1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
BETWEEN
ADMINISTAFF, INC.
AND
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
Dated as of March 10, 1998
- --------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
RECITALS..........................................................................................................1
SECTION 1. Definitions............................................................................1
(a) Defined Terms.................................................................1
(b) Terms Defined in Purchase Agreement...........................................5
(c) Cross-References..............................................................5
SECTION 2. Registration Under the Securities Act for the Benefit of the Holders...................5
(a) Filing of Registration Statement. ............................................5
(b) Number of Registrations.......................................................5
(c) Inclusion in Registration Statement. ........................................6
(d) Plan of Distribution. ........................................................6
(e) Company Delay Rights..........................................................6
(f) Selection of Underwriters. ..................................................7
(g) Priority......................................................................7
SECTION 3. Registration Procedures................................................................8
SECTION 4. Right to Piggyback....................................................................12
(a) Piggyback Registration.......................................................12
(b) Priority on Primary Offerings................................................12
(c) Priority on Secondary Offerings..............................................12
SECTION 5. Holdback Agreements...................................................................13
SECTION 6. Registration Expenses.................................................................13
SECTION 7. Indemnification.......................................................................14
(a) Indemnification by the Company...............................................14
(b) Indemnification by Holders of Registrable Stock. ...........................15
(c) Procedure....................................................................15
(d) Contribution.................................................................16
(e) Other Indemnifications.......................................................17
SECTION 8. Withdrawals...........................................................................17
SECTION 9. Exchange Act Registration; Rule 144 Reporting.........................................17
- i -
3
Page
SECTION 10. Limitation on Registration Rights of Others...........................................18
SECTION 11. Termination. ........................................................................18
SECTION 12. Notices. .............................................................................18
SECTION 13. Successors............................................................................19
SECTION 14. Governing Law. .......................................................................19
SECTION 15. Benefits of this Agreement. .........................................................19
SECTION 16. Counterparts..........................................................................19
SECTION 17. Amendments; Waivers...................................................................19
SECTION 18. Jurisdiction. .......................................................................20
SECTION 19. Specific Performance..................................................................20
SECTION 20. Entire Agreement. ...................................................................20
SECTION 21. Severability..........................................................................20
- ii -
4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of March
10, 1998, by and between ADMINISTAFF, INC., a Delaware corporation (the
"Company"), and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New
York corporation (the "Purchaser").
RECITALS:
A. The Purchaser and the Company have entered into a Securities
Purchase Agreement, dated as of January 27, 1998 (the "Purchase Agreement"),
pursuant to which the Purchaser has agreed to purchase Units from the Company,
each of which shall consist of one share of Common Stock and 2.98 Warrants;
B. As a condition of the willingness of the Purchaser to purchase the
Common Stock and the Warrants pursuant to the Purchase Agreement, the Company
has agreed to enter into this Agreement; and
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and to induce the Purchaser and the Company to proceed with the
transactions contemplated by the Purchase Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions.
(a) Defined Terms. For purposes of this Agreement, the
following terms have the meanings set forth below:
"Agreement" means this Registration Rights Agreement as in effect on
the date hereof and as hereafter amended, supplemented, restated or otherwise
modified.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York, New York or Houston, Texas.
"Common Stock" means shares now or hereafter authorized of any class of
common stock of the Company and any other capital stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets upon
voluntary or involuntary liquidation, dissolution or winding up of the Company
or in the earnings of the Company without limit as to per share amount, and
shall include, without limitation, the presently authorized 60,000,000 shares of
Common Stock, par value $.01 per share.
"Company" is defined in the Preamble.
5
"Current Market Price" of each share of Common Stock means (i) the
average of the closing prices of the Common Stock for the five-day period
immediately preceding the day in question as reported by The Wall Street Journal
under the New York Stock Exchange Composite Transactions quotation system (or
under any successor quotation system) or, if the Common Stock is no longer
traded on the New York Stock Exchange under the quotation system under which
closing prices are reported or, if The Wall Street Journal no longer reports
such closing prices, such closing prices as reported by a newspaper or trade
journal selected by the Company, or, if no such closing prices are available on
such dates, (ii) the proposed public offering price estimated in good faith by
the requesting Holders.
