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Exhibit 10.6
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated -, 1999 (this
"Agreement"), between Xxxxxx Worldwide, Inc., a Delaware corporation ("Issuer"),
and Xxxxxx Corporation, Inc., a Delaware corporation ("Stockholder").
WHEREAS, Issuer and Stockholder have entered into a
Distribution Agreement, dated as of -, 1999, pursuant to which Issuer will issue
to Stockholder - shares of common stock, par value $0.01 per share, of Issuer
(the "Common Stock"); and
WHEREAS, on -, 1999 (the "Distribution Date") Stockholder
intends to make a pro rata distribution to its stockholders of approximately 90%
of the shares of Common Stock outstanding as of the Distribution Date; and
WHEREAS, Stockholder intends to retain approximately 10% of
the shares of Common Stock outstanding as of the Distribution Date (such shares
so retained, the "Shares");
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
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1.01 DEFINITIONS. Capitalized terms used but not defined in
this Agreement have the respective meanings ascribed to such terms in the
Distribution Agreement. In addition, the following terms shall have the
following meanings:
(a) "COMMISSION" means the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act or the
Exchange Act, as applicable, whichever is the relevant statute.
(b) "COMMON STOCK" has the meaning set forth in the Recitals.
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(d) "DEMAND REGISTRATION STATEMENT" has the meaning set forth
in Section 2.02(a).
(e) "DISTRIBUTION AGREEMENT" has the meaning set forth in the
Recitals.
(f) "DISTRIBUTION DATE" has the meaning set forth in the
Recitals.
(g) "EFFECTIVE PERIOD" has the meaning set forth in Section
2.02(b).
(h) "EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended or any similar successor federal statute and the rules and
regulations of the Commission thereunder, all as shall be in effect from time to
time.
(i) "EXPENSES" has the meaning set forth in Section 2.04.
(j) "INDEMNIFIED PARTY" has the meaning set forth in Section
2.05(c).
(k) "INDEMNIFYING PARTY" has the meaning set forth in Section
2.05(c).
(l) "INSPECTORS" has the meaning set forth in Section
2.03(iv).
(m) "ISSUER" has the meaning set forth in the Preamble.
(n) "PERSON" means any individual, corporation, limited
liability company, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
(o) "RECORDS" has the meaning set forth in Section 2.03(iv).
(p) "REGISTERED SHARES" means the Shares of which resales by
the Stockholder have been registered under the Registration Statement.
(q) "SECURITIES" means the Shares until, in the case of any
particular Share, it is (i) disposed of in accordance with the Registration
Statement, (ii) distributed to the public pursuant to Rule 144 under the
Securities Act or (iii) no longer owned of record or beneficially by
Stockholder.
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(r) "REGISTRATION STATEMENT" has the meaning set forth in
Section 2.02(b).
(s) "RELEASE DATE" has the meaning set forth in Section
2.01(a).
(t) "SECURITIES ACT" means the Securities Act of 1933, as
amended or any similar successor federal statute and the rules and regulations
of the Commission thereunder, all as shall be in effect from time to time.
(u) "SHARES" has the meaning set forth in the Recitals.
(v) "SHELF REGISTRATION STATEMENT" has the meaning set forth
in Section 2.02(b).
(w) "STOCKHOLDER" has the meaning set forth in the Preamble.
1.02 HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
ARTICLE II
RESTRICTIONS AND RIGHTS
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2.01 RESTRICTIONS. (a) During the period beginning on the
Distribution Date and ending on the 180th calendar day following the
Distribution Date (such date, the "Release Date"), the Stockholder shall not
offer, sell, contract to sell or otherwise dispose of any of the Shares. Any
contrary provision of this Agreement notwithstanding, no provision of this
Agreement shall prohibit, limit, restrict or pertain to the offer, sale,
disposition or voting of shares of Common Stock (i) distributed in respect of
shares of the Stockholder's common stock granted pursuant to the Stockholders=
performance share award program, or (ii) held by any savings plan in which
directors, officers or employees of the Stockholder may be entitled to
participate.
