EXHIBIT 4.2
EXHIBIT 1.02-A
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of __________________, 1998, among Work International
Corporation, a Texas corporation ("WORK"), and each person listed on the
signature pages of this Agreement under the caption "Stockholders" (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, pursuant to various acquisition agreements entered into with
WORK (collectively, the "Acquisition Agreements"), each of the Stockholders has
received on the date hereof shares of common stock, par value $.001 per share,
of WORK ("Common Stock"); and
WHEREAS, in order to induce the Stockholders to enter into their
respective Acquisition Agreements, WORK has agreed to provide registration
rights on the terms set forth in this Agreement for the benefit of the
Stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. The following capitalized terms shall have the
meanings assigned to them in this Section 1 or in the parts of this Agreement
referred to below:
Code: the Internal Revenue Code of 1986, as amended, and any successor
thereto.
Commission: the Securities and Exchange Commission, and any successor
thereto.
Demand Registration: as defined in Section 3.
Effective Time: as defined in Section 3.
Exchange Act: the Securities Exchange Act of 1934, as amended, and any
successor thereto, and the rules and regulations thereunder.
Exempt Offering: as defined in Section 2.
Registrable Common: shares of Common Stock that were issued to the
Stockholders pursuant to the Acquisition Agreements, and any additional shares
of Common Stock issued or distributed in respect of any other shares of
Registrable Common by way of a stock dividend or distribution or stock split or
in connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise. For purposes of this Agreement, shares of
Registrable Common will cease to be Registrable Common when and to the extent
that (i) a registration statement covering such shares has been declared
effective under the Securities Act and such shares have been disposed of
pursuant to such effective registration statement, (ii) such shares
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are sold pursuant to Rule 144 or become saleable under Rule 144(k), or (iii)
such shares have been otherwise transferred to a person or entity that is not a
Stockholder, other than pursuant to Section 11.
Registration Notice: as defined in Section 2.
Requesting Holders: as defined in Section 3.
Restricted Period: as defined in Section 3.
Rule 144: Securities Act Rule 144 (or any similar or successor
provision under the Securities Act).
Securities Act: the Securities Act of 1933, as amended, and any
successor thereto, and the rules and regulations thereunder.
Selling Stockholder: as defined in Section 12.
2. Piggyback Registration Rights. At any time after the first
anniversary of the date of this Agreement and before the third anniversary of
the date of this Agreement, whenever WORK proposes to register any Common Stock
for its own account under the Securities Act for a public offering for cash,
other than a registration relating to the offering or issuance of shares in
connection with (i) employee compensation or benefit plans or (ii) one or more
acquisition transactions under a Registration Statement on Form S-4 or Form S-1
under the Securities Act (or a successor to Form S-4 or Form S-1) (any such
offering or issuance being an "Exempt Offering"), WORK will give each
Stockholder written notice of its intent to do so (a "Registration Notice") at
least 20 days prior to the filing of the related registration statement with the
Commission. Such notice shall specify the approximate date on which WORK
proposes to file such registration statement and shall contain a statement that
the Stockholders are entitled to participate in such offering and shall set
forth the number of shares of Registrable Common that represents the best
estimate of the lead managing underwriter (or if not known or applicable, WORK)
that will be available for sale by the holders of Registrable Common in the
proposed offering. If WORK shall have delivered a Registration Notice, each
Stockholder shall be entitled to participate on the same terms and conditions as
WORK in the public offering to which the Registration Notice relates and to
offer and sell shares of Registrable Common therein only to the extent provided
in this Section 2. Each Stockholder desiring to participate in such offering
shall notify WORK no later than ten days following receipt of the Registration
Notice of the aggregate number of shares of Registrable Common that such
Stockholder then desires to sell in the offering. Each Stockholder desiring to
participate in such public offering may include shares of Registrable Common in
the registration statement relating to the offering, to the extent that the
inclusion of such shares shall not reduce the number of shares of Common Stock
to be offered and sold by WORK to be included therein. If the lead managing
underwriter selected by WORK for a public offering (or, if the offering is not
underwritten, a financial advisor to WORK) reasonably determines that marketing
factors require a limitation on the number of shares of Registrable Common to be
offered and sold in such offering, there shall be included in the offering only
that number of shares of Registrable Common, if any, requested to be included in
the offering
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that such lead managing underwriter or financial advisor, as the case may be,
reasonably and in good faith believes will not jeopardize the success of the
offering, provided, however, that if the lead managing underwriter or financial
advisor, as the case may be, determines that marketing factors require a
limitation on the number of shares of Registrable Common to be offered and sold
as aforesaid and so notifies WORK in writing, the number of shares of
Registrable Common to be offered and sold by holders desiring to participate in
the offering, shall be allocated among such holders on a pro rata basis based on
their holdings of Registrable Common. WORK shall have the right at any time to
reduce the number of shares requested by any Stockholder to be included in such
registration to the extent that WORK reasonably concludes that inclusion of such
shares is likely to jeopardize the non-recognition status under the Code of any
acquisition transaction consummated pursuant to any of the Acquisition
Agreements; provided, however, that any determination to exclude shares from any
such registration pursuant to this provision shall be based on advice of tax
counsel to WORK or its independent accountants.
