Exhibit 99.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of August 13, 1997 (this
"Agreement"), is made by and among COMFORCE Corporation, a Delaware corporation
(the "Company"), and the persons or entities named on the signature page hereto
(collectively, the "Investors" and each, an "Investor").
W I T N E S S E T H :
WHEREAS, in connection with the Agreement and Plan of Merger, dated as of
August 13, 1997 by and among the Company, COMFORCE Columbus, Inc., a New York
Corporation and wholly-owned Subsidiary of the Company and Uniforce Services,
Inc., a New York corporation ("Uniforce") (the "Merger Agreement"), the Company
acquired all of the outstanding capital stock of Uniforce in return for a
combination of cash and shares of Common Stock, $.01 par value, of the Company
(the "Common Stock"); and
WHEREAS, the Investors are significant shareholders of Uniforce and, upon
the completion of the transactions contemplated by the Merger Agreement, will
receive certain shares of Common Stock pursuant to the terms of the Merger
Agreement (all such shares of Common Stock so received by the Investor
hereinafter referred to as the "Shares"); and
WHEREAS, as an inducement and as a condition to entering into the Merger
Agreement, the Company required that the Investors agree to enter into a certain
Stockholders Agreement, of even date with the Merger Agreement, pursuant to
which the Investors agreed to tender their shares of capital stock of Uniforce
to the Company ( the "Stockholders Agreement"); and
WHEREAS, to induce the Investors to execute and deliver the Stockholders
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 "Securities
Act"), and applicable state securities laws with respect to the Shares;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors
hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Investor" means any Investor and any transferee or assignee who
agrees to become bound by the provisions of this Agreement in accordance
with Section 9 hereof.
(b) "register," "registered," and "registration" refer to a
registration effected by preparing and filing a Registration Statement or
Statements in compliance with the Securities Act on such appropriate
registration form promulgated by the Commission as shall be selected by the
Company, and, when requested by any Investor pursuant to Section 2(b)
hereof, shall (A) be reasonably acceptable to the holders of a majority of
the Registrable Securities to which such registration relates, and (B)
shall permit the disposition of Registrable Securities in accordance with
the intended method or methods specified in the Investor's request for such
registration, and the declaration or ordering of effectiveness of such
Registration Statement by the United States Securities and Exchange
Commission ("SEC").
(c) "Registrable Securities" means the Shares.
(d) "Registration Statement" means a registration statement under the
Securities Act registering securities of the Company.
2. Registration.
(a) Piggy-Back Registrations. If after the Effective Time (as defined in
the Merger Agreement) the Company hereafter determines to prepare and file with
the SEC a Registration Statement relating to an offering for its own account or
the account of others under the Securities Act any of its equity securities,
other than any underwritten public offering, and other than on Form S-4 or Form
S-8 or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans, the Company shall send to each Investor, who is entitled to registration
rights under this Section 2(a) written notice of such determination and, if
within ten (10) days after receipt of such notice, such Investor shall so
request in writing, the Company shall agree to include in such Registration
Statement all or any part of the Registrable Securities such Investor requests
to be registered. The obligations of the Company under this Section 2(a) may be
waived by Investors holding a majority in interest of the Registrable Securities
and shall expire (i) after the Company has afforded the opportunity for the
Investors to exercise registration rights under this Section 2(a) for two
registrations; or (ii) when all of the Registrable Securities held by any
Investor may be sold by such Investor under Rule 144 under the Securities Act
("Rule 144") within any three-month period.
(b) Demand Registration. If the Company has not afforded the Investors at
least one opportunity to register the Registerable Securities pursuant to
Section 2(a) above within one (1) year after the Effective Time, any Investor
holding a majority of the Registrable Securities may thereafter notify the
Company in writing that it intends to offer or cause to be offered for public
sale Registrable Securities held by such Investor, and the Company shall cause
such of the Registrable Securities as may be requested by any Investor to be
registered, on one occasion only, under the Securities Act and applicable state
laws as expeditiously as possible. Once the right for registration of any
Registrable Securities under this Section 2(b) has been exercised by any
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Investor, the Company shall prepare and file a Registration Statement covering
such Registrable Securities with the SEC within thirty (30) days of the exercise
of such registration right.
