REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of March 10, 2006, by and among Services Acquisition Corp.
International, a Delaware corporation (the "Company"), and the investors
signatory hereto (each a "Purchaser" and collectively, the "Purchasers").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of the date hereof among the Company and the Purchasers (the "Purchase
Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
"Business Day" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of New York are authorized or required by law or other governmental action
to close.
"Effectiveness Date" means, with respect to the Registration Statement
required to be filed hereunder, the earlier of (a) the 60th calendar day
following the Filing Date (90th calendar day in the event of a full review by
the Commission) and (b) the fifth (5th) Business Day following the date on which
the Company is notified by the Commission that the Registration Statement will
not be reviewed or is no longer subject to further review and comments.
"Effectiveness Period" shall have the meaning set forth in Section
2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Date" means, with respect to the Registration Statement
required to be filed hereunder, the later of (i) the 30th calendar day following
the Closing Date or (ii) July 7, 2006.
"Holder" or "Holders" means the holder or holders, as the case may be,
from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
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"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Registrable Securities" means the shares of Common Stock issued in
connection with the transactions contemplated by the Purchase Agreement,
together with any Securities issued or issuable upon any stock split, dividend
or other distribution, recapitalization or similar event with respect to the
foregoing.
"Registration Statement" means the registration statement required to
be filed hereunder, including the Prospectus, amendments and supplements to the
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in the Registration Statement.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Trading Market" means whichever of the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market on which the Common Stock
is listed or quoted for trading on the date in question.
2. Registration.
(a) On or prior to the Filing Date, the Company shall prepare
and file with the Commission the Registration Statement covering the
resale of all of the Registrable Securities sold in the Closing for
an offering to be made on a continuous basis pursuant to Rule 415,
or if Rule 415 is not available for offers or sales of the
Registrable Securities, for such other means of distribution of
Registrable Securities as the Holders may specify. The Registration
Statement required hereunder shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Registrable
Securities on Form S-3, in which case the Registration shall be on
another appropriate form in accordance herewith). The Registration
Statement required hereunder shall contain (except if otherwise
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directed by the Holders) the "Plan of Distribution" attached hereto
as Annex A. The Company shall use its commercially reasonable
efforts to cause the Registration Statement to be declared effective
under the Securities Act as promptly as possible after the filing
thereof, and shall use its commercially reasonable efforts to keep
such Registration Statement continuously effective under the
Securities Act (including the filing of any necessary amendments,
post-effective amendments and supplements) until the date which is
two years after the Closing Date or such later date when all
Registrable Securities covered by the Registration Statement (A)
have been sold pursuant to the Registration Statement or an
exemption from the registration requirements of the Securities Act
or (B) may be sold without volume restrictions pursuant to Rule
144(k) promulgated under the Securities Act, as determined by the
counsel to the Company pursuant to a written opinion letter to such
effect, addressed and reasonably acceptable to the Company's
transfer agent and the affected Holders (the "Effectiveness
Period"). The Company shall telephonically request effectiveness of
the Registration Statement as of 5:00 pm Eastern Time on a Trading
Day. The Company shall immediately notify the Holders via facsimile
of the effectiveness of a Registration Statement on the same Trading
Day that the Company telephonically confirms effectiveness with the
Commission, which shall be the date requested for effectiveness of a
Registration Statement. The Company shall, by 9:30 am Eastern Time
on the Trading Day after the Effective Date (as defined in the
Purchase Agreement), file a Rule 424(b) prospectus with the
Commission.
