Exhibit 10(c)
REGISTRATION RIGHTS AGREEMENT
dated as of May 11, 2000
by and among
▇▇▇▇▇▇▇.▇▇▇, LTD.
and
THE SHAREHOLDERS LISTED ON SCHEDULE I HERETO
TABLE OF CONTENTS
THIS TABLE OF CONTENTS IS NOT PART OF THE REGISTRATION RIGHTS
AGREEMENT TO WHICH IT IS ATTACHED BUT IS INSERTED FOR CONVENIENCE ONLY.
Page
NO.
1. Registration of Registrable Securities.................................1
(a) Filing of Shelf Registration Statement............................1
(b) Registration Expenses.............................................1
2. Registration Procedures................................................1
3. Holdback Agreement.....................................................4
4. Indemnification........................................................4
(a) Indemnification by the Company....................................4
(b) Indemnification by the Shareholders...............................5
(c) Notices of Claims, etc............................................5
(d) Contribution......................................................6
(e) Other Indemnification.............................................7
(f) Indemnification Payments..........................................7
5. Covenants Relating to Rule 144.........................................7
6. Other Registration Rights..............................................7
(a) No Existing Agreements............................................7
(b) Future Agreements.................................................7
(c) Resumix Agreements................................................8
7. Definitions............................................................8
8. Miscellaneous.........................................................10
(a) Notices..........................................................10
(b) Entire Agreement.................................................10
(c) Amendment........................................................11
(d) Waiver...........................................................11
(e) No Third Party Beneficiary.......................................11
(f) No Assignment; Binding Effect....................................11
(g) Headings.........................................................11
(h) Invalid Provisions...............................................11
(i) Remedies; Legal Expenses.........................................12
(j) Governing Law....................................................12
(k) Counterparts.....................................................12
This REGISTRATION RIGHTS AGREEMENT dated as of May 11, 2000 is made
and entered by and among ▇▇▇▇▇▇▇.▇▇▇, Ltd., a Delaware corporation (the
"COMPANY"), and the shareholders listed on SCHEDULE I hereto (collectively, the
"SHAREHOLDERS" and each individually, a "SHAREHOLDER"). Capitalized terms not
otherwise defined herein have the meanings set forth in SECTION 7.
WHEREAS, the Company, Resumix Acquisition Corp., a Delaware
corporation wholly owned by the Company ("RAC"), Resumix, Inc., a Delaware
corporation ("RESUMIX"), and the Shareholders have entered into an Agreement and
Plan of Merger dated as of April 25, 2000, (the "MERGER AGREEMENT"), pursuant to
which, on the date hereof, RAC is merging with and into Resumix and Resumix is
becoming a wholly-owned subsidiary of the Company; and
WHEREAS, as a condition to the Shareholders' willingness to enter
into the Merger Agreement, the Company has agreed to enter into this
Registration Rights Agreement providing for the Company's registration for sale
of Registrable Securities to be acquired by the Shareholders pursuant to the
Merger Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Registration Rights Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. REGISTRATION OF REGISTRABLE SECURITIES. (a) FILING OF SHELF
REGISTRATION STATEMENT. The Company shall prepare and file with the Commission,
on or prior to August 31, 2000, and use its reasonable best efforts to cause to
be declared effective as soon as practicable after the date of the filing, a
registration statement on Form S-3 (or any other appropriate form if a
registration of the Registrable Securities for resale by the Shareholders on
Form S-3 is not available) under the Securities Act registering the Registrable
Securities. Such registration statement shall provide for the offering and sale
of such Registrable Securities to or through dealers, directly to one or more
other purchasers, through brokers and agents or through a combination of any
such methods of sale, including but not limited to a bulk sale to a brokerage
firm, but not pursuant to an underwritten Public Offering.
(b) REGISTRATION EXPENSES. The Company will pay all Registration
Expenses incurred in connection with a registration of Registrable Securities
pursuant to PARAGRAPH (A) above.
