EXHIBIT B
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT is made and entered into this
16th day of January, 1996, by and among THE XXXXX CORPORATION, a
Delaware corporation ("Xxxxx"), and SATTEL TECHNOLOGIES, INC. a
California corporation ("Sattel").
BACKGROUND
Xxxxx owns five hundred (500) and Sattel owns five
hundred (500) shares of common stock, without par value of Sattel
Communications Corp. (the "Company"). Xxxxx wishes to acquire,
in exchange solely for its own voting stock, an additional 300
shares of the stock of the Company, the result of which will be
that Xxxxx will immediately after the acquisition have control of
the Company (within the meaning of Section 368(c)(1) of the
Internal Revenue Code of 1986, as amended). Accordingly, Xxxxx
and Xxxxxx desire to exchange (the "Exchange") three hundred
(300) shares of common stock of the Company (the "Subject
Shares") held by Sattel for three hundred fifty thousand
(350,000) shares of common stock, $1.00 par value per share, of
Xxxxx (the "Xxxxx Shares") pursuant to the terms and conditions
hereinafter set forth. In connection with the Exchange, Xxxxx
has agreed to undertake certain obligations to register the Xxxxx
Shares and to xxxxx Xxxxxx certain registration rights with
respect thereto as more specifically set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Sattel and Xxxxx agree as follows:
1. Exchange of Stock. At the Closing (as hereinafter
defined) subject to the terms and conditions set forth herein,
Sattel shall transfer, assign and convey to Xxxxx all of Sattel's
right, title and interest in the Subject Shares, free and clear
of all liens, claims, encumbrances and restrictions. In exchange
for the Subject Shares, at the Closing, Xxxxx shall transfer,
assign and convey to Sattel all of Diana's right, title and
interest in the Xxxxx Shares, free and clear of all liens,
claims, encumbrances and restrictions.
2. Closing. The Closing of the Exchange (the
"Closing") shall occur concurrently with the excecution and
delivery of this Agreement. At the Closing, the following shall
occur, all of which action shall be deemed to have occured
simultaneously:
(a) Sattel shall deliver to Xxxxx a certificate
or certificates representing the Subject Shares duly
endorsed or endorsed in blank or accompanied by validly
executed stock powers.
(b) Xxxxx shall deliver to Sattel a certificate
or certificates representing the Xxxxx Shares registered in
the name of Sattel.
3. Representations and Warranties of Sattel. Sattel
hereby represents and warrants to Xxxxx as follows, which
representations and warranties shall survive the Closing.
3.1. Title to Subject Shares. Sattel owns and at the
Closing will deliver to Xxxxx good, valid and marketable title to
the Subject Shares, free and clear of all liens, encumbrances,
agreements, charges, options, security interests, pledges, claims
or restrictions of any nature whatsoever, except for restrictions
of applicable state and federal securities laws.
3.2 Authority. The execution, delivery and
performance of this Agreement by Sattel have been duly authorized
by all necessary corporate proceedings on the part of Sattel, and
this Agreement constitutes the valid and legally binding obliga-
tion of Sattel, enforceable in accordance with its terms, except
to the extent limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by general equitable principles.
3.3. Investment Representations and Covenants.
(a) Sattel is acquiring the Xxxxx Shares for
investment, for Sattel's own account and not with a view to
or for resale, fractionalization, or division, in connection
with any distribution thereof in violation of the Securities
Act of 1933, as amended, or the applicable rules and
regulations adopted thereunder (collectively, the
"Securities Act"), except for distributions through the
Registration Rights Agreement in compliance with the
Securities Act. Sattel understands that the offer and sale
of the Xxxxx Shares to Sattel have not been registered under
the Securities Act or under any state securities laws, by
reason of exemptions from the registration provisions of the
Securities Act, and the applicable state securities laws,
but will be registered in accordance with the Registration
Rights agreement. Accordingly, the Xxxxx Shares are
93restricted securities94 under the Securities Act and Sattel
acknowledges and agrees that the Xxxxx Shares must be held
indefinitely unless they are subsequentyly registered under
the Securities Act, as required under the Registration
Rights Agreement, and any applicable state securities laws,
or an exemption from such registration is available, as
determined by Xxxxx in its sole discretion.
