REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of November
3, 2005 by and among Xxxx Xxxxx, Inc., a Maryland corporation (the "Company"),
Permal Group SCA, a company organized under the laws of France ("Parent"), Worms
UK Ltd, a company organized under the laws of England and Wales ("Sequana Sub"),
and the other shareholders identified on the signature pages hereto (the
"Management Shareholders") (Sequana Sub, the Management Shareholders and Parent
are collectively referred to herein as the "Sellers")
Background
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A. In connection with a certain Purchase Agreement, dated as of June
23, 2005 (the "Purchase Agreement"), to which the parties hereto are party, the
Company has agreed, upon the terms and subject to the conditions set forth in
the Purchase Agreement, to issue shares of the Company's common stock, par value
$0.10 per share (the "Common Stock"), in consideration of the Company's
acquisition from the Sellers of the capital stock of Permal Group Ltd, a company
organized under the laws of England and Wales.
B. To induce the Sellers to execute and deliver the Purchase Agreement,
the Company has agreed to provide certain registration rights under the
Securities Act of 1933, as amended, and the rules and regulations thereunder, or
any similar successor statute (collectively, the "1933 Act"), and applicable
state securities laws.
Agreement
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In consideration of the various representations, warranties,
covenants and other agreements and undertakings of the parties contained in this
Agreement and intending to be legally bound, the parties agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
(a) "Acquired Common Stock" means the Common Stock acquired by the
Sellers as consideration pursuant to the transactions contemplated by the
Purchase Agreement.
(b) "Business Day" means any day other than Saturday, Sunday or
any other day on which commercial banks in The City of New York are authorized
or required by law to remain closed.
(c) "Filing Deadline" means 30 days after each issuance by the
Company to the Sellers pursuant to the Purchase Agreement.
(d) "Holder" means a Seller or a transferee or assignee thereof to
whom a Seller assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement.
(e) "Person" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
(f) "register," "registered," and "registration" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant to
Rule 415 and the declaration or ordering of effectiveness of such Registration
Statement(s) by the SEC.
(g) "Registrable Securities" means the Acquired Common Stock and
any additional securities issued in respect of the Acquired Common Stock.
(h) "Registration Statement" means a registration statement or
registration statements of the Company filed under the 1933 Act covering the
Registrable Securities.
(i) "Rule 415" means Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous or delayed basis.
(j) "SEC" means the United States Securities and Exchange
Commission.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Purchase Agreement.
2. Registration.
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(a) Mandatory Registration. In each instance in which Common Stock
is issued by the Company pursuant to the Purchase Agreement, the Company shall
prepare, and, as soon as practicable, but in no event later than the Filing
Deadline file with the SEC the Registration Statement on Form S-3 covering the
resale of all of the Registrable Securities. In the event that Form S-3 is
unavailable for such a registration, the Company shall use such other form as is
available for such a registration. Such Registration Statement prepared pursuant
hereto shall register for resale at least the number of shares of Acquired
Common Stock. Such Registration Statement shall contain (except if otherwise
directed by the holders of at least a majority of the Registrable Securities)
the "Selling Stockholders" section in a customary form and containing the
information provided by the Sellers and the "Plan of Distribution" in
substantially the form attached hereto as Exhibit A. The Company shall use its
reasonable best efforts to have the Registration Statement declared effective by
the SEC as soon as practicable.
(b) Legal Counsel. Subject to Section 5 hereof, the Sellers
holding at least a majority of the Registrable Securities shall have the right
to select one legal counsel to review and oversee any registration pursuant to
this Section 2 ("Legal Counsel"), which shall be Shearman & Sterling LLP or such
other counsel as thereafter designated by the holders of at least a majority of
the Registrable Securities. The Company and Legal Counsel shall reasonably
cooperate with each other in performing the Company's obligations under this
Agreement.
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(c) Ineligibility for Form S-3. In the event that Form S-3 is not
available for the registration of the resale of Registrable Securities
hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the holders of
at least a majority of the Registrable Securities and (ii) undertake to register
the Registrable Securities on Form S-3 as soon as such form is available,
provided that the Company shall maintain the effectiveness of the Registration
Statement then in effect until such time as a Registration Statement on Form S-3
covering the Registrable Securities has been declared effective by the SEC.