(b) On any matter subject to a vote of stockholders of Issuer,
Stockholder shall vote or cause to be voted all of the Shares owned by it of
record and/or of which it is the beneficial owner in proportion to the
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aggregate votes cast by other stockholders of Issuer entitled to vote on such
matter.
2.02 REGISTRATION RIGHTS. (a) At any time during the period of
time following the 120th calendar day following the Distribution Date and
terminating on the second anniversary of the Distribution Date (the "Effective
Period"), the Stockholder shall have the right on two occasions to require the
Issuer to file with the Commission a registration statement under the Securities
Act providing for the registration under the Securities Act of all or a portion
of the Shares held by the Stockholder (each, a "Demand Registration Statement"),
one of which may be a Shelf Registration Statement (as defined below). As
promptly as practicable, but in no event later than 30 calendar days after
Issuer receives a written request from the Stockholder to file the Demand
Registration Statement, Issuer shall file with the Commission and thereafter
cause to be declared effective promptly the related Demand Registration
Statement with respect to such number of Shares as Stockholder shall have
demanded be registered.
(b) As promptly as practicable, but in no event later than 30
calendar days after Issuer receives a written request from such Stockholder
therefor (which request must be given during the Effective Period), which
written request shall be counted as one of the two demand rights stockholder
holds pursuant to Section 2.02(b), Issuer shall cause to be filed in conformity
with the requirements of the Securities Act a "shelf" registration statement on
any appropriate form pursuant to Rule 415 under the Securities Act (including
all amendments thereto, a "Shelf Registration Statement" and, collectively with
any Demand Registration Statement, a "Registration Statement") in respect of the
resale from time to time by Stockholder, in the manner designated by it in its
request, of the number of Shares designated by Stockholder in its request. Prior
to filing the Registration Statement, Issuer will furnish a draft thereof to
Stockholder and shall not file the Registration Statement without Stockholder's
prior consent, which consent shall not be unreasonably withheld. Issuer shall
use its reasonable efforts to cause the Registration Statement to be declared
effective under the Securities Act within 60 calendar days after the receipt of
the request therefor and shall use its reasonable efforts to keep the
Registration Statement continuously effective under the Securities Act during
the period of time (such period being referred to herein as the "Effective
Period") following the initial effectiveness of the Registration Statement and
terminating upon the earlier to occur of the date that (i) Stockholder no longer
holds any Securities or (ii) is the second anniversary of the
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Distribution Date (the "Termination Date"); PROVIDED, HOWEVER, that the
Termination Date shall be extended by any period of time Stockholder may be
unable to effect sales of Registered Shares under Sections 2.03(b) or 2.03(c).
Each Registration Statement shall relate only to the offer and sale of Shares by
the Stockholder and shall not relate to the offer and sale of securities other
than the Shares or to offers or sales by any person or entity other than the
Stockholder.
2.03 REGISTRATION PROCEDURES. (a) In connection with any
Registration Statement, and in accordance with the intended method or methods of
distribution of the Registered Shares as described in writing by Stockholder and
set forth in such Registration Statement or any prospectus supplement contained
therein, Issuer shall, as soon as reasonably practicable (and, in any event,
subject to the terms of this Agreement, at or before the time required by
applicable laws and regulations), but only during the Effective Period:
(i) promptly amend the Registration Statement and
amend or supplement the prospectus incorporated therein (A) to cover
additional Shares, in the event that the number of Shares shall be
increased as a result of a stock split or similar event following the
issuance of any Shares, (B) if required by the registration form
utilized by Issuer for the Registration Statement or by the
instructions applicable to such registration form or otherwise required
by the Securities Act or the rules and regulations thereunder, (C) at
the request of Stockholder, to describe the intended method or methods
of distribution of the Registered Shares pursuant to a written
description furnished by Stockholder, and (D) to the extent necessary
to ensure that the Registration Statement, any prospectus incorporated
therein, and any amendment or supplement thereto, will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of any prospectus, in the light of the
circumstances under which they were made) not misleading; and use its
reasonable efforts to cause any such amendment to the Registration
Statement to be declared effective as soon as practicable after the
filing thereof; PROVIDED, HOWEVER, that Issuer shall furnish copies of
such amendment at a reasonable time prior to the filing thereof and
shall not make any such filing to which Stockholder shall have
reasonably and timely objected; and PROVIDED, FURTHER, that the
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foregoing proviso shall not apply to any document filed by Issuer
pursuant to the Exchange Act which is, or is