(c) If any offering pursuant to a Registration Statement pursuant to
Section 2(b) hereof involves (at the Company's election) an underwritten
offering, the Investors who hold the Registrable Securities to be included in
such underwriting shall pay all underwriting discounts and commissions and other
fees and expenses of any investment banker or bankers and manager or managers
selected by the Company (other than fees and expenses relating to registration
of Registrable Securities under federal or state securities laws which are
payable by the Company pursuant to Section 5 hereof) with respect to their
Registrable Securities.
3. Obligations of the Company. In connection with the registration of the
Registrable Securities, the Company shall:
(a) subject to the conditions set forth in Section 4(a) below, prepare
promptly and file with the SEC promptly (but in no event later than 30
days) after a request in accordance with Section 2(b) hereof a Registration
Statement or Statements with respect to all Registrable Securities to be
included therein, and thereafter use its reasonable best efforts to cause
the Registration Statement to become effective as soon as reasonably
possible after such filing. If such Registration Statement is filed
pursuant to Rule 415, the Company shall keep the Registration Statement
effective pursuant to Rule 415 at all times until such date as is two (2)
years after the date such Registration Statement is first ordered effective
by the SEC; provided, however, each Investor may notify the Company in
writing that it wishes to exclude all or a portion of its Registrable
Securities from such Registration Statement; provided further, however,
that if at any time the Investors shall be entitled to sell all Registrable
Securities held by them pursuant to Rule 144 promulgated under the
Securities Act or any other similar rule or regulation of the SEC that may
at any time permit the Investors to sell securities of the Company to the
public without registration and without imposing restrictions arising under
the federal securities laws on the purchases thereof in a period of three
consecutive months, then the Company shall, so long as it meets the current
public information requirements of Rule 144, thereafter no longer be
required to maintain the registration of Registrable Securities pursuant to
this Agreement. In any case, the Registration Statement (including any
amendments or supplements thereto and prospectuses contained therein) filed
by the Company 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 light of the circumstances in which they
were made, not misleading;
(b) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration Statement
and the prospectus used in connection with the Registration Statement as
may be necessary to keep the Registration Statement effective and comply
with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities of the Company covered by the Registration
Statement until the first to occur of the date which is three (3) years
after the Registration Statement is declared effective by the SEC or such
time as all of such Registrable Securities have been disposed of in
accordance
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with the intended methods of disposition by the seller or sellers thereof
as set forth in the Registration Statement;
(c) furnish to each Investor whose Registrable Securities are included
in the Registration Statement, such number of copies of a prospectus,
including a preliminary prospectus, and all amendments and supplements
thereto and such other documents as such Investor may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by
such Investor;
(d) use reasonable best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such
other securities or blue sky laws of such jurisdictions as the Investors
who hold a majority in interest of the Registrable Securities being offered
reasonably request, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements, (iii)
take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times until such date as is the earlier
of three years after the date such Registration Statement is first ordered
effective by the SEC or is three years after the Investor acquired the
Shares 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 (I) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (II) subject itself to general taxation in any such
jurisdiction, (III) file a general consent to service of process in any
such jurisdiction, (IV) provide any undertakings that cause more than
nominal expense or burden to the Company or (V) make any change in its
charter or by-laws, which in each case the Board of Directors of the
Company determines to be contrary to the best interests of the Company and
its stockholders;
(e) as promptly as practicable after becoming aware of such event,
notify each Investor who holds Registrable Securities being sold pursuant
to such registration of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and use its reasonable best
efforts promptly to prepare a supplement or amendment to the Registration
Statement to correct such untrue statement or omission, and deliver a
number of copies of such supplement or amendment to each Investor as such
Investor may reasonably request;
(f) as promptly as practicable after becoming aware of such event,
notify each Investor who holds Registrable Securities being sold pursuant
to such registration (or, in the event of an underwritten offering, the
managing underwriters) of the issuance by the SEC of any stop order or
other suspension of effectiveness of the Registration Statement;
(g) to the extent reasonably deemed necessary, permit a single firm of
counsel designated as selling stockholders' counsel by the Investors who
hold a majority in interest of the
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Registrable Securities being sold pursuant to such registration to review
the Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to their filing with the SEC, and shall not
file any document in a form to which such counsel reasonably objects;
(h) make generally available to its security holders as soon as
practical, but not later than ninety (90) days after the close of the
period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the Securities Act) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the date of the Registration Statement;
(i) make available for inspection by any Investor whose Registrable
Securities are being sold pursuant to such registration, any underwriter
participating in any disposition pursuant to the Registration Statement,
and any attorney, accountant or other agent retained by any such Investor
or underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable each Inspector to exercise its due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
information which any Inspector may reasonably request for purposes of such
due diligence; provided, however, that each Inspector shall hold in
confidence and shall not make any disclosure (except to an Investor) of any
Record or other information which the Company determines in good faith to
be confidential, and of which determination the Inspectors are so notified,
unless (i) the disclosure of such Records is necessary to avoid or correct
a misstatement or omission in any Registration Statement, (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court or government body of competent jurisdiction or (iii) the information
in such Records has been made generally available to the public other than
by disclosure in violation of this or any other agreement. The Company
shall not be required to disclose any confidential information in such
Records to any Inspector until and unless such Inspector shall have entered
into confidentiality agreements (in form and substance satisfactory to the
Company) with the Company with respect thereto, substantially in the form
of this Section 3(i). Each Investor agrees that it shall, upon learning
that disclosure of such Records is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt notice
to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, the Records deemed confidential.