"Demand Prospectus" means the prospectus included in the Demand
Registration Statement, including any preliminary prospectus and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Registrable Stock covered by the Demand
Registration Statement, and in each case including all material incorporated by
reference therein.
"Demand Registration" shall mean a registration effected by means of a
Demand Registration Statement.
"Demand Registration Request" is defined in Section 2(a).
"Demand Registration Statement" shall mean a registration statement of
the Company (and any other entity required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities Act)
that covers all of the Registrable Stock to be offered and sold, and all
amendments (including post-effective amendments) to such registration statement,
and all exhibits thereto and materials incorporated by reference therein.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means the Purchaser or any subsequent holder of Registrable
Stock or Warrants.
"Indemnified Person" is defined in Section 7(a).
"Indemnifying Person" is defined in Section 7(c).
"Listed Underwriters" shall initially mean Morgan Stanley & Co.
Incorporated; Donaldson, Lufkin & Jenrette Securities Corporation; Solomon Smith
Barney; Lehman Brothers; Goldman, Sachs & Co.; Bear, Stearns & Co. Inc.; and
Merrill Lynch & Co.
"Maximum Number" is defined in Section 4(b).
"Named Underwriters" shall initially mean Morgan Stanley & Co.
Incorporated; Donaldson, Lufkin & Jenrette Securities Corporation; Raymond James
& Associates, Inc.; The Robinson-
-2-
6
Humphrey Company LLC.; Robert W. Baird & Co.; BancAmerica Robertson Stephenson;
Solomon Smith Barney; and BT Alex. Brown Incorporated.
"NASD" means the National Association of Securities Dealers, Inc.
"Piggyback Registration" is defined in Section 4(a).
"Piggyback Registration Request" is defined in Section 4(a).
"Prospectus" means a Demand Prospectus or a Shelf Prospectus.
"Purchase Agreement" is defined in the Recitals.
"Purchaser" is defined in the Preamble.
"PVI Agreement" means the Registration Rights Agreement among the
Company, Pyramid Ventures, Inc. and the Board of Trustees of the Texas Growth
Fund, as trustee for the Texas Growth Fund -- 1991 Trust, dated as of May 13,
1994.
"Registrable Stock" means (i) the Common Stock issued to the Purchaser
pursuant to the Purchase Agreement, (ii) the Common Stock issued or issuable
upon exercise of a Warrant, and (iii) any Common Stock issued or purchased upon
exercise of the preemptive or other purchase rights set forth in Section 9 of
the Purchase Agreement, (iv) any Common Stock acquired by the Purchaser after
the date hereof (other than pursuant to clauses (i), (ii) and (iii) above) and
(v) any Common Stock that may be issued or distributed in respect of the Common
Stock referred to in clauses (i) through (iv), or any stock split, stock
dividend, merger, share exchange, recapitalization or other distribution or
similar event; provided, however, that any Registrable Stock shall cease to be
Registrable Stock when (i) a registration statement covering such Registrable
Stock has been declared effective and such Registrable Stock has been disposed
of pursuant to such effective registration statement, or (ii) such Registrable
Stock is sold by a person in a transaction in which the rights under the
provisions of this Agreement are not assigned; provided, however, that any
Registrable Stock referred to in clause (iv) shall cease to be Registrable Stock
when the Purchaser is no longer an Affiliate of the Company.
"Registration Expenses" is defined in Section 6.
"Registration Request" is defined in Section 2(a).
"Registration Statement" means a Demand Registration Statement or a
Shelf Registration Statement.
"Requesting Holders" is defined in Section 2(a).
- 3 -
7
"SEC" means the Securities and Exchange Commission.