3. Related Obligations.
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At such time as the Company is obligated to file a Registration
Statement with the SEC pursuant to Section 2(a) or 2(c), the Company will use
its reasonable best efforts to effect the registration of the Registrable
Securities in accordance with the Plan of Distribution and the Company shall
have the following obligations:
(a) The Company shall submit to the SEC, within two (2) Business
Days after the Company learns that no review of a particular Registration
Statement will be made by the staff of the SEC or that the staff of the SEC has
no further comments on a particular Registration Statement, as the case may be,
a request for acceleration of effectiveness of such Registration Statement to a
time and date not later than 48 hours after the submission of such request,
except in cases in which the Company determines in good faith that such
Registration Statement cannot be made effective at such time. The Company shall
keep each Registration Statement effective pursuant to Rule 415 at all times
until the earlier of (i) the date as of which all of the Sellers may sell all of
the Registrable Securities covered by such Registration Statement without
restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under
the 1933 Act, (ii) the date on which the Holders shall have sold all of the
Registrable Securities covered by such Registration Statement, or (iii) the date
two years after the date of the last issuance of Common Stock pursuant to the
Purchase Agreement (the "Registration Period"). The Company shall ensure that
each Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein, or
necessary to make the statements therein (in the case of prospectuses, in the
light of the circumstances in which they were made) not misleading, other than
with respect to the information provided to the Company by the Holders.
(b) The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with such
Registration Statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to
this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form
10-Q or Form 8-K or any analogous report under
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the Securities Exchange Act of 1934, as amended (the "1934 Act"), the Company
shall have incorporated such report by reference into such Registration
Statement, if applicable, or shall file such amendments or supplements with the
SEC on the same day on which the 1934 Act report is filed which created the
requirement for the Company to amend or supplement such Registration Statement.
(c) The Company shall (A) permit Legal Counsel to review and
comment upon (i) a Registration Statement at least five (5) Business Days prior
to its filing with the SEC and (ii) all amendments and supplements to all
Registration Statements (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K and any similar or
successor reports) within a reasonable number of days prior to their filing with
the SEC, and (B) not file any Registration Statement or amendment or supplement
thereto (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K and any similar or successor reports and any
exhibits incorporated by reference therein) in a form to which Legal Counsel
reasonably objects in writing. The Company shall furnish to Legal Counsel,
without charge, (i) copies of any correspondence from the SEC or the staff of
the SEC to the Company or its representatives relating to any Registration
Statement, (ii) promptly after the same is prepared and filed with the SEC, one
copy of any Registration Statement and any amendment(s) thereto, including, to
the extent not available on the XXXXX system, financial statements and
schedules, all documents incorporated therein by reference, if requested by a
Holder, and all exhibits and (iii) upon the effectiveness of any Registration
Statement, one copy of the prospectus included in such Registration Statement
and all amendments and supplements thereto. The Company shall reasonably
cooperate with Legal Counsel in performing the Company's obligations pursuant to
this Section 3.
(d) The Company shall furnish to each Holder whose Registrable
Securities are included in any Registration Statement, without charge, (i)
promptly after the same is prepared and filed with the SEC, at least one copy of
each prospectus included in such Registration Statement, (ii) upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto,
including financial statements and schedules, and, if the Holder so requests in
writing, all exhibits (including those, if any, incorporated by reference) (or
such other number of copies as such Holder may reasonably request) and (iii)
such other documents, including copies of any prospectus, as such Holder may
reasonably request from time to time in order to facilitate the disposition of
the Registrable Securities owned by such Holder.
(e) The Company shall use its reasonable best efforts to (i)
register and qualify, unless an exemption from registration and qualification
applies, the resale by Holders of the Registrable Securities covered by a
Registration Statement under such other securities or "blue sky" laws of all
applicable jurisdictions in the United States, (ii) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (x) qualify to do business in any jurisdiction where it would
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not otherwise be required to qualify but for this Section 3(e), (y) subject
itself to general taxation in any such jurisdiction, or (z) file a general
consent to service of process in any such jurisdiction. The Company shall
promptly notify Legal Counsel and each Holder who holds Registrable Securities
of the receipt by the Company of any notification with respect to the suspension
of the registration or qualification of any of the Registrable Securities for
sale under the securities or "blue sky" laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threatening of any
proceeding for such purpose.