(j) use its best efforts either to (i) cause all the Registrable
Securities covered by the Registration Statement to be listed on a national
securities exchange and on each additional national securities exchange on
which similar securities issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under the
rules of such exchange or (ii) secure designation of all the Registrable
Securities covered by the Registration Statement as a National Association
of Securities Dealers Automated Quotations System ("Nasdaq") "national
market system security" within the meaning of Rule 11Aa2-1 of the SEC under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the quotation of the Registrable Securities on the Nasdaq National Market
System or, if, despite the Company's best
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efforts to satisfy the preceding clause (i) or (ii), the Company is
unsuccessful in satisfying the preceding clause (i) or (ii), to secure
listing on a national securities exchange or Nasdaq authorization and
quotation for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register with the National Association of Securities Dealers, Inc. ("NASD")
as such with respect to such Registrable Securities;
(k) provide a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of
the Registration Statement;
(l) cooperate with the Investors who hold Registrable Securities being
sold and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing Registrable Securities to be sold
pursuant to the denominations or amounts as the case may be, and registered
in such names as the managing underwriter or underwriters, if any, or the
Investors may reasonably request; and, within five business days after a
Registration Statement which includes Registrable Securities is ordered
effective by the SEC, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) instructions to the
transfer agent to issue new stock certificates without a legend and an
opinion of such counsel that the shares have been registered; and
(m) take all other reasonable actions necessary to expedite and
facilitate disposition by the Investors of the Registrable Securities
pursuant to the Registration Statement;
4. Obligations of the Investors. In connection with the registration of the
Registrable Securities, the Investors shall have the following obligations:
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to each
Investor that such Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended
method of disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of the Registrable
Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. At least fifteen (15)
days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Investor of the information the
Company requires from each such Investor (the "Requested Information") if
such Investor elects to have any of such Investor's Registrable Securities
included in the Registration Statement. If within five (5) business days
prior to the filing date the Company has not received the Requested
Information from an Investor (a "Non-Responsive Investor"), then the
Company may file the Registration Statement without including Registrable
Securities of such Non-Responsive Investor;
(b) Each Investor by such Investor's acceptance of the Registrable
Securities agrees to cooperate with the Company as reasonably requested by
the Company in connection with
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the preparation and filing of the Registration Statement hereunder, unless
such Investor has notified the Company in writing of such Investor's
election to exclude all of such Investor's Registrable Securities from the
Registration Statement;
(c) With regard to a demand registration pursuant to Section 2(b)
hereof, in the event the Company determines to engage the services of an
underwriter, each Investor agrees to enter into and perform such Investor's
obligations under an underwriting agreement, in usual and customary form,
including, without limitation, customary indemnification and contribution
obligations, with the managing underwriter of such offering and take such
other actions as are reasonably required in order to expedite or facilitate
the disposition of the Registrable Securities, unless such Investor has
notified the Company in writing of such Investor's election to exclude all
of such Investor's Registrable Securities from the Registration Statement;
(d) Each Investor agrees that, upon receipt of any notice (a "Stop
Notice") from the Company (i) of the happening of any event of the kind
described in Section 3(e) or 3(f) or (ii) that the Board of Directors of
the Company has determined, in its good faith reasonable judgment, that the
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities would materially interfere
with, or require the premature disclosure of, any financing, acquisition or
reorganization involving the Company or any of its subsidiaries, or
otherwise would require premature disclosure of any other material
nonpublic information as to which the Company has a good faith, bona fide
business purpose for maintaining its confidentiality (the "Board of
Directors Determination"), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until such Investor's