2. REGISTRATION PROCEDURES. In connection with its obligations
under SECTION 1 to effect the registration and sale of the Registrable
Securities, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the shelf registration statement filed pursuant to SECTION
1 and any prospectus used in connection therewith as may be necessary to
maintain the effectiveness of such registration statement and to comply
with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such registration statement, in
accordance with the intended methods of disposition thereof on a
continuous basis in accordance with Rule 415 promulgated under the
Securities Act, until
the earlier of (i) two (2) years following the date of the Closing (plus a
number of days equal to any period during which Shareholders are not
permitted to engage in sales of Registrable Securities pursuant to SECTION
3) and (ii) such time as there are no shares of Common Stock outstanding
which constitute Registrable Securities;
(b) promptly notify the Shareholders:
i. when such registration statement or any prospectus used
in connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become
effective;
ii. of any written request by the Commission for amendments
or supplements to such registration statement or prospectus;
iii. of the notification to the Company by the Commission of
its initiation of any proceeding with respect to the issuance by the
Commission of, or of the issuance by the Commission of, any stop
order suspending the effectiveness of such registration statement;
and
iv. of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the applicable securities or blue sky laws
of any jurisdiction;
(c) furnish to the Shareholders such number of conformed copies of
such registration statement and of each amendment and supplement thereto
(in each case including all exhibits and documents incorporated by
reference), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424
promulgated under the Securities Act, and such other documents, as the
Shareholders may reasonably request to facilitate the disposition of the
Registrable Securities covered by such registration statement;
(d) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as the
Shareholders shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable the Shareholders to consummate the disposition in such
jurisdictions of their Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be
required (i) to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of this
paragraph be obligated to be so qualified, (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to general service
of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental
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agencies or authorities as may be necessary to enable the Shareholders to
consummate the disposition of such Registrable Securities;
(f) promptly notify the Shareholders, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which any
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
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, and at the request of the Shareholders promptly
prepare and furnish to the Shareholders a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and the effectiveness of such
registration statement shall be extended equitably to permit complete
disposition of the Registrable Securities;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its securityholders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not more
than eighteen (18) months, beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder;
(h) make available for inspection by the Shareholders and any
attorney, accountant or other agent retained by the Shareholders
(collectively, the "INSPECTORS"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively,
the "RECORDS") as shall be reasonably necessary to enable them to exercise
their due diligence responsibility and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such Inspector in connection with such registration statement;
PROVIDED that records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public;
(i) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(j) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be listed, upon
official notice of issuance, on any securities exchange on which any of
the securities of the same class as the Registrable Securities are then
listed.
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In the event of the issuance of any stop order suspending the
effectiveness of the registration statement which includes Registrable
Securities, or any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Registrable Securities
included in such registration statement for sale in any jurisdiction, the
Company will use its reasonable best efforts to promptly obtain the withdrawal
of such order.
The Company may require the Shareholders to furnish the Company with
such information and affidavits regarding the Shareholders and the distribution
of their Registrable Securities as the Company may from time to time reasonably
request in writing in connection with such registration.
The Shareholders agree, by acquisition of such Registrable
Securities, that upon receipt of any notice from the Company of the happening of
any event of the kind described in PARAGRAPH (F), the Shareholders will
forthwith discontinue their disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until their
receipt of the copies of the supplemented or amended prospectus contemplated by
PARAGRAPH (F) and, if so directed by the Company, will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies, then in
their possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
3. HOLDBACK AGREEMENT. In the case of an underwritten Public
Offering by the Company in which shares of Common Stock (or securities
convertible into or exercisable or exchangeable for shares of Common Stock) are
being offered for the account of the Company and each of the Company's officers,
directors and 5% stockholders agree to identical agreements as set forth in this
Section 3 with respect to such Public Offering, unless the Managing Underwriter
otherwise agrees, each Shareholder, by acquisition of its Registrable
Securities, agrees not to effect any public sale or distribution (including a
sale under Rule 144) of such securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven (7) days prior
to and the ninety (90) days after the effective date of any registration
statement filed by the Company in connection with such Public Offering (or for
such shorter period of time as is sufficient and appropriate, in the opinion of
the Managing Underwriter, in order to complete the sale and distribution of the
securities included in such registration); PROVIDED that the restrictions
contained in this Section shall not apply (i) prior to the later of (A) December
31, 2000 or (B) the date 90 days following the date that the registration
statement which registers the Registrable Securities is declared effective by
the Commission (extended by any period referred to in SECTION 2(F) in which the
Shareholders are restricted from selling) or (ii) to any Shareholder owning
Registrable Securities representing less than 1% of the outstanding shares of
Common Stock.
4. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. The
Company shall, to the full extent permitted by law, indemnify and hold harmless
each Shareholder, its officers, directors, partners and affiliates, and each
other Person, if any, who controls such Shareholder within the meaning of the
Securities Act (each an "INDEMNIFIED PERSON"), against any losses, claims,
damages, expenses or liabilities, joint or several (together, "LOSSES"), to
which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise
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out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the shelf registration statement filed pursuant to
SECTION 1(A), any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading, and the
Company will reimburse such Indemnified Person for all reasonable legal or any
other expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such Loss (or action or proceeding in respect
thereof); PROVIDED that the Company shall not be liable in any such case to any
Indemnified Person to the extent that any such Loss (or action or proceeding in
respect thereof) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Indemnified Person
specifically for use in the preparation thereof. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Indemnified Person, and shall survive the transfer of such securities by the
Shareholders.
(b) INDEMNIFICATION BY THE SHAREHOLDERS. Each Shareholder, as a
condition to including Registrable Securities in the shelf registration
statement filed pursuant to SECTION 1(A), shall, to the full extent permitted by
law, indemnify and hold harmless the Company, its directors and officers, and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, against any Losses to which the Company or any such director or
officer or controlling Person may become subject under the Securities Act or
otherwise, insofar as such Losses (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such Shareholder
specifically for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; PROVIDED that no Shareholder shall be liable under this paragraph
for any amount in excess of the net proceeds to such Shareholder of the
Registrable Securities sold by it. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling Person and shall survive the transfer
of such securities by any such Shareholder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding PARAGRAPH (A) OR (B) of this
SECTION 4, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, PROVIDED that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of
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its obligations under the preceding paragraphs of this SECTION 4, except to the
extent that the Indemnifying Party is actually prejudiced by such failure to
give notice. In case any such action is brought against an Indemnified Party,
the Indemnifying Party shall be entitled to participate in and to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Party,
and after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying Party shall not be
liable to such Indemnified Party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof; PROVIDED that the
Indemnified Party may participate in such defense at the Indemnified Party's
expense. If (i) the Indemnifying Party is not entitled to, or elects not to,
assume the defense of a claim, (ii) the Indemnifying Party fails to take
reasonable steps necessary to defend diligently the claim within twenty (20)
days after receiving notice from the Indemnified Party that the Indemnified
Party believes it has failed to do so, (iii) the Indemnified Party who is the
defendant in any action which is also brought against the Indemnifying Party
reasonably shall have concluded that there shall be one or more legal defenses
available to the Indemnified Party which are not available to the Indemnifying
Party, or (iv) representation by both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, the
Indemnified Party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all Indemnified
Parties in each jurisdiction except to the extent any Indemnified Party
reasonably shall have concluded that there may be legal defenses available to
such Indemnified Party which are not available to other Indemnified Parties or
to the extent representation of all Indemnified Parties by the same counsel is
otherwise inappropriate under applicable standards of professional conduct) and
the Indemnifying Party shall be liable for any reasonable expenses therefor. No
Indemnifying Party shall consent to entry of any judgment or enter into any
settlement without the consent of the Indemnified Party, which consent will not
be unreasonably withheld or delayed. No Indemnifying Party shall be subject to
any liability for any settlement made without its consent, which consent shall
not be unreasonably withheld or delayed. The indemnification provided for under
this Registration Rights Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Party or
any officer, director or controlling Person of such Indemnified Party and will
survive the transfer of securities.
(d) CONTRIBUTION. If the indemnity and reimbursement obligation
provided for in any paragraph of this SECTION 4 is unavailable or insufficient
to hold harmless an Indemnified Party in respect of any Losses (or actions or
proceedings in respect thereof) referred to therein, then the Indemnifying Party
shall contribute to the amount paid or payable by the Indemnified Party as a
result of such Losses (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and the Indemnified Party on the other hand in connection
with statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations, including the relative benefits received in
connection with the transaction. 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 the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this paragraph were to be determined by PRO RATA allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to in the first sentence of
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this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph. Notwithstanding anything to the contrary contained
herein, no Shareholder shall be liable under this paragraph for any amount in
excess of the net proceeds to such Shareholder of the Registrable Securities
sold by it.
No Indemnified Party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) OTHER INDEMNIFICATION. Indemnification similar to that
specified in the preceding paragraphs of this SECTION 4 (with appropriate
modifications) shall be given by the Company and the Shareholders with respect
to any required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other than the
Securities Act. The provisions of this SECTION 4 shall be in addition to any
other rights to indemnification or contribution which an Indemnified Party may
have pursuant to law, equity, contract or otherwise.
(f) INDEMNIFICATION PAYMENTS. The indemnification required by this
SECTION 4 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or Losses
are incurred.