(f) The Company shall notify Legal Counsel and each Holder in
writing of the happening of any event, as promptly as practicable after becoming
aware of such event, as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission 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 (provided that in no event shall such
notice contain any material, nonpublic information), and, subject to Section
3(o), promptly prepare a supplement or amendment to such Registration Statement
to correct such untrue statement or omission, and one copy of such supplement or
amendment to Legal Counsel and each Holder (or such other number of copies as
Legal Counsel or such Holder may reasonably request). Such notice shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made. The Company shall also promptly notify Legal
Counsel and each Holder in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective (notification of
such effectiveness shall be delivered to Legal Counsel and each Holder by
facsimile on the same day of such effectiveness and by overnight mail), (ii) of
any request by the SEC for amendments or supplements to a Registration Statement
or related prospectus or related information, and (iii) of the Company's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.
(g) The Company shall use its reasonable best efforts to prevent
the issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify Legal Counsel and each Holder who
holds Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
(h) The Company shall cooperate with the Holders who hold
Registrable Securities being offered and, to the extent applicable, facilitate
the timely preparation and delivery of certificates (not bearing any restrictive
legend) representing the Registrable Securities to be offered pursuant to a
Registration Statement and enable such certificates to be in such denominations
or amounts, as the case may be, as the Holders may reasonably request and
registered in such names as the Holders may request.
(i) The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement to be registered with
or approved by such other United States federal, state and local governmental
agencies or authorities as may be necessary to consummate the disposition of
such Registrable Securities.
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(j) The Company shall otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC in connection with
any registration hereunder, and make earnings statements satisfying the
provisions of Section 11(a) of the 1933 Act generally available to the Holders
no later than forty five (45) days after the end of any twelve-month period (or
ninety (90) days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the Registration Statement, which statements shall cover said twelve-month
periods.
(k) Within two (2) Business Days after a Registration Statement
which covers Registrable Securities is ordered effective by the SEC, the Company
shall deliver to the transfer agent for such Registrable Securities (with copies
to the Holders whose Registrable Securities are included in such Registration
Statement) confirmation that such Registration Statement has been declared
effective by the SEC.
(l) Notwithstanding anything to the contrary herein, at any time
after a Registration Statement has been declared effective by the SEC, the
Company may delay the disclosure of material non-public information concerning
the Company which would, in accordance with the advice of its counsel, be
required to be disclosed and the disclosure of which at the time, in the good
faith judgment of an executive officer of the Company, would materially and
adversely affect or interfere with any financing, acquisition, merger,
disposition, corporate reorganization or other similar transaction (not in the
ordinary course of business) in respect of which the Company proposes and in
respect of which the Company has taken significant action (including
commencement of negotiations or discussions) to engage or would otherwise be
materially adverse to the Company's interests (a "Grace Period"); provided, that
the Company shall promptly (i) notify the Holders in writing of the existence of
material non-public information giving rise to a Grace Period (provided that in
each notice the Company will not disclose the content of such material
non-public information to the Holders) and the date on which the Grace Period
will begin, and (ii) notify the Holders in writing of the date on which the
Grace Period ends; and, provided, further, that no Grace Period shall exceed
thirty (30) consecutive days and during any three hundred sixty-five (365) day
period such Grace Periods shall not exceed an aggregate of sixty (60) days and
the first day of any Grace Period must be at least fifteen (15) days after the
last day of any prior Grace Period (each, an "Allowable Grace Period"). For
purposes of determining the length of a Grace Period above, such period shall
begin on and include the date the Holders receive the notice referred to in
clause (i) and shall end on and include the later of the date the Holders
receive the notice referred to in clause (ii) and the date referred to in such
notice. The provisions of Section 3(g) hereof shall not be applicable during the
period of any Allowable Grace Period. Upon expiration of the Grace Period, the
Company shall again be bound by the first sentence of Section 3(f) with respect
to the information giving rise thereto unless such material, non-public
information is no longer applicable.
(m) Subject to such persons entering into a customary
confidentiality agreement with the Company, the Company shall make reasonably
available for inspection by Legal Counsel all relevant financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all relevant
information reasonably requested by such representative, attorney, accountant or
agent in connection with the registration.