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deemed to be, incorporated by reference in any Registration Statement
or any prospectus or prospectus supplement;
(ii) furnish without charge to Stockholder, any sales
or placement agent and any underwriter of Registered Shares, a
reasonable number of copies of the Registration Statement and each
amendment thereto (in each case including all exhibits thereto), each
prospectus or prospectus supplement included in the Registration
Statement (including each preliminary prospectus) and any amendments or
supplements thereto and (upon request by Stockholder) any documents
incorporated therein by reference;
(iii) comply with the provisions of the Securities
Act and all applicable rules and regulations of the Commission with
respect to the disposition of all Registered Shares covered by the
Registration Statement in accordance with the intended method or
methods of distribution thereof set forth in the Registration Statement
or any prospectus supplement contained therein;
(iv) make available for inspection by Stockholder or
by any underwriter, attorney, accountant or other agent retained by
Stockholder (collectively, the "Inspectors") financial and other
records and pertinent corporate documents of Issuer (collectively, the
"Records"), provide the Inspectors with opportunities to discuss the
business of Issuer with its officers, and provide opportunities to
discuss the business of Issuer with the independent public accountants
who have certified its most recent annual financial statements, in each
case to the extent but only to the extent reasonably necessary to
enable Stockholder or any underwriter retained by Stockholder to
conduct a "reasonable investigation" for purposes of Section 11(a) of
the Securities Act. Records which Issuer determines, in good faith, to
be confidential and which it notifies the Inspectors are confidential
shall not be disclosed to any Inspector unless such Inspector enters
into a confidentiality agreement in customary form and reasonably
acceptable to such parties and Issuer and (A) the disclosure of such
Records is necessary to avoid or correct a misstatement of a material
fact or omission to state a material fact in the Registration
Statement, (B) the disclosure of such Records is required by any court
or governmental body with jurisdiction over Stockholder or such
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Inspector or (C) all of the information contained in such Records has
been made generally available to the public. Stockholder will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction or by any governmental body, promptly give prior
notice to Issuer and allow Issuer, at its expense, to undertake
appropriate action to prevent disclosure of those Records deemed
confidential;
(v) promptly notify Stockholder, each sales or
placement agent and each underwriter of Registered Shares (A) when the
Registration Statement or any related prospectus or any amendment or
supplement has been filed, and, with respect to the Registration
Statement or any amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments or supplements to
the Registration Statement or the related prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose, (D) of the receipt by
Issuer of any notification with respect to the suspension of the
qualification of the Registered Shares for sale in any jurisdiction or
the initiation of any proceeding for such purpose or (E) of the
happening of any event which makes any statement in the Registration
Statement or any post-effective amendment thereto, prospectus or any
amendment or supplement thereto, or any document incorporated therein
by reference, untrue in any material respect or which requires the
making of any changes in the Registration Statement or any prospectus,
or amendment or supplement thereto, so that they will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of any prospectus, in the light of the
circumstances under which they were made) not misleading;
(vi) use its reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto;
(vii) use its reasonable efforts to register or
qualify the Registered Shares for offer and sale under such securities
or "blue sky" laws of such jurisdictions as Stockholder, any sales or
placement agent or underwriter of Registered Shares shall
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reasonably request in writing at least 10 days prior to the closing of
any particular sale pursuant to the Registration Statement; PROVIDED,
HOWEVER, that Issuer shall not be required for any such purpose to (A)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but
for the requirements of this Section 2.03(a)(vii), (B) consent to
general service of process in any such jurisdiction, provided that
Issuer shall execute consents to service of process in the forms
customarily requested in connection with the Registration Statement or
qualification of securities under state or securities or "blue sky"
laws, (C) subject itself to taxation in any such jurisdiction in which
it is not already so subject, or (D) make any changes to its
certificate of incorporation or bylaws or enter into any undertakings
with respect to its corporate affairs other than undertakings
customarily given in connection with qualifications of securities for
sale which do not restrict the conduct of its business;
(viii) use its reasonable efforts to cause the Shares
to be listed for trading on the New York Stock Exchange, Inc. or such
other securities exchange or interdealer quotation system on which
shares of Common Stock may be traded or listed and to cause the