"Secondary Requests" is defined in Section 2(a).
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Expenses" is defined in Section 6.
"Shelf Prospectus" means the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, including any supplement relating to the terms of the
offering of any portion of the Registrable Stock covered by the Shelf
Registration Statement, and in each case including all material incorporated by
reference therein.
"Shelf Registration" shall mean a registration effected by means of a
Shelf Registration Statement.
"Shelf Registration Request" is defined in Section 2(a).
"Shelf Registration Statement" shall mean a registration statement of
the Company (and any other entity required to be a registrant with respect to
such registration statement pursuant to the requirements of the Securities Act)
that covers all of the Registrable Stock to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, or any similar
rule that may be adopted by the SEC, and all amendments (including
post-effective amendments) to such registration statement, and all exhibits
thereto and materials incorporated by reference therein.
"Termination Event" is defined in Section 7(c) of the Purchase
Agreement.
"Underwritten Distribution" is defined in Section 2(b).
"Underwritten Distribution Request" is defined in Section 2(f).
"Underwritten Transactions" is defined in Section 6.
"Units" means investment units of the Company, each of which consists
of one share of Common Stock and 2.98 Warrants.
"Warrant Agreement" means the Warrant Agreement, dated the date hereof,
between the Company and the Purchaser.
"Warrants" means the warrants to purchase one share of Common Stock of
the Company, issued to the Purchaser pursuant to the Purchase Agreement.
- 4 -
8
(b) Terms Defined in Purchase Agreement. Unless otherwise
defined herein, capitalized terms used in this Agreement shall have the meanings
ascribed to such terms in the Purchase Agreement.
(c) Cross-References. Unless otherwise specified, references
in this Agreement to any Section, Recital or Preamble are references to such
Section, Recital or Preamble of this Agreement, and unless otherwise specified,
references in any Section, or definition to any clause or subsection are
references to such clause or subsection of such Section or definition.
SECTION 2. Registration Under the Securities Act for the Benefit of the
Holders.
(a) Filing of Registration Statement. One or more Holders (the
"Requesting Holders") of Registrable Stock may notify the Company in writing at
any time and from time to time after the earlier of (i) the second anniversary
of the Closing Date and (ii) the occurrence of a Termination Event that such
Requesting Holders desire that the Company either (A) file a Shelf Registration
Statement with respect to the Registrable Stock (a "Shelf Registration Request")
or (B) file a Demand Registration Statement with respect to the Registrable
Stock (a "Demand Registration Request", and together with a "Shelf Registration
Request", a "Registration Request"). The Company agrees to use its reasonable
efforts to keep (i) any Shelf Registration Request continuously effective for a
period of two years after the effective date and (ii) any Demand Registration
Statement filed pursuant to a Demand Registration Request continuously effective
for a period of six months following the effective date. Promptly (and in any
case within five Business Days) following a Registration Request, the Requesting
Holders shall give written notice of such requested registration to all other
Holders and thereupon the Company will expeditiously prepare and file a
registration statement with respect to, and use its reasonable best efforts to
effect the registration under the Securities Act, of:
(1) the Registrable Stock which the Company has been
so requested to register by the Holders delivering the
Registration Request, for disposition in accordance with the
intended method of disposition stated in such request, and
(2) all other Registrable Stock which the Company has
been requested to register by the other Holders by written
request (a "Secondary Requests") delivered to the Company
within five Business Days after the giving of such notice by
the Requesting Holders.
Any Shelf Registration Request shall contain an undertaking by the Requesting
Holders that the numbers of shares requested to be registered pursuant to a
Shelf Registration Statement represent the number of shares that the Requesting
Holders in good faith believe will be sold or disposed of in the two year period
after the effective date of such Shelf Registration Request. Any Secondary
Request with respect to a Shelf Registration Statement shall contain a similar
undertaking. Notwithstanding anything to the contrary contained herein, the
Company shall not be required to file a Demand Registration Statement pursuant
to this Section 2(a) or to participate in an Underwritten
- 5 -
9
Distribution off of a Shelf Registration Statement if the Current Market Price
of all Registrable Stock which the Requesting Holders request be registered on
such Demand Registration Statement or sold in such Underwritten Distribution
does not equal $2,500,000 or more.
