration Statement. A registration requested pursuant
to this Section 3 will not be deemed to have been effected unless it has become
effective; provided that, if within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be deemed not to have
been effected.
(e) Selection of Underwriters. If a requested registration pursuant to
this Section 3 involves an underwritten offering, the Holders of a majority of
the shares of Registrable Securities which are held by Holders and which the
Company has been requested to register shall have the right to select the
investment banker or bankers and managers to administer the offering; provided,
however, that such investment banker or bankers and managers shall be reasonably
satisfactory to the Company.
(f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be reasonably likely to have an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then the Company will include in such registration the number of
shares of Registrable Securities requested to be included in such registration
which, in the opinion of such managing underwriter, can be sold without having
the adverse effect referred to above, which number shall
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be allocated pro rata among all such requesting Holders of Registrable
Securities on the basis of the relative number of shares of Registrable
Securities then held by each such Holder. In the event that the number of
Registrable Securities entitled to registration rights with respect to such
Registrable Securities requested to be included in such registration is less
than the number which, in the opinion of the managing underwriter, can be sold,
the Company may include in such registration securities it proposes to sell for
its own account up to the number of securities that, in the opinion of the
underwriter, can be sold.
(g) Additional Rights. If the Company at any time grants to any other
holders of securities any rights to request the Company to effect the
registration under the Securities Act of any such securities on terms more
favorable to such holders than the terms set forth in this Section 3, the terms
of this Section 3 shall be deemed amended or supplemented to the extent
necessary to provide the Holders such more favorable rights and benefits.
4. Registration Procedures. If and whenever the Company is required to
use its best efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Agreement, the Company
will, as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the
Company, file with the SEC a registration statement with respect to such
Registrable Securities and use its best efforts to cause such registration
statement to become effective, provided, however, that the Company may
discontinue any registration of its securities which is being effected
pursuant to Section 2 at any time prior to the effective date of the
registration statement relating thereto;
(ii) 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 to keep such registration statement
effective for a period not in excess of 270 days and to comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided that
before filing a registration statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to counsel selected pursuant
to Section 7 hereof by the Holders of the Registrable Securities covered
by such registration statement to represent such Holders copies of all
documents proposed to be filed, which documents will be subject to the
review of such counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;
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(iv) use its best efforts to register or qualify such Registrable
Securities covered by such registration in such jurisdictions as each
seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of any such Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii) of this Section 4, of the
Company's becoming aware that the prospectus included 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 the light of
the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
(viii) (a) if such Registrable Securities are Common Stock
(including Common Stock issuable upon conversion, exchange or exercise of
another security), use its best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then
listed if such Registrable Securities are not already so listed and if
such listing is then permitted under the rules of such exchange; (b) if
such Registrable Securities are convertible, exchangeable or exercisable
into Common Stock, upon the reasonable request of sellers of a majority of
such Registrable Securities, use its best efforts to list such securities
and, if requested, the Common Stock underlying such securities,
notwithstanding that at the time of request such sellers hold only such
securities, on any securities exchange so requested, if such Registrable
Securities are not already so listed and if such listing is then permitted
under the rules of such exchange; and (c) use its best efforts to provide
a transfer agent and registrar for such Registrable
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Securities covered by such registration statement not later than the
effective date of such registration statement;
(ix) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions
in favor of underwriters and other persons in addition to, or in
substitution for the provisions of Section 5 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities
or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(x) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or
sellers of a majority of shares of such Registrable Securities shall
reasonably request (provided that Registrable Securities constitute at
least 25% of the securities covered by such registration statement);
(xi) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of 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;
(xii) notify counsel (selected pursuant to Section 7 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the notice
in writing (i) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective, or
any supplement to the prospectus or any amendment prospectus shall have
been filed, (ii) of the receipt of any comments from the SEC, (iii) of any
request of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information, and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such
purposes;
(xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or agent or such
Holder reasonably requests to be included therein, including,
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without limitation, with respect to the number of Registrable Securities
being sold by such Holder to such underwriter or agent, the purchase price
being paid therefor by such underwriter or agent and with respect to any
other terms of the underwritten offering of the Registrable Securities to
be sold in such offering; and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
agent, if any, or such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions
from counsel for the Company in customary form and in form, substance and
scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel; and
(xvii) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirementst
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 4, such Holder will 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 clause (vi) of this
Section 4, and, if so directed by the Company, such Holder will 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 current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (ii) of this
Section 4 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of this
Section 4 and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4.