receipt of a copy of a supplemented or amended prospectus or written notice
from the Company that the reason for the Board of Directors Determination
has lapsed and, if so directed by the Company, such Investor shall deliver
to the Company (at the expense of the Company) or destroy (and deliver to
the Company a certificate of destruction) all copies in such Investor's
possession, of the prospectus covering such Registrable Securities current
at the time of receipt of the Stop Notice; provided, however, that any
restriction on trading resulting from a Board of Directors Determination
shall be limited to a maximum of thirty (30) days, and, further, that the
Company shall provide the Investors with a written Stop Notice within two
business days of the Company's determination of such restriction;
(e) No Investor may participate in any underwritten registration
hereunder unless such Investor (i) agrees to sell such Investor's
Registrable Securities on the basis provided in any underwriting
arrangements approved by the Investors entitled hereunder to approve such
arrangements, (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and
(iii) agrees to pay its pro rata share of all underwriting discounts and
commissions and other fees and expenses of investment bankers and any
manager or managers of such underwriting and legal expenses of the
underwriter applicable with respect to its Registrable Securities, in each
case to the extent not payable by the Company pursuant to the terms of this
Agreement.
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5. Expenses of Registration. All expenses (other than underwriting
discounts and commissions and other fees and expenses of investment bankers and
other than brokerage commissions) incurred in connection with registrations,
filings or qualifications pursuant to Section 3, including, without limitation,
all registration, listing and qualifications fees, printers and accounting fees
and the fees and disbursements of counsel for the Company and counsel selected
by the Investors pursuant to Section 3(g) hereof, shall be borne by the Company;
provided, however, that the Investors shall bear the fees and out-of-pocket
expenses of the legal counsel selected by the Investors pursuant to Section 3(g)
hereof that exceed $10,000 in the aggregate.
6. Indemnification. In the event any Registrable Securities are included in
a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Investor who holds such Registrable Securities, the
directors, if any, of such Investor, the officers, if any, of such
Investor, each person, if any, who controls any Investor within the meaning
of the Securities Act or the Exchange Act, any underwriter (as defined in
the Securities Act) for the Investors, the directors, if any, of such
underwriter and the officers, if any, of such underwriter, and each person,
if any, who controls any such underwriter within the meaning of the
Securities Act or the Exchange Act (each, an "Indemnified Person"), against
any losses, claims, damages, expenses or liabilities (joint or several)
(collectively "Claims") to which any of them become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such Claims (or
actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations in the Registration Statement, or any
post-effective amendment thereof, or any prospectus included therein: (i)
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment
thereof or the omission or alleged omission to state therein 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 preliminary prospectus if
used prior to the effective date of such 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 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
Securities Act, the Exchange Act or any state securities law or any rule or
regulation (the matters in the foregoing clauses (i) through (iv) being,
collectively, "Violations"). Subject to the restrictions set forth in
Section 6 (d) with respect to the number of legal counsel, the Company
shall reimburse the Investors and each such underwriter or controlling
person, 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 arising out of or based
upon a Violation which occurs in reliance upon and in conformity with
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information furnished to the Company by any Indemnified Person or
underwriter for such Indemnified Person expressly for use in connection
with the preparation of the Registration Statement or any such amendment
thereof or supplement thereto, if such prospectus was timely made available
by the Company pursuant to Section 3(c) hereof; (II) with respect to any
preliminary prospectus shall not inure to the benefit of any such person
from whom the person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected in the
prospectus, as then amended or supplemented, if such prospectus was timely
made available by the Company pursuant to Section 3(c) hereof; 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. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnified Persons and shall survive the transfer of the
Registrable Securities by the Investors pursuant to Section 9.