Registered Shares to be registered with or approved by such other
governmental agencies or authorities within the United States (except
as may be required as a consequence of the nature of Stockholder's
business) as may be necessary by virtue of the markets on which the
Registered Shares are listed or quoted to enable Stockholder to
consummate the disposition of the Registered Shares;
(ix) cooperate with Stockholder and any sales or
placement agent or underwriter of Registered Shares to facilitate the
timely preparation and delivery of certificates representing Registered
Shares to be sold pursuant to the Registration Statement, which
certificates shall not bear any restrictive legends except as required
by law or as customarily borne by securities held by DTC or any similar
depository; and, in the case of an underwritten offering, enable such
Registered Shares to be in such denominations and registered in such
names as the managing underwriter or underwriters thereof may request
in writing at least two business days prior to any sale of the
Registered Shares;
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(x) enter into such agreements (including an
underwriting agreement or placement agency agreement) as are customary
in transactions of the kind contemplated by the intended method or
methods of distribution of the Registered Shares set forth in the
Registration Statement and reasonably acceptable to Issuer, and take
such other actions as are reasonably necessary in connection therewith
in order to expedite or facilitate the disposition of Registered
Shares; and (A) make such representations and warranties with respect
to the Registration Statement or any post-effective amendment or
supplement thereto, prospectus or any amendment or supplement thereto,
and documents incorporated by reference, if any, to Stockholder and the
sales or placement agent or underwriters of the Registered Shares in
form, substance and scope as are customary in connection with
transactions of such kind; (B) if requested by the managing
underwriters or lead placement agent of the Registered Shares, obtain
an opinion of outside counsel to Issuer in customary form and covering
matters of the type customarily covered by such an opinion, addressed
to such sales or placement agent or underwriters named in the
underwriting agreement and dated the date of the closing of the sale of
the Registered Shares relating thereto (PROVIDED that such opinion
shall be dated as of a single date and no updates thereof shall be
required); (C) if requested by the managing underwriters or lead
placement agent of the Registered Shares, (I) obtain a "comfort" letter
(or, if a "comfort" letter may not be delivered under applicable
accounting pronouncements or standards, a single "procedures" letter)
and a single update thereof from each of the independent certified
public accountants who have certified the most recent audited financial
statements that are incorporated by reference in the Registration
Statement, which letters shall be addressed to the sales or placement
agent or any underwriter of Registered Shares and shall be dated the
date of the prospectus used in connection with an offering of
Registered Shares and/or the date of the closing of the sale of
Registered Shares, such letter or letters to be in customary form and
covering such matters of the type customarily covered by "comfort"
letters of such type, and (II) use its reasonable efforts to have such
letter addressed to Stockholder; (D) deliver such documents and
certificates as may be reasonably requested by Stockholder and the
sales or placement agent or any underwriter of Registered Shares to
evidence compliance with any conditions contained in the underwriting
agreement or other agreement entered into by Issuer; and (E) undertake
such obligations
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relating to expense reimbursement, indemnification and contribution as
provided in Sections 2.03 and 2.04 of this Agreement; PROVIDED,
HOWEVER, that notwithstanding any other provision of this Agreement,
Issuer shall have no obligation to enter into more than two agreements
covering firm commitment underwritings of publicly offered Registered
Shares pursuant to this Agreement;
(xi) use reasonable efforts to make available to its
security holders an earnings statement, as soon as reasonably
practicable but in no event later than 90 days after the end of the
period of twelve months commencing on the first day of any fiscal
quarter next succeeding each sale by Stockholder of Registered Shares,
which earnings statement shall cover such twelve month period and shall
satisfy the provisions of Section 11(a) of the Securities Act and may
be prepared in accordance with Rule 158 under the Securities Act;
PROVIDED, that Issuer's obligations under this paragraph (xi) may be
satisfied by the timely filing of quarterly or annual reports under the
Exchange Act containing the information specified by Rule 158; and
(xii) use its reasonable efforts to assist
Stockholder in marketing the securities, including causing its
executive officers to participate in such "road show" presentations and
conference calls as may be customary in the marketing of equity
securities; PROVIDED, HOWEVER, that Stockholder shall cause the
managing underwriters or placement agents to give such executives
reasonable advance notice concerning the scheduling of any such
presentation or call and provided, further, that such presentations and
conference calls shall be scheduled with the understanding that the
regular responsibilities of such executive officers will take priority
over any such activities.