(b) If: (i) the Registration Statement is not filed on or prior
to the Filing Date (if the Company files the Registration Statement
without affording the Holders the opportunity to review and comment
on the same as required by Section 3(a), the Company shall not be
deemed to have satisfied this clause (i)); or (ii) the Registration
Statement is not declared effective by the Commission on or before
the Effectiveness Date or (iii) after the Effectiveness Date, a
Registration Statement ceases for any reason to remain continuously
effective as to all Registrable Securities for which it is required
to be effective, or the Holders are not permitted to utilize the
Prospectus therein to resell such Registrable Securities for 30
consecutive calendar days or for more than an aggregate of 90
calendar days during any 12-month period (which need not be
consecutive Trading Days) (any such failure or breach being referred
to as an "Event," and for purposes of clause (i) or (ii) the date on
which such breach being occurs, for purposes of clause (iii) the
date on which such 30 or 90 calendar day period, as applicable, is
exceeded, being referred to as an "Event Date"), then in addition to
any other rights the Holders may have hereunder or under applicable
law: (x) on each such Event Date and on each monthly anniversary of
each such Event Date (if the applicable Event shall not have been
cured by such date) until the applicable Event is cured, the Company
shall pay to each Holder an amount in cash, as liquidated damages
and not as a penalty, equal to 0.5% of the aggregate purchase price
paid by such Holder pursuant to the Purchase Agreement for any
Registrable Securities then held by such Holder. Notwithstanding
anything to the contrary contained herein, no Holder shall be
entitled to be included in the Registration Statement or receive
liquidated damages unless such Holder has
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provided such information to the Company as the Company shall have
reasonably requested in connection with such Registration Statement.
3. Registration Procedures
In connection with the Company's registration obligations hereunder,
the Company shall:
(a) Not less than three (3) Business Days prior to the filing of
the Registration Statement or any related Prospectus or any
amendment or supplement thereto, (i) furnish to the Holders copies
of all such documents proposed to be filed (including documents
incorporated or deemed incorporated by reference to the extent
requested by such Person) which documents will be subject to the
review of such Holders, and (ii) cause its officers and directors,
counsel and independent certified public accountants to respond to
such inquiries as shall be necessary, in the reasonable opinion of
respective legal counsel to conduct a reasonable investigation
within the meaning of the Securities Act. The Company shall not file
the Registration Statement or any such Prospectus or any amendments
or supplements thereto to which the Holders of a majority of the
Registrable Securities shall reasonably object in good faith.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement
and the Prospectus used in connection therewith as may be necessary
to keep the Registration Statement continuously effective as to the
Registrable Securities for the Effectiveness Period; (ii) cause the
related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably
possible to any comments received from the Commission with respect
to the Registration Statement or any amendment thereto; and (iv)
comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition
of all Registrable Securities covered by the Registration Statement
in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold as
promptly as reasonably possible (and, in the case of (i)(A) below,
not less than two (2) Business Days prior to such filing) and (if
requested by any such Person) confirm such notice in writing
promptly following the day (i) (A) when a Prospectus or any
Prospectus supplement or post-effective amendment to the
Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review" of
the Registration Statement and whenever the Commission comments in
writing on the Registration Statement (the Company shall upon
request provide true and complete copies thereof and all written
responses thereto as promptly as reasonably possible to each of the
Holders who so requests provided such requesting Holders agree to
keep such information confidential until it is publicly disclosed
and to waive Section 4.5 of
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the Purchase Agreement with respect thereto); and (C) with respect
to the Registration Statement or any post-effective amendment, when
the same has become effective; (ii) of any request by the Commission
or any other Federal or state governmental authority during the
period of effectiveness of the Registration Statement for amendments
or supplements to the Registration Statement or Prospectus or for
additional information; (iii) of the issuance by the Commission or
any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement covering
any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose; (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of
any Proceeding for such purpose, and (v) of the occurrence of any
event or passage of time that makes the financial statements
included in the Registration Statement ineligible for inclusion
therein or any statement made in the Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires
any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the
Prospectus, as the case may be, it 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 light of the circumstances under which they were made,
not misleading (provided that such Holder of Registrable Securities
agrees to keep such information confidential until it is publicly
disclosed and to waive Section 4.5 of the Purchase Agreement with
respect thereto).
(d) Use its commercially reasonable efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of the Registration Statement, or (ii)
any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment.
(e) To the extent requested by such Holders, furnish to each
Holder, without charge, at least one conformed copy of the
Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits
(including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as many
copies of the Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons
may reasonably request in connection with resales by the Holder of
Registrable Securities. The Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of
the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment
or supplement thereto, except after the giving of any notice
pursuant to Section 3(c).