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4. Obligations of the Holders.
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(a) At least ten (10) Business Days prior to the first anticipated
filing date of a Registration Statement, the Company shall notify each Holder in
writing of the information the Company requires from each such Holder if such
Holder elects to have any of such Holder's Registrable Securities included in
such Registration Statement. It shall be a condition precedent to the
obligations of the Company to complete such registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Holder that
such Holder shall furnish to the Company such information regarding itself and
the Registrable Securities held by it as shall be reasonably required to effect
the effectiveness of the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request.
(b) Each Holder, by such Holder's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Holder has notified the Company in writing of
such Holder's election to exclude all of such Holder's Registrable Securities
from such Registration Statement.
(c) Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f), such Holder will immediately discontinue disposition
of Registrable Securities pursuant to any Registration Statement(s) covering
such Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) or the first
sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of a
Holder in accordance with the terms of the Securities Purchase Agreement in
connection with any sale of Registrable Securities with respect to which a
Holder has entered into a contract for sale prior to the Holder's receipt of a
notice from the Company of the happening of any event of the kind described in
Section 3(g) or the first sentence of 3(f) and for which the Holder has not yet
settled.
(d) Each Holder agrees that it shall, in connection with any sales
or other transfers of Registrable Securities pursuant to any Registration
Statement, comply with any applicable prospectus delivery requirements pursuant
to the 1933 Act.
5. Expenses of Registration.
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All reasonable expenses incurred in connection with registrations,
filings or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees, word processing,
duplicating, printers and accounting fees (including the expenses of any special
audits or "comfort" letters required by or incident to such performance and
compliance), or listing fees, messenger and delivery expenses, all fees and
expenses of complying with state securities or blue sky laws, fees and
disbursements of counsel for the Company, and fees and disbursements of Legal
Counsel shall be paid by the Company, except for brokerage fees, or
underwriters' discounts or commissions incurred by the Holders.
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6. Indemnification.
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In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and
hereby does, indemnify, hold harmless and defend each Holder, the directors,
officers, members, partners, employees, agents, representatives of, and each
Person, if any, who controls any Holder within the meaning of the 1933 Act or
the 1934 Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys' fees, amounts paid in settlement or expenses, joint or several
(collectively, "Claims"), incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether or
not an indemnified party is or may be a party thereto ("Indemnified Damages"),
to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction in
which Registrable Securities are offered ("Blue Sky Filing"), or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
prospectus included in any Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in the light of the circumstances under which the statements therein
were made, not misleading, or (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the offer or sale of the Registrable Securities pursuant to a
Registration Statement (the matters in the foregoing clauses (i) through (iii)
being, collectively, "Violations"). Subject to Section 6(c), the Company shall
reimburse the Indemnified Persons, promptly as such expenses are incurred and
are due and payable, for any legal fees or other reasonable expenses incurred by
them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(a): (i) shall not apply to a Claim by an
Indemnified Person arising out of or based upon a Violation which occurs in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such Indemnified Person expressly for use in
connection with the preparation of such Registration Statement or any such
amendment thereof or supplement thereto; (ii) shall not be available to the
extent such Claim is based on a failure of the Holder to properly deliver or to
cause to be delivered the prospectus made available by the Company, including a
corrected prospectus, if such prospectus or corrected prospectus was timely made
available by the Company pursuant to Section 3(d) and, in the case of a
corrected prospectus, such prospectus corrected any misstatement or omission on
which such Claim is based; and (iii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld or
delayed. Such indemnity shall
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remain in full force and effect regardless of any investigation made by or on
behalf of the Indemnified Person and shall survive the transfer of the
Registrable Securities by the Holders.