3. Demand Registration Rights. At any time after the period ending
on the first anniversary of the date of this Agreement (the "Restricted Period")
and before the third anniversary of the date of this Agreement, the holders of
at least 51% of the shares of Registrable Common then outstanding may request
(the Stockholders making such request are herein referred to as the "Requesting
Holders") in writing that WORK file a registration statement under the
Securities Act covering the registration of all or, if less than all, at least
one million, of the shares of Registrable Common then held by such Stockholders
(a "Demand Registration"). Within ten days of the receipt of such request, WORK
shall give written notice of such request to all other Stockholders and shall
use its best efforts to effect as soon as practicable the registration under the
Securities Act in accordance with Section 4 hereof (including without
limitation, the execution of an undertaking to file post-effective amendments)
of all shares of Registrable Common which the Stockholders request be registered
within 30 days after the mailing of such notice, provided, however, that WORK
shall be obligated to effect only one Demand Registration pursuant to this
Section 3. In connection with a Demand Registration, the holders of a majority
of shares of Registrable Common included in such Demand Registration, in their
sole discretion, shall determine whether (a) to proceed with, withdraw from or
terminate such offering, (b) to select, subject to the approval of WORK (which
approval shall not be unreasonably withheld), a managing underwriter or
underwriters to administer such offering, (c) to enter into an underwriting
agreement for such offering, and (d) to take such actions as may be necessary to
close the sale of Registrable Common contemplated by such offering, including
waiving any conditions to closing such sale that may not have been fulfilled.
If such holders exercise their discretion under this paragraph to terminate a
proposed Demand Registration, the terminated Demand Registration shall not
constitute the Demand Registration under this Section 3, if the determination to
terminate such Demand Registration (i) follows the exercise by WORK of any of
its rights provided by the last two paragraphs of this Section 3 or (ii) results
from a material adverse change in the condition (financial or other), results of
operations, prospects or properties of the Company. Notwithstanding the
foregoing, a registration will not count as the Demand Registration under this
Section 3 until such registration has become effective and unless either (i) the
Requesting Holders are able to register and sell all of the shares of
Registrable Common requested by them to be included in such registration or (ii)
such registration statement has remained effective for at least 120 days.
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Notwithstanding the preceding paragraph, if WORK shall furnish to the
Requesting Holders a certificate signed by the President of WORK stating that,
in the good faith judgment of the Board of Directors of WORK, it would be
detrimental to WORK and its stockholders if such registration statement were to
be filed and it is therefore beneficial to defer the filing of such registration
statement, WORK shall have the right to defer such filing for a period of not
more than 90 days after receipt of the request of the Requesting Holders. WORK
shall promptly give notice to the holders of Registrable Common at the end of
any delay period under this paragraph.
Notwithstanding the preceding two paragraphs, if at the time of any
request by the Requesting Holders for a Demand Registration, WORK has fixed
plans to file within 90 days after such request for the sale of any of its
securities in a public offering under the Securities Act (other than an Exempt
Offering), no Demand Registration shall be initiated under this Section 3 until
90 days after the effective date of such registration unless WORK is no longer
proceeding diligently to effect such registration; provided that WORK shall
provide the holders of Registrable Common the right to participate in such
public offering pursuant and subject to Section 2.