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(g) Use its commercially reasonable efforts to register or
qualify or cooperate with the selling Holders in connection with the
registration or qualification (or exemption from the Registration or
qualification) of such Registrable Securities for the resale by the
Holder under the securities or Blue Sky laws of such jurisdictions
within the United States as any Holder reasonably requests in
writing, to keep each of the registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and
to do any and all other acts or things reasonably necessary to
enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, that the
Company shall not be required to qualify generally to do business in
any jurisdiction where it is not then so qualified, subject the
Company to any material tax in any such jurisdiction where it is not
then so subject or file a general consent to service of process in
any such jurisdiction.
(h) If requested by the Holders, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be delivered to a transferee
pursuant to the Registration Statement, which certificates shall be
free, to the extent permitted by the Purchase Agreement, of all
restrictive legends, and to enable such Registrable Securities to be
in such denominations and registered in such names as any such
Holders may request.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably possible, prepare a supplement or
amendment, including a post-effective amendment, to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered,
neither the Registration Statement nor such Prospectus will 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 light of the circumstances under which they
were made, not misleading.
(j) Use commercially reasonable efforts to make available to its
security holders no later than the Availability Date (as defined
below), an earning statement covering a period of at least twelve
(12) months, beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act, including Rule 158 promulgated
thereunder. For the purpose of this subsection, "Availability Date"
shall mean the 45th day following the end of the fourth fiscal
quarter after the fiscal quarter that includes the effective date of
the Registration Statement, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(k) Comply with all applicable rules and regulations of the
Commission and use its commercially reasonable efforts to cause all
Registrable Securities to be listed for trading on a Trading Market.
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(l) If requested by Holders, in the event of an underwritten
offering of the Registrable Securities by the Holders, furnish on
the date that Registrable Securities are delivered to the
underwriters for sale pursuant to any such registration (i) an
opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters to such
effects as reasonably may be requested by counsel for the
underwriters and executed counterparts of such opinion addressed to
the sellers of Registrable Securities to the same effect as
requested by counsel for the underwriters and (ii) a letter dated
such date from the independent public accountants retained by the
Company, addressed to the underwriters stating that they are
independent public accountants within the meaning of the Securities
Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and such letter shall
additionally cover such other financial matters (including
information as to the period ending no more than five (5) business
days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request.
The Company may require each selling Holder to furnish to the Company a
certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the person thereof that
has voting and dispositive control over the Shares.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company shall be borne
by the Company whether or not any Registrable Securities are sold pursuant to
the Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the Trading Market on which the Common Stock is then
listed for trading, and (B) for compliance with applicable state securities or
Blue Sky laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities and of printing prospectuses
if the printing of prospectuses is reasonably requested by the Holders of a
majority of the Registrable Securities included in the Registration Statement),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company, (v) Securities Act liability insurance, if the Company
so desires such insurance, and (vi) fees and expenses of all other Persons
retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of
the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange as required hereunder. In no event shall the Company be
responsible for any broker or similar commissions or any legal fees or other
costs of the Holders.
5. Indemnification
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(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and
hold harmless each Holder, the officers, directors, members,
partners, agents, brokers, investment advisors and employees (and
any other Persons with a functionally equivalent role of a Person
holding such titles, notwithstanding a lack of such title or any
other title) of each of them, each Person who controls any such
Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors,
members, partners, agents and employees (and any other Persons with
a functionally equivalent role of a Person holding such titles,
notwithstanding a lack of such title or any other title) of each
such controlling Person, to the fullest extent permitted by
applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation,
reasonable attorneys' fees) and expenses (collectively, "Losses"),
as incurred, to the extent arising out of or relating to any untrue
or alleged untrue statement of a material fact contained in the
Registration Statement, any Prospectus or any form of prospectus or
in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or
necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of
the circumstances under which they were made) not misleading, or any
violation or alleged violation by the Company of the Securities Act,
Exchange Act or any state securities law, or any rule or regulation
thereunder, in connection with the performance of its obligations
under this Agreement, except to the extent, but only to the extent,
that (1) such untrue statements or omissions are based solely upon
information regarding such Holder furnished in writing to the
Company by such Holder expressly for use therein, or to the extent
that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities as set
forth in Annex A hereto or any changes to Annex A hereto that are
expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto or (2) in the
case of an occurrence of an event of the type specified in Section
3(c)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(c).
The Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and
not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as
incurred, to the extent arising out of or based upon: (x) such
Holder's failure to comply with the
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prospectus delivery requirements of the Securities Act or (y) any
untrue or alleged untrue statement of a material fact contained in
the Registration Statement, any Prospectus, or any form of
prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not
misleading (i) to the extent, but only to the extent, that such
untrue statement or omission is contained in any information so
furnished in writing by such Holder to the Company specifically for
inclusion in the Registration Statement or such Prospectus or (ii)
to the extent that (1) such untrue statements or omissions are based
solely upon information regarding such Holder furnished in writing
to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder's
proposed method of distribution of Registrable Securities as set
forth in Annex A hereto or any changes to Annex A hereto that are
expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of
Prospectus or in any amendment or supplement thereto, or (2) in the
case of an occurrence of an event of the type specified in Section
3(c)(ii)-(v), the use by such Holder of an outdated or defective
Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the
receipt by such Holder of the Advice contemplated in Section 6(b).
In no event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities
covered by the Registration Statement giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified Party
shall promptly notify the Person from whom indemnity is sought (the
"Indemnifying Party") in writing, and the Indemnifying Party shall
have the right to assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in
connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations or liabilities pursuant to
this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such
failure shall have prejudiced the Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party or
Parties unless: (1) the Indemnifying Party has agreed in writing to pay such
fees and expenses; (2) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named
parties to any such Proceeding (including any impleaded parties) include both
such Indemnified Party and the Indemnifying Party, and such
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Indemnified Party shall have been advised by counsel that a conflict
of interest is reasonably likely to exist if the same counsel were
to represent such Indemnified Party and the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not
have the right to assume the defense thereof and the reasonable fees
and expenses of one separate counsel shall be at the expense of the
Indemnifying Party). The Indemnifying Party shall not be liable for
any settlement of any such Proceeding effected without its written
consent. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a
party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the
subject matter of such Proceeding.
All reasonable fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten Business Days of written notice thereof to the Indemnifying
Party; provided, that the Indemnified Party shall promptly reimburse the
Indemnifying Party for that portion of such fees and expenses applicable to such
actions for which such Indemnified Party is not entitled to indemnification
hereunder, determined based upon the relative faults of the parties.
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is unavailable to an Indemnified Party (by reason of
public policy or otherwise), then each 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, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party
shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed
to include, subject to the limitations set forth in Section 5(c),
any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the
extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was
available to such party in accordance with its terms.
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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 that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no Holder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
proceeds actually received by such Holder from the sale of the Registrable
Securities subject to the Proceeding exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission, except in the case of fraud by
such Holder. The indemnity and contribution agreements contained in this Section
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6. Miscellaneous
(a) Compliance. Each Holder covenants and agrees that it will
comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement.
(b) Discontinued Disposition. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of any event of the kind
described in Section 3(c), such Holder will forthwith discontinue
disposition of such Registrable Securities under the Registration
Statement until such Holder's receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement or
until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. In the event of a
discontinued disposition under this Section 6(b), the Company will
use its commercially reasonable efforts to ensure that the use of
the Prospectus may be resumed as promptly as is practicable and to
provide copies of the supplemented Prospectus and/or amended
Registration Statement or the Advice as soon as possible in order to
enable each Holder to resume dispositions of the Registrable
Securities. The Company may provide appropriate stop orders to
enforce the provisions of this paragraph. The Company agrees and
acknowledges that any periods during which the Holder is required to
discontinue the disposition of the Registrable Securities hereunder
shall be subject to the provisions of Section 2(b).
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and each Holder of the then
outstanding Registrable Securities.
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(d) Lock-up. During the 12 month period following the Closing,
if the Company delivers to the Purchasers a certificate signed by an
officer of the Company stating that the managing underwriter of a
registered public offering of equity securities of the Company, all
of which relates to securities to be sold on a primary basis by the
Company (the "Offering"), has requested that the Purchasers refrain
from selling or otherwise transferring or disposing of any
Registrable Securities then held by the Purchasers for a specified
period of time during the Offering, the Purchasers shall refrain
from selling or otherwise transferring or disposing of any
Registrable Securities then held by the Purchasers beginning on the
later of (i) the 10th Business Day after receipt of such certificate
from the Company and (ii) the commencement of the Offering (which
shall be the effective date of the registration statement for such
Offering) and ending following a specified period of time that is
customary under the circumstances (not to exceed ninety (90) days).