(b) Number of Registrations. In addition to the Company's obligations
under Section 2(a) to file registration statements, and to use its reasonable
best efforts to cause such registration statements to become effective, the
Company agrees to participate in underwritten distributions off of a Shelf
Distribution Statement (an "Underwritten Distribution"). The Company shall be
obligated to cause a Demand Registration Statement to be filed pursuant to the
provisions of Section 2(a) and to participate in Underwritten Distributions a
total of ten times; provided, however, that a request for a Demand Registration
Statement or an Underwritten Distribution shall not be deemed to be effected for
purposes of this Section 2(b) unless (i) the Demand Registration Statement or
Shelf Registration Statement (as the case may be) has been declared effective by
the SEC, and (ii) such registration statement has remained continuously
effective until the earlier of (A) the termination of the period set forth in
Section 2(a), (B) the disposition of the Registrable Stock covered by such
Registration Statement and (C) the withdrawal of such Registration Statement at
the request of the Requesting Holders. The Company shall be obligated to cause a
Shelf Registration Statement to be filed pursuant the provisions of Section 2(a)
an unlimited number of times. The Company shall not be obligated to cause a
Demand Registration Statement or Shelf Registration Statement to be filed
pursuant to the provisions of Section 2(a) at any time an earlier Registration
Statement is still effective, unless such later filing is intended to add
securities to be distributed in connection with the prior filing pursuant to
Rule 429 or 462 under the Securities Act (or any successor rules) or otherwise.
(c) Inclusion in Registration Statement. Any Holder who does not
provide the information requested by the Company and required by the rules and
regulations of the SEC to be included in a Registration Statement as promptly as
practicable after receipt of such request, but in no event later than ten days
thereafter, shall not be entitled to have its Registrable Stock included in a
Registration Statement.
(d) Plan of Distribution. A Registration Statement shall provide for
and permit distributions of the Registerable Stock through underwritten
distributions, secondary distributions, exchange distributions, block trades,
ordinary brokerage transactions, any other method of distribution requested by a
Holder or a combination of such methods of sale. Registerable Stock may be sold
from time to time to purchasers directly by any Holder, or any such Holder may
from time to time offer the Registerable Stock through underwriters, dealers or
agents, who may receive compensation in the form of discounts or commissions
from such Holder and/or the purchasers of Registerable Stock.
(e) Company Delay Rights. Notwithstanding anything to the contrary
contained herein, the Company shall not be required to take any of the actions
described in Section 3(a), Section 3(b), or Section 3(i) with respect to each
Holder who holds Registerable Stock to the extent that the Company is in
possession of material non-public information that it has a bona fide business
- 6 -
10
purpose for preserving as confidential and that is not then otherwise required
to be disclosed and it delivers written notice (i) in the case of a Demand
Registration, to each Holder that it intends to defer the actions so required
for a period not to exceed 60 days from the date of such notice, and (ii) in the
case of a Shelf Registration, to each Holder that it intends to defer the
actions so required, and that such Holder may not make offers or sales under a
Shelf Registration Statement, for a period not to exceed 60 days from the date
of such notice; provided, however, that the Company may deliver only two such
notices in the aggregate within any twelve-month period.