(b) Sattel is familiar with, and Sattel has been
given full access by Xxxxx to, all information concerning
the business and financial condition, properties, operations
and prospects of Xxxxx that Sattel has deemed relevant for
purposes of acquiring the Xxxxx Shares. Sattel has had full
opportunity to discuss with Xxxxx its business, financial
condition, properties, operations, and prospects, and all
such other matters as Sattel has deemed appropriate in
connection with acquiring the Xxxxx Shares. Sattel has
reviewed, among other things, a copy of Diana's most recent
Form 10-K, Form 10-Q, Annual Report to Stockholders, and
Proxy Statement.
(c) Sattel is able to bear the economic risk of
making the investment in the Xxxxx Shares, including,
without limiting the generality of the foregoing, the risk
of losing part of or all Sattel's investment and the
possible inability to sell or transfer the Xxxxx Shares for
an indefinite period of time.
(d) By reason of Sattel's knowledge and
experience in financial and business matters in general,
Sattel is capable of evaluating the merits and risks of
acquiring the Xxxxx Shares.
(e) The Xxxxx Shares and each certificate
evidencing the Xxxxx Shares (or interests therein) shall
(unless the transfer of the securities evidenced by such
certificate shall have been registered under the Securities
Act and applicable state securities laws) be stamped or
otherwise imprinted with a legend in substantially the
following form (in addition to any legend required under
applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES
LAWS. THEY MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES
LAW, OR (ii) AN APPLICABLE EXEMPTION THEREFROM AND IN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE XXXXX
CORPORATION IS FURNISHED TO THE EFFECT THAT SUCH EXEMPTION
IS AVAILABLE.
(f) Sattel will comply with all applicable
federal and state securities laws in connection with any
sale or transfer of the Xxxxx Shares including, without
limitation, Rules 10b-5 and 10b-6 under the Securities
Exchange Act of 1934, as amended, and Section 5 of the
Securities Act.
4. Representations and Warranties of Xxxxx. Xxxxx
hereby represents and warrants to Sattel as follow, which
representations and warranties shall survive the Closing.
4.1. Title to Subject Shares. Xxxxx owns or will
newly issue the Xxxxx Shares and at the Closing will deliver to
Sattel good, valid and marketable title to the Xxxxx Shares, free
and clear of all liens, encumbrances, agreements, charges,
options, security interests, pledges, claims or restrictions of
any nature whatsoever except for restrictions of applicable state
and federal securities laws.
4.2 Authority. The execution, delivery and
performance of this Agreement by Xxxxx have been duly authorized
by all necessary corporate proceedings on the part of Xxxxx, and
this Agreement constitutes the valid and legally binding
obligation of Xxxxx, enforceable in accordance with its terms,
except to the extent limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, or by general
equitable principles.
4.3. Investment Representations and Covenants.
(a) Xxxxx is acquiring the Subject Shares for
investment, for Diana's own account and not with a view to
or for resale, fractionalization, or division, in connection
with any distribution thereof in violation of the Securities
Act. Xxxxx understands that the offer and sale of the
Subject Shares to Xxxxx have not been registered under the
Securities Act or under any state securities laws, by reason
of exemptions from the registration provisions of the
Securities Act, and the applicable state securities laws.
Accordingly, the Subject Shares are "restricted securities"
under the Securities Act and Xxxxx acknowledges and agrees
that the Subject Shares must be held indefinitely unless
they are subsequently registered under the Securities Act,
and any applicable state securities laws, or an exemption
from such registration is available, as determined by the
Company in its sole discretion.
(b) Xxxxx is familiar with, and Xxxxx has been
given full access to, all information concerning the
business and financial condition, properties, operations and
prospects of the Company that Xxxxx has deemed relevant for
purposes of acquiring the Subject Shares. Xxxxx has had
full opportunity to discuss with the Company and Sattel the
Company's business, financial condition, properties,
operations, and prospects, and all such other matters as
Xxxxx has deemed appropriate in connection with acquiring
the Subject Shares. Notwithstanding the foregoing, nothing
contained herein shall relieve Sattel of its obligations
pursuant to specific representations and warranties made to
Xxxxx in this Agreement.