(b) In connection with any Registration Statement in which a
Holder is participating, each such Holder agrees to severally and not jointly
indemnify, hold harmless and defend, to the same extent and in the same manner
as is set forth in Section 6(a), the Company, each of its directors, each of its
officers who signs a Registration Statement and each Person, if any, who
controls the Company within the meaning of the 1933 Act or the 1934 Act (each,
an "Indemnified Party"), against any Claim or Indemnified Damages to which any
of them may become subject, under the 1933 Act, the 1934 Act or otherwise,
insofar as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, (i) that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use in connection with
such Registration Statement and (ii) based on a failure of the Holder to
properly deliver or to cause to be delivered the prospectus made available by
the Company, including a corrected prospectus, if such prospectus or corrected
prospectus was timely made available by the Company pursuant to Section 3(d)
and, in the case of a corrected prospectus, such prospectus corrected any
misstatement or omission on which such Claim is based; and, subject to Section
6(c), such Holder will reimburse any legal or other expenses reasonably incurred
by an Indemnified Party in connection with investigating or defending any such
Claim; provided, however, that the indemnity agreement contained in this Section
6(b) and the agreement with respect to contribution contained in Section 7 shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Holder, which consent shall
not be unreasonably withheld or delayed; provided, further, however, that the
Holder shall be liable under this Section 6(b) for only that amount of a Claim
or Indemnified Damages as does not exceed the net proceeds to such Holder as a
result of the sale of Registrable Securities pursuant to such Registration
Statement. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities by the Holders.
Notwithstanding anything to the contrary contained herein, the indemnification
agreement contained in this Section 6(b) with respect to any preliminary
prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a Claim,
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses of not more than one counsel for such
Indemnified Person or Indemnified Party to be paid by the indemnifying party,
if, in the reasonable opinion of the Indemnified Person or the Indemnified
Party, as the case may be, the representation by such counsel of the
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Indemnified Person or Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. In the case of an Indemnified Person, legal counsel
referred to in the immediately preceding sentence shall be selected by the
Investors holding at least a majority in interest of the Registrable Securities
included in a Registration Statement to which the Claim relates. The Indemnified
Party or Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its prior written consent, provided, however, that
the indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written consent of the
Indemnified Party or Indemnified Person, consent to entry of any judgment or
enter into any settlement or other compromise which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party or Indemnified Person of a release from all liability in
respect to such Claim or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties, firms
or corporations relating to the matter for which indemnification has been made.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action.
7. Contribution.
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If the indemnification provided for in Section 6 from the indemnifying
party is unavailable to an Indemnified Person or Indemnified Party hereunder in
respect of any Claim, then the indemnifying party, in lieu of indemnifying such
Indemnified Person or Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Person or Indemnified Party as a result of Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and Indemnified Person or Indemnified Party in connection
with the actions which resulted in such Claim, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
Indemnified Person or Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or Indemnified Person or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Claim shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which
10
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.
8. Reports Under The 1934 Act.
---------------------------
With a view to making available to the Holders the benefits of Rule 144
promulgated under the 1933 Act or any other similar rule or regulation of the
SEC that may at any time permit the Holders to sell securities of the Company to
the public without registration ("Rule 144"), the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act so long as
the Company remains subject to such requirements and the filing of such reports
and other documents is required for the applicable provisions of Rule 144; and
(c) furnish to each Holder so long as such Holder owns Registrable
Securities, promptly upon request, (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of Rule 144, the 1933
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested to permit the
Holders to sell such securities pursuant to Rule 144 without registration.
9. Amendment of Registration Rights.
---------------------------------
Provisions of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company,
Parent and Management Shareholders who then hold at least a majority of the
Registrable Securities issued to Management Shareholders. Any amendment or
waiver effected in accordance with this Section 10 shall be binding upon each
Holder and the Company. No such amendment shall be effective to the extent that
it applies to less than all of the holders of the Registrable Securities. No
consideration shall be offered or paid to any Person to amend or consent to a
waiver or modification of any provision of any of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.
10. Miscellaneous.
--------------
(a) A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the such record owner of such Registrable Securities.
11
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given if (i) delivered in person, (ii) transmitted
by telecopy (with confirmation), (iii) mailed by certified or registered mail
(return receipt requested and obtained) or (d) delivered by an express courier
(with confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Company:
Xxxx Xxxxx, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: x0 (000) 000-0000
With a copy to:
Dechert LLP
0000 Xxxx Xxxxxxxx Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx
Facsimile: x0 (000) 000-0000
If to Parent or Sequana Sub:
00 Xxxxxx Xxxxxxxx X. Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxx Xxxxxx
Facsimile: x0 (00-0) 00-00-0000
With copies to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
Facsimile: x0 (000) 000-0000
Shearman & Sterling LLP
000, xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: x0 (00-0) 00-00-0000
and
12
Freshfields Bruckhaus Xxxxxxxx
0-0 xxx Xxxx Xxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Antoine Vignial
Facsimile: x0 (00-0) 00-00-0000
If to any Management Shareholder:
Xxxxx X. Xxxxxx
c/o Permal Group Ltd
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: x0 (000) 000-0000
With a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Facsimile: x0 (000) 000-0000
(c) The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties hereto shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or in
equity.