4. Registration Procedures. In connection with registrations under
Sections 2 and 3, and subject to the terms and conditions contained therein,
WORK shall (a) use its best efforts to prepare and file with the Commission as
soon as reasonably practicable, a registration statement with respect to the
Registrable Common and use its best efforts to cause such registration to
promptly become and remain effective for a period of at least 180 days (or such
shorter period during which holders shall have sold all Registrable Common which
they requested to be registered); provided, however, that such 180-day period
shall be extended for a period equal to the period that a Stockholder agrees to
refrain from selling any securities included in such registration in accordance
with Section 8, during which the Stockholders may not make sales under such
registration statement (b) prepare and file with the Commission such amendments
(including post-effective amendments) to such registration statement and
supplements to the related prospectus to reflect appropriately the plan of
distribution of the securities registered thereunder until the completion of the
distribution contemplated by such registration statement or for so long
thereafter as a dealer is required by law to deliver a prospectus in connection
with the offer and sale of the shares of Registrable Common covered by such
registration statement and/or as shall be necessary so that neither such
registration statement nor the related prospectus shall 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 not misleading and so
that such registration statement and the related prospectus will otherwise
comply with applicable legal requirements; (c) provide to any Stockholder
requesting to include shares of Registrable Common in such registration
statement and a single counsel for all holders of Registrable Common requesting
to include shares of Registrable Common in such registration statement, which
counsel shall be selected by the holders of a majority of shares of Registrable
Common requested to be included in such registration statement and shall be
reasonably satisfactory to WORK, an opportunity to review and provide comments
with respect to such registration statement (and any post-effective amendment
thereto) prior to such registration statement (or post-effective amendment)
becoming effective; (d) use its best efforts to register and qualify the
Registrable Common covered by such registration statement under applicable
securities or "Blue Sky" laws of such jurisdictions as the holders shall
reasonably request for the distribution of the Registrable Common; (e) take such
other actions as are reasonable and necessary to comply with the
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requirements of the Securities Act; (f) furnish such number of prospectuses
(including preliminary prospectuses) and documents incident thereto as a
Stockholder from time to time may reasonably request; (g) provide to any
Stockholder requesting to include Registrable Common in such registration
statement and any managing underwriter participating in any distribution
thereof, and to any attorney, accountant or other agent retained by such
Stockholder or managing underwriter, reasonable access to appropriate officers
and directors of WORK to ask questions and to obtain information reasonably
requested by any such Stockholder, managing underwriter, attorney, accountant or
other agent in connection with such registration statement or any amendment
thereto; provided, however, that (i) in connection with any such access or
request, any such requesting persons shall cooperate to the extent reasonably
practicable to minimize any disruption to the operation by WORK of its business
and (ii) any records, information or documents shall be kept confidential by
such requesting persons, unless (A) such records, information or documents are
in the public domain or otherwise publicly available or (B) disclosure of such
records, information or documents is required by court or administrative order
or by applicable law (including, without limitation, the Securities Act); (h)
notify each Stockholder and the managing underwriters participating in the
distribution pursuant to such registration statement promptly (i) when WORK is
informed that such registration statement or any post-effective amendment to
such registration statement becomes effective, (ii) of any request by the
Commission for an amendment or any supplement to such registration statement or
any related prospectus, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or of any
order preventing or suspending the use of any related prospectus or the
initiation or threat of any proceeding for that purpose, (iv) of the suspension
of the qualification of any shares of Registrable Common included in such
registration statement for sale in any jurisdiction or the initiation or threat
of a proceeding for that purpose, (v) of any determination by WORK that any
event has occurred which makes untrue any statement of a material fact made in
such registration statement or any related prospectus or which requires the
making of a change in such registration statement or any, related prospectus in
order that the same will 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 not misleading, and (vi) of the completion of the
distribution contemplated by such registration statement if it relates to an
offering by WORK; (i) in the event of the issuance of any stop order suspending
the effectiveness of such registration statement or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any shares of Registrable Common included in such registration statement for
sale in any jurisdiction, use reasonable efforts to obtain its withdrawal; (j)
otherwise use reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, but not later than fifteen months after the
effective date of such registration statement, an earnings statement covering
the period of at least twelve months beginning with the first full fiscal
quarter after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11 (a) of the Securities Act;
(k) use reasonable diligence to cause all shares of Registrable Common included
in such registration statement to be listed on any securities exchange
(including, for this purpose, the Nasdaq National Market) on which the Common
Stock is then listed at the initiation of WORK; (l) use reasonable diligence to
obtain an opinion from legal counsel (which may include the General Counsel of
WORK) in customary form and covering such matters of the type customarily
covered by opinions as the underwriters, if any, may reasonably request; (m)
provide a transfer agent and registrar for all such Registrable Common not later
than
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the effective date of such registration statement; (n) enter into such customary
agreements (including an underwriting agreement in customary form) as the
underwriters, if any, may reasonably request in order to expedite or facilitate
the disposition of such shares of Registrable Common; and (o) use reasonable
diligence to obtain a "comfort letter" from WORK's independent public
accountants in customary form and covering such matters of the type customarily
covered by comfort letters as the underwriters, if any, may reasonably request.