(e) Suspension of Trading. At any time after the Registrable
Securities are covered by an effective Registration Statement, the
Company may deliver to the Holders of such Registrable Securities a
certificate (the "Suspension Certificate") approved by the Chief
Executive Officer of the Company and signed by an officer of the
Company stating that the effectiveness of and sales of Registrable
Securities under the Registration Statement would:
(i) materially interfere with any transaction that would require
the Company to prepare financial statements under the Securities Act
that the Company would otherwise not be required to prepare in order
to comply with its obligations under the Exchange Act, or
(ii) require public disclosure of any transaction of the type
discussed in Section 6(e)(i) prior to the time such disclosure might
otherwise be required.
Beginning ten (10) Business Days after the receipt of a
Suspension Certificate by Holders of Registrable Securities, the
Company may, in its discretion, require such Holders of Registrable
Securities to refrain from selling or otherwise transferring or
disposing of any Registrable Securities or other Company securities
then held by such Holders for a specified period of time that is
customary under the circumstances (not to exceed thirty (30) days).
Notwithstanding the foregoing sentence, the Company shall be
permitted to cause Holders of Registrable Securities to so refrain
from selling or otherwise transferring or disposing of any
Registrable Securities or other securities of the Company on only
one occasion during each twelve (12) consecutive month period that
the Registration Statement remains effective. The Company may impose
stop transfer instructions to enforce any required agreement of the
Holders under this Section 6(e).
(f) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be
in writing and shall be deemed given and effective on the earliest
of (i) the date of transmission,
12
if such notice or communication is delivered via facsimile at the
facsimile number provided for below prior to 5:00 p.m. (New York
City time) on a Business Day, (ii) the Business Day after the date
of transmission, if such notice or communication is delivered via
facsimile at the facsimile number provided for below later than 5:00
p.m. (New York City time) on any date and earlier than 11:59 p.m.
(New York City time) on such date, (iii) the Business Day following
the date of mailing, if sent by nationally recognized overnight
courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. The address and delivery
requirements for such notices and communications shall be as set
forth in the Purchase Agreement.
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns
of each of the parties and shall inure to the benefit of each
Holder. The Company may not assign its rights or obligations
hereunder without the prior written consent of all of the Holders of
the then-outstanding Registrable Securities, provided a sale of the
Company shall not be deemed an assignment. Each Holder may assign
their respective rights hereunder in the manner and to the Persons
as permitted under the Purchase Agreement.
(h) Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to
be an original and, all of which taken together shall constitute one
and the same Agreement. In the event that any signature is delivered
by facsimile transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if
such facsimile signature were the original thereof.
(i) Governing Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by and construed and enforced in accordance with the
internal laws of the State of New York, without regard to the
principles of conflicts of law thereof.
(j) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties hereto
shall use their commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any
of such that may be hereafter declared invalid, illegal, void or
unenforceable.
13
(l) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the
meaning hereof.
(m) Independent Nature of Purchasers' Obligations and Rights.
The obligations of each Purchaser hereunder are several and not
joint with the obligations of any other Purchaser hereunder, and no
Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser hereunder. Nothing contained
herein or in any other agreement or document delivered at any
closing, and no action taken by any Purchaser pursuant hereto or
thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of
entity, or create a presumption that the Purchasers are in any way
acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Purchaser shall be
entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement, and it shall
not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose.
*************************
14
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SERVICES ACQUISITION CORP.
INTERNATIONAL
By:
------------------------------
Xxxxxx X. Xxxxxxx, Chief Executive
Officer
[PURCHASERS' SIGNATURE PAGES TO FOLLOW]
[PURCHASERS' SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
PURCHASER:
--------------------------------
By:
---------------------------------------
Name:
Title:
Fax Number:
[ADDITIONAL PURCHASER SIGNATURES FOLLOW]
ANNEX A
Plan of Distribution
--------------------
The shares covered by this prospectus may be offered and sold from time
to time by the selling stockholders. The term "selling stockholder" includes
pledgees, donees, transferees or other successors in interest selling shares
received after the date of this prospectus from each selling stockholder as a
pledge, gift, partnership distribution or other non-sale related transfer. The
number of shares beneficially owned by a selling stockholder will decrease as
and when it effects any such transfers. The plan of distribution for the selling
stockholders' shares sold hereunder will otherwise remain unchanged, except that
the transferees, pledgees, donees or other successors will be selling
stockholders hereunder. To the extent required, we may amend and supplement this
prospectus from time to time to describe a specific plan of distribution.