(b) In the event that Issuer would be required to provide the
notice contemplated by Section 2.03(a)(v)(E) to Stockholder or any sales or
placement agent or underwriter, Issuer shall, as promptly as practicable,
prepare and furnish to Stockholder and each sales or placement agent or
underwriter a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Registered Shares,
such prospectus shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of
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the circumstances under which they were made, not misleading. Upon receipt of
any notice from Issuer pursuant to Section 2.03(a)(v)(C), (D) or (E),
Stockholder shall, and shall use its reasonable efforts to cause any sales or
placement agent or underwriter to, forthwith discontinue disposition of
Registered Shares until such Person shall have received copies of such amended
or supplemented prospectus and, if so directed by Issuer, to destroy or to
deliver to Issuer all copies, other than permanent file copies, then in its
possession of the prospectus (prior to such amendment or supplement) covering
the Registered Shares as soon as practicable after Stockholder's receipt of such
notice; PROVIDED, HOWEVER, with respect to a notice pursuant to Section
2.03(a)(v)(D), Stockholder shall be obligated to comply with the covenant set
forth in this sentence only with respect to the jurisdiction to which such
notice relates.
(c) In the event that the Board of Directors of Issuer as
determined by majority vote thereof, provides notice to Stockholder (accompanied
by a resolution of the board setting forth the following) that it has determined
that in order for Stockholder to effect sales of Registered Shares, Issuer would
have to disclose material nonpublic information which, if disclosed at such
time, would be materially harmful to Issuer and its stockholders, then, for a
period not to exceed 60 days from the date of receipt of such notice,
Stockholder agrees not to effect, and shall cause any sales or placement agent
or underwriter not to effect, any such sales; PROVIDED that the Issuer may not
exercise this deferral right more than once in any consecutive twelve-month
period.
(d) Stockholder shall furnish to Issuer in writing such
information regarding such Stockholder and its intended method of distribution
of the Registered Shares as Issuer may from time to time reasonably request in
writing, but only to the extent that such information is required in order for
Issuer to comply with its obligations under all applicable securities and other
laws and to ensure that the prospectus relating to the Registered Shares
conforms to the applicable requirements of the Securities Act and the rules and
regulations thereunder. Stockholder shall notify Issuer as promptly as
practicable of any inaccuracy or change in information previously furnished in
writing by Stockholder to Issuer or of the occurrence of any event, in either
case as a result of which any prospectus relating to the Registered Shares
contains or would contain an untrue statement of a material fact regarding
Stockholder or its intended method of distribution of the Registered Shares or
omits to state any material fact regarding Stockholder or
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its intended method of distribution of the Registered Shares required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and promptly furnish
to Issuer any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to Stockholder or the distribution of the Registered
Shares, an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(e) Stockholder and all of its officers and directors will
comply with the provisions of Regulation M promulgated by the Commission, as
applicable to them in connection with sales of Registered Shares.