5. COVENANTS RELATING TO RULE 144. The Company will, for a period
of up to two (2) years following the date of the Closing, file reports in
compliance with the Exchange Act, will comply with all rules and regulations of
the Commission applicable in connection with the use of Rule 144 and will take
such other actions and furnish the Shareholders with such other information as
the Shareholders may reasonably request to the extent necessary to permit the
Shareholders to sell the Registrable Securities pursuant to Rule 144.
6. OTHER REGISTRATION RIGHTS. (a) NO EXISTING AGREEMENTS. The
Company represents and warrants to the Shareholders that there is not in effect
on the date hereof any agreement by the Company pursuant to which any holders of
securities of the Company have a right to cause the Company to register or
qualify such securities under the Securities Act or any securities or blue sky
laws of any jurisdiction that would conflict or be inconsistent with any
provision of this Registration Rights Agreement.
(b) FUTURE AGREEMENTS. The Company shall not hereafter agree with
the holders of any securities issued or to be issued by the Company to register
or qualify such securities under the Securities Act or any securities or blue
sky laws of any jurisdiction that would conflict or be inconsistent with any
provision of this Registration Rights Agreement. Nothing contained in this
Registration Rights Agreement is meant to explicitly or implicitly restrict the
Company from granting to any such holder priority with respect to registration
rights over any shares issued to the Shareholders.
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(c) RESUMIX AGREEMENTS. The Shareholders represent and warrant to
the Company that they have terminated any and all agreements relating to the
registration of their shares of Resumix capital stock.
7. DEFINITIONS. (a) Except as otherwise specifically indicated,
the following terms will have the following meanings for all purposes of this
Registration Rights Agreement:
"BUSINESS DAY" means a day other than Saturday, Sunday or any other
day on which banks located in the State of New York are authorized or obligated
to close.
"CLOSING" has the meaning ascribed to it in the Merger Agreement.
"COMMISSION" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"COMMON STOCK" means shares of common stock, par value $.01 per
share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"INDEMNIFIED PARTY" means any party referred to in SECTION 4 as
being entitled to indemnity in accordance with such Section.
"INDEMNIFYING PARTY" means a party obligated to provide indemnity in
accordance with SECTION 4.
"INSPECTORS" has the meaning ascribed to it in SECTION 2(I).
"LOSSES" has the meaning ascribed to it in SECTION 4(A).
"MANAGING UNDERWRITER" means, with respect to any Public Offering,
the underwriter or underwriters managing such Public Offering.
"MERGER AGREEMENT" has the meaning ascribed to it in the preamble.
"NASD" means the National Association of Securities Dealers.
"PERSON" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union or association.
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"PUBLIC OFFERING" means any offering of Common Stock (or securities
convertible into or exercisable or exchangeable for shares of Common Stock) to
the public, either on behalf of the Company or any of its securityholders,
pursuant to an effective registration statement under the Securities Act (other
than on Forms S-4 or S-8 or any successor forms thereto).
"RECORDS" has the meaning ascribed to it in SECTION 2(I).
"REGISTRABLE SECURITIES" means (i) the shares of Common Stock
received by the Shareholders pursuant to ARTICLE II of the Merger Agreement, and
(ii) any additional shares of Common Stock issued or distributed by way of a
dividend, stock split or other distribution in respect of such shares, or
acquired by way of any rights offering or similar offering made in respect of
such shares. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) they shall have been distributed to the
public pursuant to Rule 144, or (iii) they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with its obligations under this Registration Rights
Agreement to effect the registration of Registrable Securities pursuant to
SECTION 1(A), including, without limitation, all registration, filing,
securities exchange listing and NASD fees, all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of legal counsel retained by the
Company to act for the Company and of the Company's independent public
accountants; BUT EXCLUDING transfer taxes, if any, in respect of Registrable
Securities and the fees and disbursements of any legal counsel, accountant,
Inspector or other representative retained by any Shareholder to act exclusively
for such Shareholder, which shall be payable by the Shareholders.
"REGISTRATION RIGHTS AGREEMENT" means this Registration Rights
Agreement, as the same shall be amended from time to time.
"RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SHAREHOLDERS" has the meaning ascribed to it in the preamble.
(b) Unless the context of this Registration Rights Agreement
otherwise requires, (i) words of any gender include each other gender; (ii)
words using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Registration Rights Agreement;
and (iv) the term "Section" refers to the specified Section of this Registration
Rights Agreement. Whenever this Registration Rights Agreement refers to a number
of days, such number shall refer to calendar days unless Business Days are
specified.