The selling stockholders will act independently of us in making
decisions with respect to the timing, manner and size of each sale. The selling
stockholders may make these sales at prices and under terms then prevailing or
at prices related to the then current market price. The selling stockholders may
also make sales in negotiated transactions. The selling stockholders may offer
their shares from time to time pursuant to one or more of the following methods:
o ordinary brokerage transactions and transactions in which
the broker-dealer solicits purchasers;
o one or more block trades in which the broker-dealer will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate
the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of
the applicable exchange;
o public or privately negotiated transactions;
o on the American Stock Exchange or Nasdaq National Market
(or through the facilities of any national securities
exchange or U.S. inter-dealer quotation system of a
registered national securities association, on which the
shares are then listed, admitted to unlisted trading
privileges or included for quotation);
o through underwriters, brokers or dealers (who may act as
agents or principals) or directly to one or more
purchasers;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
A-1
In connection with distributions of the shares or otherwise, the selling
stockholders may:
o enter into hedging transactions with broker-dealers or
other financial institutions, which may in turn engage in
short sales of the shares in the course of hedging the
positions they assume;
o sell the shares short and redeliver the shares to close out
such short positions;
o enter into option or other transactions with broker-dealers
or other financial institutions which require the delivery
to them of shares offered by this prospectus, which they
may in turn resell; and
o pledge shares to a broker-dealer or other financial
institution, which, upon a default, they may in turn
resell.
In addition to the foregoing methods, the selling stockholders may
offer their shares from time to time in transactions involving principals or
brokers not otherwise contemplated above, in a combination of such methods or
described above or any other lawful methods. The selling stockholders may also
transfer, donate or assign their shares to lenders, family members and others
and each of such persons will be deemed to be a selling stockholder for purposes
of this prospectus. The selling stockholders or their successors in interest may
from time to time pledge or grant a security interest in some or all of the
shares of common stock, and if the selling stockholders default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from to time under this prospectus;
provided however in the event of a pledge or then default on a secured
obligation by the selling stockholder, in order for the shares to be sold under
this registration statement, unless permitted by law, we must distribute a
prospectus supplement and/or amendment to this registration statement amending
the list of selling stockholders to include the pledgee, secured party or other
successors in interest of the selling stockholder under this prospectus.
The selling stockholders may also sell their shares pursuant to Rule
144 under the Securities Act, which permits limited resale of shares purchased
in a private placement subject to the satisfaction of certain conditions,
including, among other things, the availability of certain current public
information concerning the issuer, the resale occurring following the required
holding period under Rule 144 and the number of shares being sold during any
three-month period not exceeding certain limitations.
Sales through brokers may be made by any method of trading authorized
by any stock exchange or market on which the shares may be listed or quoted,
including block trading in negotiated transactions. Without limiting the
foregoing, such brokers may act as dealers by purchasing any or all of the
shares covered by this prospectus, either as agents for others or as principals
for their own accounts, and reselling such shares pursuant to this prospectus.
The selling stockholders may effect such transactions directly, or indirectly
through underwriters, broker-dealers or agents acting on their behalf. In
effecting sales, broker-dealers or agents engaged by the selling stockholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling
A-2
stockholders, in amounts to be negotiated immediately prior to the sale (which
compensation as to a particular broker-dealer might be in excess of customary
commissions for routine market transactions).
In offering the shares covered by this prospectus, the selling
stockholders, and any broker-dealers and any other participating broker-dealers
who execute sales for the selling stockholders, may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with these
sales. Any profits realized by the selling stockholders and the compensation of
such broker-dealers may be deemed to be underwriting discounts and commissions.
The Company is required to pay all fees and expenses incident to the
registration of the shares.
The Company has agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under the
Securities Act.