(c) Xxxxx is able to bear the economic risk of
making the investment in the Subject Shares, including,
without limiting the generality of the foregoing, the risk
of losing part of or all Diana's investment and the possible
inability to sell or transfer the Subject Shares for an
indefinite period of time.
(d) By reason of Diana's knowledge and experience
in financial and business matters concerning the Company
(and in the prior Joint Venture), Xxxxx is capable of
evaluating the merits and risks of acquiring the Subject
Shares.
5. Registration Rights. Xxxxx hereby grants to
Sattel the registration rights set forth on Exhibit A, attached
hereto and incorporated herein, with respect to the Xxxxx Shares
(the "Registration Rights").
6. Miscellaneous.
6.1. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties and each of
their respective successors and assigns.
6.2. Severability. If any provision of this Agreement
is held for any reason to be unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall,
nevertheless, remain in full force and effect in such
jurisdiction.
6.3. Use of Words. The use of the plural shall, when
appropriate, include the singular and vice versa. Section
headings are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement or any provision
hereof.
6.4. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of Nevada without
regard to the principles of conflicts of law thereunder.
6.5. Entire Agreement. This Agreement and the
documents and instruments delivered in connection with this
Agreement constitute the entire agreement among the parties and
all prior agreements, correspondence, discussions and
understandings of the parties are merged and made a part of this
Agreement.
6.6. Notices. Any notice required or permitted to be
given or made by either party to the other hereunder shall be
deemed delivered if hand delivered, five (5) days after mailed
postage prepaid, one (1) business day after being sent by prepaid
express or courier delivery service or one (1) business day after
being sent by facsimile transmission and actually received by
receiving equipment to the parties at their respective addresses
set forth opposite the signatures hereto or to such changed
address as either party shall designate by proper notice to the
other.
6.7. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
6.8. Reorganization. It is anticipated that the
exchange of Subject Shares for the Xxxxx Shares will qualify as a
"reorganization" under Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended. However, Sattel has made its
own determination, with advice of its counsel, regarding how the
transaction will be treated for tax purposes and is not relying
upon the other party or its counsel with respect to such
treatment. Both Xxxxx and Xxxxxx agree to report the transaction
as a reorganization under section 368 (a) (I) (b) for income tax
purposes
6.9. Tax Returns. It is understood that the Company
will report its income, or loss, for the period ending on the
date of Closing as a separate taxpayer, but thereafter will
become a member of the Xxxxx consolidated group.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
Address for Notice: THE XXXXX CORPORATION
_________________________
_________________________
Fax No. _________________ By: ____________________________
Xxxxxxx X. Xxxxxx, Chairman
With a copy to:
Xxxxxxx & Xxxx, S.C.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Fax No. (000) 000-0000
09
Address for Notice: SATTEL TECHNOLOGIES, INC.