As used in this Section 4 and elsewhere herein, the term "underwriters" does not
include any Stockholder.
5. Underwriting Agreement. In connection with each registration
pursuant to Section 2 or 3 covering an underwritten registered public offering,
WORK and each participating Stockholder agree to enter into a written agreement
with the managing underwriter in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of WORK's size and investment stature, including
provisions for indemnification by WORK and each Selling Stockholder as more
fully described in Section 12.
6. Availability of Rule 144. Notwithstanding anything contained
herein to the contrary, (including Sections 2 and 3), WORK shall not be
obligated to register shares of Registrable Common held by any Stockholder when
the resale provisions of Rule 144(k) are available to such Stockholder or such
Stockholder is otherwise entitled to sell the shares of Registrable Common held
by him or her in a brokerage transaction without registration under the
Securities Act and without limitation as to volume or manner of sale or both.
7. Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may permit the sale of
the shares of Registrable Common held by the Stockholders to the public without
registration, WORK agrees to:
(a) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times from and after 90 days
following the effective date of the registration statement;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of WORK under the
Securities Act and the Exchange Act at any time that it is subject to such
reporting requirements;
(c) so long as a Stockholder owns any shares of Registrable Common,
furnish to the Stockholder forthwith upon request a written statement by
WORK as to its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act (at any time that it is subject to such
reporting requirements), a copy of the most recent annual or quarterly
report of WORK, and such other reports and documents filed in accordance
with such reporting requirements as a Stockholder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a
Stockholder to sell any such securities without registration; and
(d) if required by the transfer agent and registrar for the Common
Stock, use reasonable diligence to obtain an opinion from legal counsel
(which may include the General
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Counsel of WORK) addressed to such transfer agent and registrar, with
respect to any sale of shares of Registerable Common pursuant to Rule 144
(or, at the option of WORK, pay the reasonable fees and expenses of legal
counsel retained by a Stockholder to provide such an opinion).
8. Market Standoff.
(a) In consideration of the granting to Stockholders of the
registration rights pursuant to this Agreement, each Stockholder agrees
that, for so long as such Stockholder holds shares of Registrable Common,
except as permitted by Sections 2 and 3, such Stockholder will not sell,
transfer or otherwise dispose of, including without limitation through put
or short sale arrangements, shares of Common Stock in the ten days prior to
the effectiveness of any registration (other than relating to an Exempt
Offering) of Common Stock for sale to the public and for up to 90 days
following the effectiveness of such registration.
(b) Except for Exempt Offerings or in connection with the acquisition
by WORK of another company or business, WORK shall not offer to sell or
sell any shares of capital stock of WORK during the 90-day period
immediately following the commencement of an underwritten public offering
of shares of Registrable Common pursuant to a Demand Registration.
9. Registration Expenses. All expenses incurred in connection with any
registration, qualification and compliance under this Agreement (including,
without limitation, all registration, filing, qualification, legal, printing and
accounting fees, and including all reasonable fees of one counsel acting on
behalf of all holders of the securities being registered in such registration)
shall be borne by WORK. All underwriting commissions and discounts applicable
to shares of Registrable Common included in the registrations under this
Agreement shall be borne by the holders of the securities so registered pro rata
on the basis of the number of shares so registered. Subject to the foregoing,
all expenses incident to WORK's performance of or compliance with this
Agreement, including, without limitation, all filing fees, fees and expenses of
compliance with securities or Blue Sky laws (including, without limitation, fees
and disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Common), printing expenses, messenger and delivery expenses,
internal expenses (including, without limitation, all salaries and expenses of
WORK's officers and employees performing legal or accounting duties), the fees
and expenses applicable to shares of Registrable Common included in connection
with the listing of the securities to be registered on each securities exchange
(including, for this purpose, the Nasdaq National Market) on which similar
securities issued by WORK are then listed at the initiation of WORK, registrar
and transfer agents' fees and fees and disbursements of counsel for WORK and its
independent certified public accountants, securities act liability insurance of
WORK and its officers and directors (if WORK elects to obtain such insurance),
the fees and expenses of any special experts retained by WORK in connection with
such registration and fees and expenses of other persons retained by WORK and
incurred in connection with each registration hereunder (but not including,
without limitation, any underwriting fees, discounts or commissions attributable
to the sale of Registrable Common, and transfer taxes, if any), will be borne by
WORK.