(b) In connection with any Registration Statement in which an Investor
is participating, each such Investor agrees to indemnify and hold harmless,
to the same extent and in the same manner set forth in Section 6(a), the
Company, each of its directors, each of its officers who signs the
Registration Statement, each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act, any
underwriter and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any person
who controls such stockholder or underwriter within the meaning of the
Securities Act or the Exchange Act (collectively and together with an
Indemnified Person, an "Indemnified Party"), against any Claim to which any
of them may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs (i) in reliance upon and in conformity with information
furnished to the Company by such Investor expressly for use in connection
with such Registration Statement or (ii) the Investor's violation of Rules
10-b-6 or 10-b-7 under the Exchange Act; and such Investor will promptly
reimburse any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Claim; provided,
however, that the indemnity agreement contained in this Section 6(b) shall
not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of such Investor, which consent
shall not be unreasonably withheld. 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 Investors pursuant to Section 9. 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) The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in any
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distribution, to the same extent as provided above, with respect to
information such persons so furnished in writing by such persons expressly
for inclusion in the Registration Statement.
(d) Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to made against any
indemnifying party under this Section 6, deliver to the indemnifying party
a written notice of the commencement thereof and this 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 parties; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its
own counsel, with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the 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 other party represented by such
counsel in such proceeding. The Company shall pay for only one separate
legal counsel for the Investors; such legal counsel shall be selected by
the Investors holding a majority in interest of the Registrable Securities.
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. The
indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as such expense, loss, damage or liability is incurred and is due
and payable.
7. Contribution. To the extent any indemnification provided for herein is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that
(a) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (b) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation and (c) contribution by any
seller of Registrable Securities shall be limited in amount to the net amount of
proceeds received by such seller from the sale of such Registrable Securities.
8. Reports under Exchange Act. With a view to making available to the
Investors the benefits of Rule 144 or any other similar rule or regulation of
the SEC that may at any time permit the Investors to sell securities of the
Company to the public without registration, until such time as the Investors
have sold all the Registrable Securities pursuant to a Registration Statement or
Rule 144, the Company agrees to:
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(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 Securities Act and the Exchange
Act; and
(c) furnish to each Investor so long as such Investor owns Registrable
Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144, the
Securities Act and the Exchange 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 Investors to sell such securities pursuant to Rule
144 without registration.
9. Assignment of the Registration Rights. The rights to have the Company
register Registrable Securities pursuant to this Agreement shall be
automatically assigned by the Investors to transferees or assignees of all or
any portion of such securities only if: (a) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (i) the
name and address of such transferee or assignee and (ii) the securities with
respect to which such registration rights are being transferred or assigned, (b)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws, and (c) at or before the time the
Company received the written notice contemplated by clause (a) of this sentence
the transferee or assignee agrees in writing with the Company to be bound by all
of the provisions contained herein.
10. Amendment of Registration Rights. Any provision 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 and Investors who hold a majority in interest of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 10 shall be binding upon each Investor and the Company.
11. Miscellaneous.
(a) A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record such Registrable Securities. If
the Company receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Securities, the
Company shall act upon the basis of instructions, notice or election received
from the registered owner of such Registrable Securities.
(b) Notices required or permitted to be given hereunder shall be in writing
and shall be deemed to be sufficiently given when personally delivered or when
sent by registered mail, return receipt requested, addressed (i) if to the
Company, to COMFORCE Corporation, 2001 Marcus Avenue, Lake Success, New York,
11042, Attention: Chief Executive Officer; (ii) if to the Investor, at such
address as such Investor shall have provided in writing to the Company,
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or at such other address as each such party furnishes by notice given in
accordance with this Section 11(b), and shall be effective, when personally
delivered, upon receipt; when delivered by facsimile transmission, upon receipt
of confirmation of transmission; and, when sent by certified mail, four business
days after deposit with the United States Postal Service.
(c) 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.
(d) This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of New York applicable to the agreements
made and to be performed entirely within such state, without giving effect to
rules governing the conflict of laws. In the event that any provision of this
Agreement is invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision
hereof.
(e) This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings among
the parties hereto with respect to the subject matter hereof.
(f) Subject to the requirements of Section 9 hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto.
(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in the Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(i) This Agreement may be executed in two or more 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 telephone line facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of day and
year first above written.
COMFORCE CORPORATION
By /s/ James L. Paterek
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Title Chairman
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JOHN FANNING
/s/ John Fanning
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FANNING ASSET PARTNERS, L.P.,
a Georgia limited partnership
By /s/ John Fanning
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Name John Fanning
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Title
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