(d) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(e) This Agreement, and all agreements, documents and instruments
delivered pursuant hereto or incorporated herein, unless otherwise expressly
provided therein, shall be governed by, and construed in accordance with, the
substantive laws of the State of New York applicable to agreements made and to
be performed entirely within such state, without reference to the conflicts of
laws rules of such state. Each party hereto, for itself and its successors and
assigns, irrevocably agrees that any suit, action or proceeding arising out of
or relating to this Agreement shall be instituted only in the United States
District Court for the Southern District of New York located in New York, New
York, or in the absence of jurisdiction, the Courts of the State of New York
located within the Borough of Manhattan, City of New York, and generally and
unconditionally accepts and irrevocably submits to the exclusive jurisdiction of
the aforesaid courts and irrevocably agrees to be bound by any final judgment
rendered thereby from which no appeal has been taken or is available in
connection with this Agreement. Each party, for itself and its successors and
assigns, irrevocably waives any objection it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding, including, without
limitation, any objection based on the grounds of forum non conveniens, in the
aforesaid courts. Each of the
13
parties, for itself and its successors and assigns, irrevocably agrees that all
process in any such proceedings in any such court may be effected by mailing a
copy thereof by registered or certified mail (or any substantially similar form
of mail), postage prepaid, to it at its address set forth in Section 9(b) hereof
or at such other address of which the other parties shall have been notified in
accordance with the provisions of Section 9(b) hereof, such service being hereby
acknowledged by the parties to be effective and binding service in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by law.
(f) This Agreement and the instruments referenced herein and
therein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the instruments referenced herein and therein
supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
(g) This Agreement shall inure to the benefit of and be binding
upon the permitted successors and assigns of each of the parties hereto.
(h) This Agreement may be executed in identical counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
[Signature Pages Follow.]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
COMPANY:
XXXX XXXXX, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Executive Vice President
PARENT:
PERMAL GROUP SCA
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President
SEQUANA SUB:
WORMS UK LTD
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title:
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxxxx Xxxxxx
BLOOMINGTON ASSOCIATES LP
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Attorney-in-Fact
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
X. Xxxxxxxxx Xxxxxxx III
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx X'Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx Xxxxxxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxx XxXxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxx de La Haye Jousselin
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxxxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Francois Becquaert
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxx Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxxxx Xxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, as attorney-in-fact for
Xxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxx Xxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Josefin Aldell
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxx Xxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxxxx Xxxxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxx-Xxxxxx XxXxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxxxx
NIGHTINGALE ASSOCIATES LP
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Attorney-in-Fact
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Omar Kodmani
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xx Xxxxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxxx Xxxxxxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxx Xxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxxx Xxxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxx Xxxx
/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Xxxxxx X. XxXxxxx, as attorney-in-fact for
Xxxxx Xxxxxxxxx
XXXXXX LTD.
By: /s/ Xxxxxx X. XxXxxxx
---------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Attorney-in-Fact
Exhibit A
---------
Plan of Distribution
--------------------
PLAN OF DISTRIBUTION
The common stock being offered by the Selling Shareholders, or by their
respective pledgees, donees, distributees, transferees, or other successors in
interest, will be sold in one or more transactions by the following means of
distribution (or any combination thereof):
o Block trades (which may involve crosses) in which the broker or
dealer so engaged will attempt to sell the common stock as agent
but may position and resell a portion of the block as principal to
facilitate the transaction.
o Purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus.
o Exchange distributions and/or secondary distributions in
accordance with the rules of the NYSE.
o Ordinary brokerage transactions and transactions in which the
broker solicits purchasers.
o Sales in the over-the-counter market.
o Through short sales of common stock.
o Through the writing of options on common stock.
o Distributions to beneficiaries.
o Privately negotiated transactions.