_________________________
_________________________
Fax No. _________________ By: ____________________________
Xxxxxx Xxxxxxxxxx, Chairman
With a copy to:
Fulbright & Xxxxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
Fax No. (000) 000-0000
EXHIBIT A TO EXCHANGE AGREEMENT
REGISTRATION RIGHTS
1. Initial Registration. Promptly (but in no event later than
twenty (20) days) after the Closing, Xxxxx shall file with the Securities
and Exchange Commission (the "Commission") and use its reasonable best efforts
to cause to become effective a Registration Statement (the "Registration
Statement") on a proper form to be selected by Xxxxx under and complying
with the Securities Act of 1933 as amended (the "Securities Act") with respect
to the offering by Sattel of the three hundred fifty thousand (350,000) Xxxxx
Shares. Xxxxx shall keep the Registration Statement effective until the
earlier of the date on which Sattel has transferred all of the Xxxxx Shares
or December 31, 1997. Sattel shall be permitted to sell under the Registration
Statement, up to fifty thousand (50,000) Xxxxx Shares at any time following
the date on which the Registration Statement becomes effective, an
additional one hundred fifty thousand (150,000) Xxxxx Shares at any time after
twelve
(12) months following the Closing, and the remaining one hundred fifty
thousand (150,000) Xxxxx Shares at any time after eighteen (18) months
following the Closing; provided that if the closing price on the New York
Stock Exchange ("NYSE") of a Xxxxx Share shall on any date be equal or
greater than 125% of the closing price on the NYSE of a Xxxxx Share on the
date of the Closing, then Sattel shall thereafter be permitted to sell all of
its Xxxxx Shares. Notwithstanding the foregoing, Sattel shall notify Xxxxx
of, and obtain conformation from Xxxxx prior to, any offers or sales by Sattel
of Xxxxx Shares of no Blackout Condition. If Xxxxx determines, in its
reasonable good faith judgement, that because of the existence of, or in
anticipation of, any acquisition or financing activity, the unavailability
of any required financial statements as the result of an actual, or proposed,
acquisition, or the existence of any other material non-public information
(a "Blackout Condition"), it would be materially adverse to Xxxxx for the
registration of the Xxxxx Shares to be maintained effective, or to be filed
and become effective, or for the Xxxxx Shares to be sold under the Registration
Statement, then Xxxxx shall be entitled, until such Blackout Condition no
longer exists, or is terminated or provided herein, to (i) if required by
law, cause the Registration Statement to be withdrawn and the effectiveness of
the Registration Statement to be delayed or terminated; (ii) direct that Sattel
not make any public sales of Xxxxx Shares; or (iii) in the event the
Registration Statement has not yet been filed, to delay or not file the
Registration Statement; provided that, unless Xxxxx notifies Sattel of a
Blackout Condition, Sattel may sell 50,000 Xxxxx Shares within the first
sixty (60) days following the effective date of the Registration Statement
without further notice. Xxxxx shall have one (1) business day after the
receipt of notice from Sattel to declare the existence of a Blackout Condition.
Diana92s response shall be communicated via personal delivery, telecopy or
overnight courier. If no timely response is received by Sattel from Xxxxx,
Xxxxx shall be deemed to have permitted such sale. In the event Xxxxx causes
the Registration Statement to be withdrawn or delayed and terminated pursuant
to clause (i), or clause (iii), of the preceding sentence as a result of a
Blackout Condition, Xxxxx shall file and use its reasonable best efforts to
cause the Registration Statement to become effective promptly after a
Blackout Condition ceases to exist. For purposes hereof, a Blackout Condition
other than the unavailability of any required financial statements shall be
deemed to terminate on the earlier of (i) the date such Blackout Condition
ceases to exist or (ii) thirty (30) days after Diana's determination thereof,
and a Blackout Condition which is the unavailability of any required financial
statements as the result of an actual or proposed acquisition shall be deemed
to terminate on the earlier of (i) the date such Blackout Condition ceases
to exist or (ii) seventy-five (75) days after the closing date of such
acquisition. Sattel shall not to make any offers or sales of Xxxxx Shares
to the public until the Blackout Condition no longer exists or is terminated
and shall comply with any prospectus delivery requirements in connection with
Sattel's offer and sale of Xxxxx Shares under the Registration Statement.
Sattel shall offer and sell the Xxxxx Shares only in accordance with the
plan of distribution described in the Registration Statement.