(f) Selection of Underwriters. Upon receipt of a Demand Registration
Request which contemplates an underwritten offering or a request (an
"Underwritten Distribution Request") to participate in an Underwritten
Distribution, the Company shall choose three of the Named Underwriters (two of
which must be Listed Underwriters) and promptly (but in any event within five
Business Days) notify the Requesting Holders of its selections. The Holders of a
majority of the Registerable Stock to be sold in the Demand Registration or
Underwritten Distribution then may designate one of the three designated Named
Underwriters to serve as the managing underwriter in such offering. The Company
and the Purchaser agree to annually review the list of Named Underwriters and to
mutually agree on any deletions or additions to the list of Named Underwriters,
provided that the list of Named Underwriters shall at all times include at least
seven Named Underwriters and at least two Listed Underwriters. The Company and
the Purchaser agree to annually review the list of Listed Underwriters and to
mutually agree on any deletions or additions to the list of Listed Underwriters.
(g) Priority. Notwithstanding any other provision of this Section 2,
if, in the case of a Demand Registration involving an underwritten offering, the
managing underwriter advises the Company and the Requesting Holders in writing
that in its opinion the aggregate number of shares of Common Stock requested to
be included in such offering (including Registrable Stock and any shares of
Common Stock to be offered for the account of the Company or any other
securityholder of the Company) would materially adversely affect the success of
such offering or the offering price of the shares of Common Stock to be offered,
the managing underwriter may limit the Registrable Stock that may be included in
such registration. The Company shall so advise each Requesting Holder of such
limitation, and the number of shares of Registrable Stock that may be included
in such registration and underwriting shall be allocated in the following order
of priority: (i) first, the number of shares of Registrable Stock specified in
the Demand Request (and in any Secondary Requests) in proportion, as nearly as
practicable, to the respective number of Registrable Stock requested to be
included in such registration by each such Holder, (ii) second, any or all
shares of Common Stock to be sold by the Company pursuant to such registration,
and (iii) third, among any other securityholders requesting that shares of
Common Stock held by such securityholders be included in such registration in
proportion, as nearly as practicable, to the respective number of shares of
Common Stock requested to be included in such registration by each such
securityholder. No Registrable Stock or other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
- 7 -
11
SECTION 3. Registration Procedures.
In connection with the obligations of the Company with respect to a
Shelf Registration Statement or Demand Registration Statement contemplated by
Section 2 hereof, the Company shall as expeditiously as possible:
(a) subject to Section 2(e) hereof, prepare and file with the
SEC a Shelf Registration Statement or Demand Registration Statement for the sale
of the Registrable Stock in accordance with the requested methods of
distribution described in Section 2(d) hereof, which Registration Statement
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to cause such Registration
Statement to become and remain effective for the periods contemplated in this
Agreement;
(b) subject to Section 2(e) and Section 3(i) hereof, (i)
prepare and file with the SEC such amendments to each Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period; (ii) cause the Prospectus to be amended or supplemented as
required and to be filed as required by Rule 424 or any similar rule that may be
adopted under the Securities Act; (iii) respond as promptly as practicable to
any comments received from the SEC with respect to a Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the requested methods
of distribution;
(c) furnish to each Holder, without charge, as many copies of
each Shelf Prospectus or Demand Prospectus forming a part of a Registration
Statement and any amendment or supplement thereto in order to facilitate the
public sale or other disposition of the Registrable Stock; subject to Section
2(e) hereof, the Company consents to the use of the Shelf Prospectus or Demand
Prospectus and any amendment or supplement thereto by each such Holder of
Registrable Stock in connection with the offering and sale of the Registrable
Stock covered by the Shelf Prospectus or Demand Prospectus or amendment or
supplement thereto;
(d) use its reasonable efforts to register or qualify the
Registrable Stock by the time a Shelf Registration Statement or Demand
Registration Statement (as the case may be) is declared effective by the SEC
under all applicable state securities or blue sky laws of such jurisdictions in
the United States and its territories and possessions as any Holder who holds
Registrable Stock covered by such Shelf Registration Statement or Demand
Registration Statement shall reasonably request in writing, keep each such
registration or qualification effective during the period such Shelf
Registration Statement or Demand Registration Statement is required to be kept
effective; provided, however, that in connection therewith, the Company shall
not be required to
- 8 -
12
(i) qualify as a foreign corporation to do business or to register as a broker
or dealer in any such jurisdiction where it would not otherwise be required to
qualify or register but for this Section 3(d), (ii) subject itself to taxation
in any such jurisdiction, or (iii) file a general consent to service of process
in any such jurisdiction;
(e) notify each Holder promptly (i) when a Shelf Registration
Statement or Demand Registration Statement (as the case may be) and any