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10. Participation in Underwritten Registrations. No holder of
Registrable Common may participate in any underwritten registration hereunder
unless such holder (a) agrees to sell such holder's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
11. Transfer of Registration Rights; Additional Grants of Registration
Rights. The registration rights provided to the holders of Registrable Common
under Sections 2 and 3 hereof may not be transferred to any other person or
entity, except to another Stockholder or pursuant to the laws of descent and
distribution; provided, however, that such transferees are bound by and subject
to the terms and conditions contained herein. The Company may, without the
prior consent of the Stockholders, extend the registration rights provided for
in this Agreement to additional persons or entities who become holders of Common
Stock subsequent to the date of this Agreement by entering into one or more
addenda to this Agreement with any such stockholders, and, upon execution of any
such addenda, any stockholder that is a party thereto shall thereafter be a
"Stockholder" for purposes of this Agreement and any shares of Common Stock
referred to therein as such shall be shares of "Registrable Common" for purposes
of this Agreement. Nothing herein shall limit the ability of WORK to grant to
any person or entity any registration or similar rights in the future with
respect to Common Stock or other securities of WORK (whether pursuant to the
foregoing provision or otherwise).
12. Indemnification and Contribution.
(a) Indemnification by the Company. To the extent permitted by law,
WORK agrees to indemnify and hold harmless each Stockholder who sells
shares of Registrable Common in a registered offering pursuant to either
Section 2 or Section 3 (a "Selling Stockholder"), from and against any and
all losses, claims, damages, liabilities and expenses (including reasonable
legal expenses) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Common or in any
amendment or supplement thereto or in any related preliminary prospectus,
or arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of, or are based upon,
any such untrue statement or omission or allegation thereof based upon
information furnished in writing to WORK by such Selling Stockholder or on
such Selling Stockholder's behalf expressly for use therein. In connection
with an underwritten offering of shares of Registrable Common, WORK will
indemnify any underwriters of the Registrable Common, their partners,
officers and directors and each person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act) on substantially the same basis as that of the
indemnification of the Selling Stockholders provided in this Section 12(a).
Notwithstanding the foregoing, WORK's indemnification obligations with
respect to any preliminary prospectus shall not inure to the benefit of any
Selling Stockholder or underwriter with respect to any loss, claim, damage,
liability (or actions in respect thereof)
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or expense arising out of or based on any untrue statement or alleged
untrue statement or omission or alleged omission to state a material fact
in such preliminary prospectus, in any case where (i) a copy of the
prospectus used to confirm sales of shares of Registrable Common was not
sent or given to the person asserting such loss, claim, damage or liability
at or prior to the written confirmation of the sale to such person and (ii)
such untrue statement or alleged untrue statement or omission or alleged
omission was corrected in such prospectus.
(b) Conduct of Indemnification Proceedings. Promptly after receipt by
a Selling Stockholder of notice of any claim or the commencement of any
action or proceeding brought or asserted against such Selling Stockholder
in respect of which indemnity may be sought from WORK, such Selling
Stockholder shall notify WORK in writing of the claim or the commencement
of that action or proceeding; provided, however, that the failure to so
notify WORK shall not relieve WORK from any liability that it may have to
the Selling Stockholder otherwise than pursuant to the indemnification
provisions of this Agreement. If any such claim or action or proceeding
shall be brought against a Selling Stockholder and such Selling Stockholder
shall have duly notified WORK thereof, WORK shall have the right to assume
the defense thereof, including the employment of counsel. Such Selling
Stockholder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Selling Stockholder unless
(i) WORK has agreed to pay such fees and expenses or (ii) the named parties
to any such action or proceeding include both such Selling Stockholder and
WORK, and such Selling Stockholder shall have been advised by counsel that
there may be one or more legal defenses available to such Selling
Stockholder which are different from or additional to those available to
WORK, in which case, if such Selling Stockholder notifies WORK in writing
that it elects to employ separate counsel at the expense of WORK, WORK
shall not have the right to assume the defense of such action or proceeding
on behalf of such Selling Stockholder; it being understood, however, that
WORK shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any
time for all Selling Stockholders. WORK shall not be liable for any
settlement of any such action or proceeding effected without WORK's written
consent.