2. Registration Procedures. Promptly after the Closing, Xxxxx shall:
(a) prepare and file with the Commission the Registration
Statement, and use its reasonable best efforts to cause such
Registration Statement to become and remain effective all as set
forth in paragraph 1;
(b) prepare and file with the Commission such amendments to
such Registration Statement and supplements to the prospectus
contained therein as may be necessary to keep such Registration
Statement effective for such period as may be reasonably necessary
to effect the sale of such securities;
(c) furnish to Sattel and to the underwriters of the
securities being registered such reasonable number of copies of
the Registration Statement, preliminary prospectus, final
prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of
such securities;
(d) use its best efforts to register or qualify the
securities covered by such Registration Statement under such state
securities or blue sky laws of such jurisdictions as Sattel may
reasonably request in writing except that Xxxxx shall not for any
purpose be required to execute a general consent to service of
process or to qualify to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified;
(e) notify Sattel promptly after it shall receive notice
thereof, of the time when such Registration Statement has become
effective or a supplement to any prospectus forming a part of such
Registration Statement has been filed;
(f) notify Sattel promptly of any request by the Commission
for the amending or supplementing of such Registration Statement
or prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the
request of Sattel any amendments or supplements to such
Registration Statement or prospectus which, in the opinion of
counsel for Sattel is required under the Securities Act or the
rules and regulations thereunder in connection with the
distribution of the Xxxxx Shares by Sattel;
(h) prepare and promptly file with the Commission and
promptly notify Sattel of the filing of such amendment or
supplement to such Registration Statement or prospectus as may be
necessary to correct any statements or omissions if, at the time
when a prospectus relating to such securities is required to be
delivered under the Securities Act, any event shall have occurred
as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which
they were made, not misleading;
(i) advise Sattel promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such Registration
Statement or the initiation or threatening of any proceeding for
that purpose and promptly use its reasonable best efforts to
prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued;
(j) not file any amendment or supplement to such
Registration Statement or prospectus to which Sattel shall have
reasonably objected on the grounds that such amendment or
supplement does not comply in all material respects with the
requirements of the Securities Act or the rules and regulations
thereunder, after having been furnished with a copy thereof at
least five business days prior to the filing thereof, unless in
the opinion of counsel for Xxxxx the filing of such amendment or
supplement is reasonably necessary to protect Xxxxx from any
liabilities under any applicable federal or state law and such
filing will not violate applicable law; and
(k) at the request of Sattel, in connection with an
underwritten offering of Xxxxx Shares, furnish: (i) an opinion,
dated as of the closing date, of the counsel representing Xxxxx
for the purposes of such registration, addressed to the
underwriters, and to Sattel, covering such matters as such
underwriters and Sattel may reasonably request; and (ii) letters
dated as of the effective date of the Registration Statement and
as of the closing date, from the independent certified public
accountants of Xxxxx, addressed to the underwriters, and to
Sattel, covering such matters as such underwriters and holder or
holders may reasonably request.
3. Expenses. With respect to the registration of the Xxxxx
Shares pursuant to the Registration Statement, Xxxxx shall bear the
following fees, costs and expenses: all registration, filing and NASD fees,
printing expenses, fees and disbursements of counsel and accountants for Xxxxx,
all internal Xxxxx expenses, all legal fees and disbursements and other
expenses of complying with state securities or blue sky laws of any
jurisdictions in which the securities to be offered are to be registered or
qualified, and the premiums and other costs of policies of insurance against
liability (if any) arising out of such public offering. Fees and disbursements
of counsel and accountants for Sattel, underwriting discounts and commissions
and transfer taxes relating to Xxxxx Shares, fees and disbursements of counsel
for the underwriter or underwriters of such securities (if selling
securityholders are required to bear such fees and disbursements) and any
other expenses incurred by Sattel not expressly included above, shall be borne
by Sattel.
4. Indemnification. Pursuant to the registration of the Xxxxx
Shares hereunder:
(a) Xxxxx will indemnify and hold harmless Sattel, its
directors and officers, and any underwriter (as defined in the
Securities Act) for Sattel and each person, if any, who controls
Sattel or such underwriter within the meaning of the Securities
Act, from and against, and will reimburse Sattel and each such
underwriter and controlling person with respect to, any and all
loss, damage, liability, cost and expense to which Sattel or any
such underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement
or alleged untrue statement of any material fact contained in such
Registration Statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made,
not misleading; provided, however, that Xxxxx will not be liable
in any such case to the extent that any such loss, damage,
liability, cost or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission so made in conformity with information furnished
by Sattel, such underwriter or such controlling person in writing
specifically for use in the preparation thereof; provided,
however, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any
underwriter from whom the person asserting any such loss, damage,
liability, cost or expense purchased Xxxxx Shares, or any persons
controlling such underwriter, if a copy of the prospectus (as then
amended or supplemented if Xxxxx shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such underwriter to such person at or prior to the
written confirmation of the sale of Xxxxx Shares to such person
and if the prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, damage, liability, cost
or expense.