post-effective amendments thereto have become effective, (ii) when any amendment
or supplement to a Shelf Prospectus or Demand Prospectus forming a part of a
Registration Statement has been filed with the SEC, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or Demand Registration Statement
or any part thereof or the initiation of any proceedings for that purpose, (iv)
if the Company receives any notification with respect to the suspension of the
qualification of the Registrable Stock for offer or sale in any jurisdiction or
the initiation of any proceeding for such purpose, and (v) of the happening of
any event during the period a Shelf Registration Statement or Demand
Registration Statement is effective as a result of which (A) such Shelf
Registration Statement or Demand Registration Statement contains any 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 not misleading or (B)
the Shelf Prospectus or Demand Prospectus forming a part of the registration
statement as then amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(f) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Shelf Registration Statement or
Demand Registration Statement or any part thereof as promptly as possible;
(g) furnish to each Holder, without charge, at least one
conformed copy of each Shelf Registration Statement and Demand Registration
Statement and any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Registrable Stock
to be sold and not bearing any Securities Act legend; and enable certificates
for such Registrable Stock to be issued for such numbers of shares and
registered in such names as the selling Holders may reasonably request at least
two business days prior to any sale of Registrable Stock;
(i) subject to Section 2(e) hereof, upon the occurrence of any
event contemplated by Section 2(e) or clause (v) of Section 3(e) hereof, use its
reasonable efforts promptly to prepare and file an amendment or a supplement to
the Shelf Prospectus or Demand Prospectus or any document incorporated therein
by reference or prepare, file and obtain effectiveness of a post-effective
amendment to the Shelf Registration Statement or Demand Registration Statement,
or file any other required document, in any such case to the extent necessary so
that, such Shelf Prospectus
- 9 -
13
or Demand Prospectus and Shelf Registration Statement or Demand Registration
Statement as then amended or supplemented will not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they are
made, not misleading;
(j) make available for inspection by the Holders and any
counsel, accountants, underwriters, dealers or agents or other representatives
retained by such Holders all financial and other records, pertinent corporate
documents and properties of the Company and cause the officers, directors and
employees of the Company to supply all such records, documents or information
reasonably requested by such Holders, counsel, accountants or representatives in
connection with any Registration Statement; provided, however, that such
records, documents or information which the Company determines in good faith to
be confidential and notifies such Holders, counsel, accountants or
representatives in writing that such records, documents or information are
confidential shall not be disclosed by such Holders, counsel, accountants or
representatives unless (i) such disclosure is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, or (ii) such records,
documents or information become generally available to the public other than
through a breach of this Agreement;
(k) furnish, at the request of any selling Holder, on the date
that shares of Registrable Stock are delivered to the underwriters for sale
pursuant to a Demand Registration or an Underwritten Distribution: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters, stating that the Shelf
Registration Statement or Demand Registration Statement (as the case may be) has
become effective under the Securities Act and that (A) to the knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the Registration Statement and
Prospectus, and each amendment or supplement thereto, comply as to form in all
material respects with the requirements of the Securities Act and the applicable
rules and regulations of the SEC thereunder and that such counsel does not
believe that any such Registration Statement, Prospectus, amendment or
supplement contains a misstatement of a material fact or an omission to state a
material fact required to be stated therein or necessary to make the statements
made therein not misleading (except that such counsel need express no opinion as
to financial statements or financial or statistical data contained therein) and
(C) to such other effects as may reasonably be requested by counsel for the
underwriters or by such selling Holder or its counsel, and (ii) a letter dated
such date from the independent public accountants retained by the Company,
addressed to the underwriters, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
Registration Statement and the Prospectus, or any amendment or supplement
thereto, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to the registration in respect of which such letter is being given
as such underwriters may reasonably request;
- 10 -
14
(l) a reasonable time prior to the filing of the Shelf
Registration Statement or Demand Registration Statement or any amendment
thereto, or any Shelf Prospectus or Demand Prospectus forming a part of the
registration statement or any amendment or supplement thereto, provide copies of
such document (not including any documents incorporated by reference therein,
unless requested) to the Holders;
(m) use its reasonable efforts to cause all Registrable Stock
to be listed on any securities exchange on which similar securities issued by
the Company are then listed; and
(n) use its reasonable efforts to make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder.