(c) Indemnification by Holders of Registrable Common. In connection
with any registration in which a Selling Stockholder is participating, such
Selling Stockholder will furnish to WORK in writing such information and
affidavits as WORK reasonably requests for use in connection with any
related registration statement or prospectus. To the extent permitted by
law, each Selling Stockholder severally agrees to indemnify and hold
harmless WORK, its directors and officers who sign the registration
statement relating to shares of Registrable Common offered by such Selling
Stockholder and each person, if any, who controls WORK within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from WORK to such Selling
Stockholder, but only with respect to information concerning such Selling
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Stockholder furnished in writing by such Selling Stockholder or on such
Selling Stockholder's behalf expressly for use in any registration
statement or prospectus relating to shares of Registrable Common offered by
such Selling Stockholder, or any amendment or supplement thereto, or any
related preliminary prospectus. In case any action or proceeding shall be
brought against WORK or its directors or officers, or any such controlling
person, in respect of which indemnity may be sought against such Selling
Stockholder, such Selling Stockholder shall have the rights and duties
given to WORK, and WORK or its directors or officers or such controlling
persons shall have the rights and duties given to such Selling Stockholder,
by the preceding paragraph. Each Selling Stockholder also agrees to
indemnify and hold harmless any underwriters of the Registrable Common,
their partners, officers and directors and each person who controls such
underwriters (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) on substantially the same basis as that
of the indemnification of WORK provided in this Section 12(c).
Notwithstanding anything to the contrary herein, in no event shall the
amount paid or payable by any Selling Stockholder under this Section 12(c)
exceed the amount of net proceeds received by such Selling Stockholder from
the offering of the Registrable Common.
(d) Contribution. If the indemnification provided for in this Section
12 is unavailable to any indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified parties in connection with the
actions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified parties 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 relates to
information supplied by such indemnified party or indemnified parties and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. WORK and the Selling
Stockholders agree that it would not be just and equitable if contribution
pursuant to this Section 12(d) were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable
considerations referred to in this Section 12(d). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. If indemnification is
available under this Section 12, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in Sections 12(a) and
(c) without regard to the relative fault of said indemnifying party or
indemnified party or any other equitable consideration provided for in this
Section 12(d).
13. Miscellaneous
(a) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented,
and waivers
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or consents to departures from the provisions hereof may not be given,
unless WORK has obtained the written consent of holders of at least 51% of
the shares of Registrable Common then outstanding.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopy, or
registered or certified mail (return receipt requested), postage prepaid,
or courier to the parties at the following addresses (or at such other
address for any party as shall be specified by like notice), provided that
notices of a change of address shall be effective only upon receipt
thereof. Notices sent by mail shall be effective when answered back,
notices sent by telecopier shall be effective when receipt is acknowledged,
and notices sent by courier guaranteeing next day delivery shall be
effective on the next business day after timely delivery by the courier.
Notices shall be sent to the following addresses:
(i) if to a Stockholder, at the most current address given by
such Stockholder to WORK in a writing making specific reference to
this Agreement;
(ii) if to WORK, at the following address:
Work International Corporation
700 Louisiana, Suite 3900
Houston, Texas 77002
Attn.: Monte R. Stephens
Vice President and Chief Acquisitions Officer
Telecopy No.: (713) 225-6104
with copies to:
Porter & Hedges, L.L.P.
700 Louisiana, 35th Floor
Houston, Texas 77002-2764
Attn: William W. Wiggins, Jr.
Telecopy: (713) 228-4935
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the heirs, executors, administrators, successors and
assigns of each of the parties.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
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(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise effect the meaning hereof.
(f) Section References. Unless the context requires otherwise,
references in this Agreement to "Sections" are to Sections of this
Agreement.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY WITHIN THAT STATE.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all the rights and privileges of
the Stockholders shall be enforceable to the fullest extent permitted by
law.
(i) Entire Agreement; Termination. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter. This Agreement, except the
provisions of Section 12 (which shall survive until the expiration of the
applicable statutes of limitations) and this Section 13, shall terminate
and be of no further force or effect on the third anniversary of the date
of this Agreement; provided, however, that no such termination shall affect
a registration pursuant to Section 2 or Section 3 of this Agreement which
is pending on the third anniversary of the date of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
WORK:
WORK INTERNATIONAL CORPORATION
By:
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Monte R. Stephens, Vice President and Chief
Acquisitions Officer
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STOCKHOLDERS:
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