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8. MISCELLANEOUS. (a) NOTICES. All notices, requests and other
communications hereunder must be in writing and will be deemed to have been duly
given only if delivered personally or by facsimile transmission or mailed by
certified or registered mail, return receipt requested, to the parties at the
following addresses or facsimile numbers:
If to the Shareholders, to the addresses
set forth on SCHEDULE I hereto
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: 212-757-3990
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
If to the Company, to:
▇▇▇▇▇▇▇.▇▇▇, Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt if received on a Business
Day during normal business hours, and if not then received, on the next Business
Day, and (iii) if delivered by mail in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(b) ENTIRE AGREEMENT. This Registration Rights Agreement
supersedes all prior discussions and agreements between the parties with respect
to the subject matter hereof, and
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contains the sole and entire agreement between the parties hereto with respect
to the subject matter hereof.
(c) AMENDMENT. This Registration Rights Agreement may be amended,
supplemented or modified only by a written instrument (which may be executed in
any number of counterparts) duly executed by or on behalf of the Company and the
Shareholders.
(d) WAIVER. Any term or condition of this Registration Rights
Agreement may be waived at any time by the party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term or
condition. No waiver by any party of any term or condition of this Registration
Rights Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same term or condition of this Registration Rights
Agreement on any future occasion.
(e) NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Registration Rights Agreement are intended solely for the benefit of each party
hereto and it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person other than any Person entitled to
indemnity under SECTION 4.
(f) NO ASSIGNMENT; BINDING EFFECT. Neither this Registration
Rights Agreement nor any right, interest or obligation hereunder may be assigned
by any party hereto without the prior written consent of the other parties
hereto and any attempt to do so will be void, PROVIDED that each Shareholder may
assign its rights hereunder to such Shareholder's successors, heirs or legal
representatives. Subject to the foregoing, this Registration Rights Agreement is
binding upon, inures to the benefit of and is enforceable by the parties hereto
and their respective successors and assigns.
(g) HEADINGS. The headings used in this Registration Rights
Agreement have been inserted for convenience of reference only and do not define
or limit the provisions hereof.
(h) INVALID PROVISIONS. If any provision of this Registration
Rights Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party hereto
under this Registration Rights Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully severable, (ii) this
Registration Rights Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof and (iii)
the remaining provisions of this Registration Rights Agreement will remain in
full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
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(i) REMEDIES; LEGAL EXPENSES. Except as otherwise expressly
provided for herein, no remedy conferred by any of the specific provisions of
this Registration Rights Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
any party hereto shall not constitute a waiver by any such party of the right to
pursue any other available remedies.
Damages in the event of breach of this Registration Rights Agreement
by a party hereto would be difficult, if not impossible, to ascertain, and it is
therefore agreed that each such party, in addition to and without limiting any
other remedy or right it may have, will have the right to an injunction or other
equitable relief in any court of competent jurisdiction, enjoining any such
breach, and enforcing specifically the terms and provisions hereof and the
Company and the Shareholders each hereby waives any and all defenses it may have
on the ground of lack of jurisdiction or competence of the court to grant such
an injunction or other equitable relief. The existence of this right will not
preclude any such party from pursuing any other rights and remedies at law or in
equity which such party may have.
The parties hereto agree that, in the event that any party to this
Registration Rights Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Registration Rights Agreement by the other party, the
prevailing party in any such action or proceeding shall be entitled to an award
of, and the other party to such action or proceeding shall pay, the reasonable
fees and expenses of legal counsel to the prevailing party.
(j) GOVERNING LAW. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
(k) COUNTERPARTS. This Registration Rights Agreement may be
executed in any number of counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed and delivered by the duly authorized officer of each party hereto as of
the date first above written.
▇▇▇▇▇▇▇.▇▇▇, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
DOUBLE DIAMOND ASSOCIATES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Ciesiniski
Title:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
CERIDIAN CORPORATION
By: /s/ A. ▇▇▇▇ ▇▇▇▇
-------------------------------
Name: A. ▇▇▇▇ ▇▇▇▇
Title: Vice President and Assistant
Secretary
GENERAL ATLANTIC PARTNERS 48, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Member
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GAP COINVESTMENT PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A General Partner
GENERAL ATLANTIC PARTNERS 60, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Member
GAP COINVESTMENT PARTNERS II,
L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A General Partner
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SCHEDULE I
SHAREHOLDERS
Ceridian Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇ ▇▇▇▇
General Atlantic Partners 48, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
GAP Coinvestment Partners, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
General Atlantic Partners 60, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
GAP Coinvestment Partners II, L.P.
c/o General Atlantic Service Corporation
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Double Diamond LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
c/o Resumix, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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