In connection with and as a condition to the Company's obligations with
respect to any Shelf Registration Statement or Demand Registration Statement
pursuant to Section 2 hereof and this Section 3, each Holder covenants and
agrees that upon receipt of any notice from the Company contemplated by Section
2(e) or Section 3(e) (in respect of the occurrence of an event contemplated by
clause (v) of Section 3(e)), such Holder shall not offer or sell any Registrable
Stock pursuant to a Shelf Registration Statement or Demand Registration
Statement until such Holder receives copies of the supplemented or amended Shelf
Prospectus or Demand Prospectus contemplated by Section 3(i) hereof and receives
notice that any post-effective amendment has become effective, and, if so
directed by the Company, such Holder will deliver to the Company (at the expense
of the Company) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Shelf Prospectus or Demand Prospectus
as amended or supplemented at the time of receipt of such notice.
In connection with each Demand Registration Statement or Underwritten
Distribution pursuant to this Section 3 and Section 2 hereof, the Company agrees
(i) to cooperate fully in such distribution, and (ii) to participate in meetings
with potential investors and in the preparation of presentations for such
meetings and to cause its executive officers to participate in a "roadshow" if
the managing underwriter so requests; provided, that the Company shall be
obligated to participate in meetings and "roadshows" pursuant to (ii) above on
only seven occasions. In connection with each Demand Registration Statement or
Underwritten Distribution pursuant to this Section 3 and Section 2 hereof, the
Company further agrees, to enter into a written agreement with the managing
underwriter selected in the manner herein provided in such form and containing
such provisions as are customary in the securities business for such an
arrangement between major underwriters and companies of the Company's size and
investment stature, including, without limitation, customary indemnification
provisions substantially consistent with Section 7 hereof and customary lockup
provisions; provided that such agreement shall not contain any such provision
applicable to the Company which is inconsistent with the provisions hereof;
provided, further that the time and place of the closing under said agreement
shall be as mutually agreed upon between the Company and such managing
underwriter. In connection with any other distribution that is not a
underwritten distribution, the Company agrees to enter into a written agreement
with any broker or dealer who
- 11 -
15
participates in such distribution containing such provisions as are customary in
the securities business for such an arrangement, including, without limitation,
customary indemnity provisions substantially consistent with Section 7.
SECTION 4. Right to Piggyback.
(a) Piggyback Registration. If the Company at any time
proposes to register any of its Common Stock or other securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other shareholders or both (except with respect to registration
statements on Form S-4, Form S-8 or another form not available for registering
the Registrable Stock for sale to the public) (a "Piggyback Registration"), the
Company will promptly (but in any event within 20 Business Days) give written
notice to all Holders of its intention to effect such registration and will
include in such registration all Registrable Stock with respect to which the
Company has received written requests for inclusion within 10 Business Days
after the giving of the Company's notice (a "Piggyback Registration Request");
provided, however, that the Company shall not be required to include Registrable
Stock in the securities to be registered pursuant to a registration statement on
any form which limits the amount of securities which may be registered by the
issuer and/or selling security holders if, and to the extent that, such
inclusion would make the use of such form unavailable, so long as no other
shares are to be included in the securities to be registered pursuant to the
registration statement for the account of any person other than the Company. In
the event that any Piggyback Registration shall be, in whole or in part, an
underwritten public offering of Common Stock, any Piggyback Registration Request
by a Holder shall include an agreement of such Holder that such Registrable
Stock is to be included in the underwriting on the same terms and conditions as
the shares of Common Stock otherwise being sold through underwriters under such
registration.