The Selling Shareholders may from time to time deliver all or a portion
of the shares of common stock offered hereby to cover a short sale or sales or
upon the exercise, settlement or closing of a call equivalent position or a put
equivalent position.
The sale price to the public may be the market price prevailing at the
time of sale, a price related to the prevailing market price or at any other
price as the Selling Shareholders determine from time to time. The Selling
Shareholders shall have the sole and absolute discretion not to accept any
purchase offer or make any sale of common stock if they deem the purchase price
to be unsatisfactory at any particular time.
The Selling Shareholders may also sell the common stock directly to
market makers acting as principals and/or broker-dealers acting as agents for
themselves or their customers. Such market makers and broker-dealers may receive
compensation in the form of discounts, concessions, or commissions from the
Selling Shareholders and/or the purchasers of common stock for whom such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). Market makers and block purchasers purchasing the common
stock will do so for their own account and at their own risk. It is possible
that the Selling Shareholders will attempt to sell shares of common stock in
block transactions to market makers or other purchasers at a price per share
which may be below the then market price. In addition, the Selling Shareholders
or their successors in interest may enter into hedging transactions with
broker-dealers who may engage in short sales of common stock in the course of
hedging the positions they assume with a selling stockholder.
The Selling Shareholders may pledge or grant a security interest in
some or all of the common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the common stock from time to time pursuant to this prospectus or
any amendment to this prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act, amending, if necessary, the list of Selling
Shareholders to include the pledgee, transferee or other successors in interest
as Selling Shareholders under this prospectus. The Selling Shareholders also may
transfer and donate the common stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus. Shares of common
stock that qualify for sale pursuant to Rule 144 may be sold under Rule 144
rather than pursuant to this prospectus.
There can be no assurance that all or any of the common stock offered
hereby will be issued to, or sold by, the Selling Shareholders.
The Selling Shareholders and any broker-dealers that act in connection
with the sale of common stock might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, as amended (the
"Securities Act"), and any commissions received by such broker-dealers and any
profit on the resale of the common stock sold by them while acting as principals
might be deemed to be underwriting discounts or commissions under the Securities
Act. Because Selling Shareholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, the Selling Shareholders will be
subject to the prospectus delivery requirements of the Securities Act, which may
include delivery through the facilities of the NYSE pursuant to Rule 153 under
the Securities Act. We have informed the Selling Shareholders that the
anti-manipulative provisions of Regulation M promulgated under the Exchange Act
of 1934, as amended (the "Exchange Act"), may apply to their sales in the
market. The registration of the common stock under the Securities Act shall not
be deemed an admission by the Selling Shareholders or the Company that the
Selling Shareholders are underwriters for purposes of the Securities Act of any
common stock offered pursuant to this prospectus. In addition, under the
securities laws of some states, the shares of common stock may be sold in these
states only through registered or licensed brokers or dealers.
Under the Exchange Act and the regulations thereunder, any person
engaged in a distribution of the shares of common stock offered by this
prospectus may not simultaneously engage in market making activities with
respect to the common stock during any applicable "cooling off" periods prior to
the commencement of such distribution. In addition, and without limiting the
foregoing, the Selling Shareholders will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder including, without
limitation, Rules 101, 102, 103 and 104, which provisions may limit the timing
of purchases and sales of common stock by the Selling Shareholders.
We will not receive any proceeds from the sale of the common stock
offered by the Selling Shareholders. We will pay all expenses of the
registration of the common stock to the Registration Rights Agreement, estimated
to be $? in total, including, without limitation, Securities and Exchange
Commission filing fees and expenses of compliance with state securities or "blue
sky" laws. We will indemnify the Selling Shareholders against liabilities,
including some liabilities under the Securities Act, in accordance with the
Registration Rights Agreement, or the Selling Shareholders will be entitled to
contribution. We will be indemnified by the Selling Shareholders against civil
liabilities, including liabilities under the Securities Act, that may arise from
any written information furnished to us by the Selling Shareholder for use in
this prospectus, in accordance with the related Registration Rights Agreement,
or we may be entitled to contribution.
Once sold under the shelf registration statement, of which this
prospectus forms a part, the common stock will be freely tradable in the hands
of persons other than our affiliates.