2.04 REGISTRATION EXPENSES. Issuer agrees to bear and to pay,
or cause to be paid, promptly upon request being made therefor, all expenses
incident to Issuer's performance of or compliance with this Agreement,
including, without limitation: (a) all Commission and any National Association
of Securities Dealers registration and filing fees and expenses, (b) all fees
and expenses in connection with the qualification of the Registered Shares for
offering and sale under state securities or "blue sky" laws referred to in
Section 2.03(a)(vii) hereof, including reasonable fees and disbursements of
counsel for any sales or placement agent or underwriter in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of any Registration Statement, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Registered Shares
and all other documents relating hereto, (d) internal expenses of Issuer
(including, without limitation, all salaries and expenses of Issuer's officers
and employees performing legal or accounting duties), (e) fees, disbursements
and expenses of Issuer's counsel and its other advisors and experts and
independent certified public accountants of Issuer (including the expenses of
any opinions or "comfort" letters required by or incident to such performance
and compliance), and (f) the fees and expenses incurred in connection with the
listing of the Registered Shares on any other stock exchange or dealer quotation
system on which the Common Stock shall at such time be listed or traded
(collectively, the "Expenses"). To the extent that any Expenses are incurred,
assumed or paid by Stockholder or any sales or placement agent or underwriter of
Registered Shares, Issuer shall reimburse
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such Person for the full amount of the Expenses so incurred, assumed or paid
promptly after receipt of a written request therefor, which shall specify in
reasonable detail the nature and amount of the Expenses. Notwithstanding the
foregoing, Stockholder shall pay or cause to be paid, as appropriate, (a) all
agency fees and commissions and underwriting discounts and commissions
attributable to the sale of the Registered Shares by or on behalf of
Stockholder, (b) all expenses and disbursements arising out of or related to any
marketing efforts undertaken pursuant to Section 2.03(a)(xii) of this Agreement,
(c) the fees, disbursements and expenses of its counsel in connection with the
offering and sale of the Registered Shares and (d) the disbursements and
expenses of any placement agents or underwriters in connection with the offering
and sale of the Registered Shares and (e) all transfer taxes applicable to the
sale of the Registered Shares.
2.05 INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY ISSUER. Issuer shall, and it hereby
agrees to, (i) indemnify, defend and hold harmless Stockholder, and each Person
who participates as a sales or placement agent or underwriter in any offering or
sale of the Registered Shares, against any losses, claims, damages or
liabilities to which Stockholder or such agent or underwriter may become
subject, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (A) an untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or any document incorporated by
reference therein, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) any violation by
Issuer of any federal, state or other law applicable to Issuer in connection
with such registration, and (ii) reimburse Stockholder and any such agent or
underwriter for any legal or other out-of-pocket expenses reasonably incurred by
them in connection with investigating or defending any such action, proceeding
or claim; PROVIDED, HOWEVER, that Issuer shall not be liable to any such Person
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement, or
preliminary or final prospectus, or amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to Issuer by any such
Person expressly
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for use therein, or by such Person's failure to furnish Issuer, upon written
request, with the information with respect to such Person, or Stockholder's
intended method of distribution, that is the subject of the untrue statement or
omission.
(b) INDEMNIFICATION BY STOCKHOLDER. Stockholder agrees to (i)
indemnify, defend and hold harmless Issuer, and each Person who participates as
a sales or placement agent or underwriter in any offering or sale of the
Registered Shares, against any losses, claims, damages or liabilities to which
Issuer may become subject, insofar as such losses, claims, damages or
liabilities (including any amounts paid in settlement as provided herein), or
actions or proceedings in respect thereof, arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to Issuer by Stockholder expressly
for use therein, and (ii) reimburse Issuer and any such agent or underwriter for
any legal or other out-of-pocket expenses reasonably incurred by them in
connection with investigating or defending any such action, proceeding or claim.