(b) Sattel will indemnify and hold harmless Xxxxx, its
directors and officers, any controlling person and any underwriter
from and against, and will reimburse Xxxxx, its directors and
officers, any controlling person and any underwriter with respect
to, any and all loss, damage, liability, cost or expense to which
Xxxxx or any controlling person and/or any underwriter may become
subject under the Securities Act or otherwise, insofar as such
losses, damages, liabilities, costs or expenses are caused by any
untrue or alleged untrue statement of any material fact contained
in such Registration Statement, any prospectus contained therein
or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which
they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was so made in reliance
upon written information furnished by Sattel specifically for use
in the preparation thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this
paragraph 4 of notice of the commencement of any action involving
the subject matter of the foregoing indemnity provisions such
indemnified party will, if a claim thereof is to be made against
the indemnifying party pursuant to the provisions of said
paragraph (a) or (b), promptly notify the indemnifying party of
the commencement thereof; but the omission to so notify the
indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than hereunder. In
case such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party,
provided, however, if the defendants in any action include both
the indemnified party and the indemnifying party and if there is a
conflict of interest which would prevent counsel for the
indemnifying party from also representing the indemnified party,
the indemnified party or parties shall have the right to select
separate counsel to participate in the defense of such action on
behalf of such indemnified party or parties, but in no event shall
the indemnifying parties be responsible for more than one such
additional firm for all indemnified parties. After notice from
the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party pursuant to the provisions of
said paragraph (a) or (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation,
unless (i) the indemnified party shall have employed counsel in
accordance with the proviso of the preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after the notice of the commencement of the
action, or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party.
(d) If the indemnification provided for in this paragraph
4 is unavailable or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) above, in such
proportion as is in such proportion as is appropriate to reflect
the relative fault of Xxxxx, the selling stockholders and the
underwriters in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by Xxxxx, the selling stockholders
or the underwriters and the parties' relevant intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. Xxxxx, the selling stockholders and
the underwriters shall agree that it would not be just and
equitable if contributions pursuant to this paragraph (d) were to
be determined by pro rata allocation (even if the underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this
paragraph (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to
in the first sentence of this paragraph (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
against any action or claim which is the subject of this
paragraph (d). 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.
5. Sattel Cooperation. Xxxxx may require Sattel to xxxxxxx Xxxxx
in a timely manner such information with respect to Sattel and the
distribution of Xxxxx Stock as Xxxxx may from time to time reasonably
request. In connection with the registration of Xxxxx Stock, Sattel will
(a) cooperate with Xxxxx and the underwriter, if any, in preparing the
Registration Statement, (b) promptly supply Xxxxx and the underwriter with
all information and documents as the underwriter or Xxxxx may xxxx
reasonably necessary, (c) discontinue sales of Xxxxx Stock upon notification
of any stop order or suspension of the effectiveness of the Registration
Statement, (d) notify Xxxxx immediately upon any change in the plan of
distribution or other information concerning Sattel described in the
prospectus, (e) discontinue use of any prospectus following notification
by Xxxxx that the prospectus must be amended or supplemented, (f) comply with
the applicable requirements of Rules 10b-5 and 10b-6 under the Securities
Exchange Act of 1934, as amended, (g) not use any prospectus other than the
most recent prospectus included in the Registration Statement, and
(h) otherwise comply with the prospectus delivery requirements under the
Securities Act.
6. Defined Terms. Terms with initial capital letters not
otherwise defined herein shall have the meaning assigned in the Exchange
Agreement to which these Registration Rights are an exhibit.
7. Assignment. Sattel92s rights under this agreement may be
assigned, in whole or in part, to any subsequent transferee of Sattel 92s
Xxxxx shares, including, without limitation, any pledgee of such Xxxxx Shares.
8. Notices. All notices hereunder shall be in writing and
shall be deemed to have been duly given upon delivery if delivered
personally, twenty-four (24) hours after transmission by telecopy with
answerback, 12:00 p.m. (noon) of the next business day after being sent via
overnight courier, and five (5) days after being mailed, certified return
receipt requested. Actual notice, however given, shall always be effective.