5. Indemnification. (a) Indemnification by the Company. In the event of
any registration of any securities of the Company under the Securities Act
pursuant to Section 2 or 3,
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the Company will, and it hereby does, indemnify and hold harmless, to the extent
permitted by law, the seller of any Registrable Securities covered by such
registration statement, each affiliate of such seller and their respective
directors and officers or general and limited partners or members and managing
members (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act (collectively, the "Indemnified Parties"), against
any and all losses, claims, damages or liabilities, joint or several, and
expenses (including reasonable attorney's fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof, whether or not
such Indemnified Party is a party thereto) arise out of or are based upon (a)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, or (b) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in light
of the circumstances under which they were made) not misleading, and the Company
will reimburse such Indemnified Party for any legal or any other expenses
reasonably incurred by it in connection with investigating or defending against
any such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable to any Indemnified Party 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 any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or amendment or supplement thereto or in any such
preliminary, final or summary prospectus in reliance upon and in conformity with
written information furnished to the Company with respect to such seller through
an instrument duly executed by such seller specifically stating that it is for
use in the preparation thereof;
(b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 5) the Company and all other prospective sellers with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement, if 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 with
respect to such seller through an instrument duly executed by such seller or
underwriter specifically stating that it is for use in the preparation of such
registration statement, preliminary, final or summary prospectus or amendment or
supplement, or a document incorporated by reference into any of the foregoing.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any of the prospective
sellers, or any of their respective affiliates, directors, officers or
controlling Persons and shall survive the transfer of such securities by such
seller. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
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received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Notices of Claims, Etc. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, 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, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, 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
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party will 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) Contribution. If the indemnification provided for in this Section 5
from the indemnifying party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, 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 losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and Indemnified Parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and Indemnified Parties 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 Parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 5(d) as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the
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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) Other Indemnification. Indemnification similar to that specified in
the preceding subdivisions of this Section 5 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any federal or state law or regulation or governmental authority other than the
Securities Act.
(f) Non-Exclusivity. The obligations of the parties under this Section
5 shall be in addition to any liability which any party may otherwise have to
any other party.
6. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available such information), and it will
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 shares of 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
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may deregister
under Section 12 of the Exchange Act if it then is permitted to do so pursuant
to the Exchange Act and the rules and regulations thereunder.
7. Selection of Counsel. In connection with any registration of
Registrable Securities pursuant to Sections 2 or 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
8. Miscellaneous. (a) Holdback Agreement. If any registration of
Registrable Securities pursuant to Sections 2 or 3 hereof shall be in connection
with an underwritten public offering, each Holder of Registrable Securities
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144 under the Securities Act, of any equity securities of the
Company, or of any security convertible into or exchangeable or exercisable for
any equity security of the Company (in each case, other than as part of such
underwritten public offering), within 7 days before or such period not to exceed
180 days as the underwriting agreement may require (or such lesser period as the
managing underwriters may permit) after the closing date of such underwritten
public offering.
(b) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such
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amendment, action or omission to act, of the Holders of a majority of the
Registrable Securities then outstanding; provided, however, that no amendment,
waiver or consent to the departure from the terms and provisions of this
Agreement that is adverse to the Investors or any of their respective successors
and assigns shall be effective as against any such Person for so long as such
Person holds any Registrable Securities unless consented to in writing by such
Person. Each Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 8(b),
whether or not such Registrable Securities shall have been marked to indicate
such consent.
(c) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein. Without limitation to
the foregoing, in the event that any of The Xxxxxx Xxxxx 1998 Family Trust or
Xxxxxx X. Xxxxxx Family Trust distributes or otherwise transfers any shares of
the Registrable Securities to any of its beneficiaries, the Company hereby
acknowledges that the registration rights granted pursuant to this Agreement
shall be transferred to any such beneficiaries on a pro rata basis, and that at
or after the time of any such distribution or transfer, any such beneficiary may
designate a Person to act on their behalf in delivering any notices or making
any requests hereunder.
(d) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
telecopier or hand delivery:
(i) if to the Company, to:
Xxxxx & Steers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Xx., Esq.
(ii) if to Xxxxxx Xxxxx, to:
c/x Xxxxx & Steers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
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(iii) if to Xxxxxx X. Xxxxxx, to:
c/x Xxxxx & Steers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
(iv) if to The Xxxxxx Xxxxx 1998 Family Trust, to:
c/x Xxxxx & Steers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx, as Trustee
(v) if to Xxxxxx X. Xxxxxx Family Trust, to:
c/o Cohen & Steers, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, as Trustee
(vi) if to any other holder of Registrable Securities,
to the address of such other holder as shown in the
stock record book of the Company, or to such
other address as any of the above shall have
designated in writing to all of the other above.
All such notices and communications shall be deemed to have been given
or made (A) when delivered by hand, (B) five business days after being deposited
in the mail, postage prepaid, (C) when telexed answer-back received or (D) when
telecopied, receipt acknowledged.
(e) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(f) 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 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.
(g) Counterparts. This Agreement may be executed in counterparts, and
by different parties on separate counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
(h) Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York applicable to contracts made and to be performed therein. The
parties to this Agreement hereby
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agree to submit to the jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof in any action or proceeding arising out of
or relating to this Agreement.
(i) Specific Performance. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that they shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
or caused this Agreement to be duly executed on its behalf as of the date first
written above.
Xxxxx & Steers, Inc.
------------------------------
By:
Title:
-------------------------------
Xxxxxx Xxxxx
-------------------------------
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx, as Trustee for
The Xxxxxx Xxxxx 1998 Family Trust
------------------------------
Xxxxxx X. Xxxxxx, as Trustee for
Xxxxxx X. Xxxxxx Family Trust
------------------------------
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