(c) NOTICE OF CLAIMS, ETC. Promptly after receipt by any party
which is entitled to assert a right to indemnification under Section 2.05(a) or
(b) (each, an "Indemnified Party"), of written notice of the commencement of any
action or proceeding as to which such Indemnified Party is entitled to
indemnification under Section 2.05(a) or (b), such Indemnified Party shall,
without regard to whether a claim in respect thereof is to be made against the
party against whom such right to indemnification may be asserted (an
"Indemnifying Party"), notify such Indemnifying Party in writing of the
commencement of such action or proceeding; but the omission so to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which it may have to the Indemnified Party in respect of such action or
proceeding on account of the indemnification provisions of or contemplated by
Section 2.05(a) or (b) unless the Indemnifying Party was materially prejudiced
by such failure of the Indemnified Party to give such notice, and in no event
shall such omission relieve the Indemnifying Party from any other
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liability it may have to such Indemnified Party. In case any such action or
proceeding shall be brought against any Indemnified Party and it shall notify an
Indemnifying Party of the commencement thereof, such Indemnifying Party shall be
entitled to participate therein and, to the extent that it shall determine,
jointly with any other Indemnifying Party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnified Party,
and, after notice from the Indemnifying Party to the Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party shall not be
liable to the Indemnified Party for any legal or any other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation (unless the Indemnified Party reasonably
objects to such assumption on the grounds that there may be defenses available
to it which are in conflict with defenses available to the Indemnifying Party,
in which event the Indemnified Party shall have the right to control its defense
and shall be reimbursed by the Indemnifying Party for the expenses incurred in
connection with retaining separate counsel, which shall be limited to a single
law firm in each jurisdiction). If the Indemnifying Party is not entitled to, or
elects not to, assume the defense of a claim, it will not be obligated to pay
the fees and expenses of more than one counsel for all Indemnified Parties with
respect to such claim. The Indemnifying Party will not be subject to any
liability for any settlement made without its consent, which consent shall not
be unreasonably withheld or delayed. No Indemnifying Party will consent to entry
of any judgment or enter into any settlement agreement which does not include,
as an unconditional term thereof, the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect of such claim
or litigation.
(d) CONTRIBUTION. If, for any reason (other than a reason
specified herein), the indemnification provisions contemplated by Section
2.05(a) or (b) hereof are unavailable to hold harmless an Indemnified Party in
respect of any losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to therein, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of, and benefits derived by, the Indemnifying Party and the Indemnified
Party, as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and Indemnified Party shall be determined by
reference
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to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such Indemnifying Party or by such Indemnified Party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 2.05(d) were determined (i) by pro rata allocation (even if Stockholder
or any agents for, or underwriters of, the Registered Shares, or all of them,
were treated as one entity for such purpose); or (ii) by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 2.05(d). The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above shall be deemed to include
(subject to the limitations set forth in Section 2.05(c) hereof) any legal or
other fees or expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action, proceeding or claim.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) BENEFICIARIES OF INDEMNIFICATION. The obligations of
Issuer and Stockholder under this Section 2.05 shall be in addition to any
liability that it may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of any Indemnified Party and
each agent and underwriter of Securities and each Person, if any, who controls
any Indemnified Party or any such agent or underwriter within the meaning of the
Securities Act; and the obligations of Stockholder contemplated by this Section
2.05 shall be in addition to any liability that Stockholder may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of Issuer (including any Person who, with his consent, is named in any
Registration Statement as about to become a director of Issuer) and to each
Person, if any, who controls Issuer within the meaning of the Securities Act.
2.06 UNDERWRITERS. If any of the Shares are to be sold
pursuant to an underwritten offering, the investment banker or bankers and the
managing underwriter or underwriters thereof shall be selected by Stockholder
and shall be reasonably acceptable to Issuer (PROVIDED, HOWEVER, that Issuer
agrees that Xxxxxx Xxxxxxx Xxxx Xxxxxx shall be reasonably acceptable to
Issuer).
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2.07 APPROVAL FOR LISTING. Promptly after the date hereof and
after any subsequent increase in the number of Shares, Issuer shall take all
necessary action to cause all of the Shares to be approved for listing, subject
to official notice of issuance, on the primary national security exchange or
dealer quotation system on which the Common Stock may then be listed or
authorized for quotation.
2.08 SUBSEQUENT REGISTRATION RIGHTS. Nothing in this Agreement
shall prevent the Issuer from granting any registration rights to any other
person in connection with any securities of the Issuer.
ARTICLE III
MISCELLANEOUS
-------------
3.01 TERM OF AGREEMENT; TERMINATION; SURVIVAL. The term of
this Agreement shall commence on the date hereof and such term and this
Agreement shall, subject to Section 3.05, terminate upon the expiration of the
Effective Period.
3.02 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of
the parties hereto recognizes and acknowledges that a breach by a party or by
any assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the parties
hereto agrees that in the event of any such breach, the aggrieved party shall be
entitled to the remedy of specific performance of such covenants or commitments
and preliminary and permanent injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity, and the
parties hereto further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
3.03 NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by registered or certified mail, return receipt requested,
or if sent by telecopier, upon receipt of oral confirmation that such
transmission has been received, to the Person at the address set forth below, or
such other address as may be
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designated in writing hereafter, in the same manner, by such Person or by
Stockholder:
(a) if to Issuer, addressed as follows:
Xxxxxx Worldwide, Inc.
0000 Xxxxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
(b) if to Stockholder, addressed as follows:
Xxxxxx Corporation
0000 Xxxx XXXX Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Telecopier: (000) 000-0000
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 3.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
3.04 PARTIES IN INTEREST. This Agreement shall inure to the
benefit of and be binding upon the parties named herein and their respective
successors and assigns.
3.05 SURVIVAL. The several indemnities, agreements, and each
other provision set forth in this Agreement or made pursuant hereto shall remain
in full force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any party, any director or officer of
such party, or any controlling Person of any of the foregoing, and shall survive
the transfer of any Shares by Stockholder. The expense payment provisions of
Section 2.04 and the indemnification and contribution provisions set forth in
Section 2.05 hereof shall survive any termination of this Agreement.
3.06 ASSIGNMENT. No party to this Agreement may assign any of
its rights or obligations under this Agreement without the prior written consent
of the other parties hereto, and any such purported assignment shall be null and
void, except that the Stockholder may assign and delegate its rights and
obligations under this Agreement to any of its majority-owned subsidiaries,
without the consent of Issuer; PROVIDED that such majority-owned subsidiary
executes and delivers to Issuer an agreement to the effect
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that such majority-owned subsidiary agrees to be bound by this Agreement.
3.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
3.08 CONSENT TO JURISDICTION. Each of the parties irrevocably
submits to the exclusive jurisdiction of (a) the state courts of the State of
Florida, located in Orlando, and (b) the United States District Court for the
Middle District of Florida, for the purposes of any suite, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Middle District of
Florida or if such suit, action or other proceeding may not be brought in such
court for jurisdictional reasons, in the state courts of the State of Florida,
located in Orlando. Each of the parties further agrees that service of any
process, summons, notice or document by U.S. registered mail to such party=s
respective address set forth above shall be effective service of process for any
action, suit or proceeding in Florida with respect to any matters to which it
has submitted to jurisdiction in this Section 3.08. Each of the parties
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i)the state courts of the State of Florida, located in
Orlando, or (ii) the United States District Court for the Middle District of
Florida, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any court has been brought in an inconvenient forum.
3.09 SEVERABILITY. It is the intention of the parties that
the provisions of this Agreement be deemed severable and the invalidity or
unenforceability of any provision not affect the validity or enforceability of
the other provisions hereof. It is the intention of the parties that if any
provision of this Agreement, or the application thereof to any Person or entity
or any circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons, entities or circumstances
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shall not be affected by such invalidity or unenforceability.
3.10 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains
the entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to its subject matter. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a written
instrument duly executed by Issuer and Stockholder, which shall be binding on
Stockholder and Issuer.
3.11 FURTHER ASSURANCES. Each party shall provide such
further documents or instruments reasonably requested by any other party as may
be necessary or desirable to effect the purpose and intention of this Agreement
and carry out its provisions, whether before or after its termination.
3.12 COUNTERPARTS. This Agreement and any amendments hereto
may be executed in two or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, this Agreement has been signed on behalf
of each of the parties hereto as of the date first written above.
XXXXXX WORLDWIDE, INC.
By:_______________________
Name:
Title:
XXXXXX CORPORATION
By:_______________________
Name:
Title:
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