(b) Priority on Primary Offerings. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of shares requested to be included in such registration exceeds the
maximum number which can be included in such offering without adversely
affecting the marketability of the offering (the "Maximum Number"), the Company
will limit the number of shares included in such registration to the Maximum
Number, and the shares registered shall be selected in the following order of
priority: (i) first, securities the Company proposes to sell, (ii) second,
subject to the rights set forth in the PVI Agreement as in effect on the date
hereof, Registrable Stock covered by Piggyback Registration Requests, which
shall be pro rata among the Holders thereof on the basis of the number of shares
requested to be registered by each such Holder, and (iii) third, other
securities requested to be included in such registration.
(c) Priority on Secondary Offerings. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the Maximum Number, the Company will include in
such registration the shares requested to be included therein by the holders
requesting such
- 12 -
16
registration and the Registrable Stock covered by Piggyback Registration
Requests and any other securities requested to be included in such registration,
pro rata among the holders thereof on the basis of the number of shares
requested to be included in such registration; provided, however, that if the
holders requesting registration are doing so pursuant to demand registration
rights of such holders, such holders' shares shall take priority over any
Registrable Stock.
SECTION 5. Holdback Agreements. If any registration in which any Holder
is participating shall be in connection with an underwritten public offering,
each such Holder agrees (and shall enter into an agreement which shall so
state), if requested by the managing underwriter or underwriters, not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any Registrable Stock (other than as part of such
underwritten public offering) during the 90 day period beginning on the
effective date of any underwritten offering of securities by the Company;
provided, however, that the provisions of this Section 5 shall be applicable to
Holders only if each officer and director of the Company, and all other
stockholders of the Company so requested by the underwriters, shall, prior to
such effective date, have entered into written agreements with the Company
and/or the managing underwriter or underwriters imposing on such officer and
director and other stockholders similar restrictions as those set forth in this
Section 5 with respect to the Holders.
SECTION 6. Registration Expenses. Except as otherwise provided herein,
all expenses incident to the Company's performance of or compliance with its
obligations under this Agreement will be paid by the Company, regardless of
whether Registrable Stock is sold pursuant to any registration statement,
including, without limitation, all registration, filing and listing fees, fees
and expenses of compliance with securities or blue sky laws, printing,
messenger, telephone and delivery expenses, fees and disbursements of counsel
for the Company, fees and disbursements of all independent certified public
accountants of the Company (including, without limitation, in connection with
any special audit or "cold comfort" letters), and fees and expenses associated
with any NASD filing required to be made in connection with the registration
statement, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD (collectively, the
"Registration Expenses"); provided, however, that any incremental expenses
incurred by the Company in connection with the registration and disposition of
Registrable Stock referred to in clause (iv) of the definition of Registrable
Stock in Section 1 hereof shall not be Registration Expenses for purpose hereof
and will be paid in all cases by the Purchaser. Registration Expenses shall not
include the fees and disbursements of counsel for any Holder or any fees,
discounts or commissions to any underwriter or any fees or disbursements of
counsel for any underwriter in respect of the Registrable Stock sold by such
Holders (collectively, the "Selling Expenses"). Notwithstanding the first
sentence of this Section 6, with respect to Demand Registration Statements and
Underwritten Distributions (collectively, the "Underwritten Transactions"), the
Registration Expenses shall be payable as follows: the Company shall pay the
Registration Expenses for the first three Underwritten Transactions; the Holders
shall pay the Registration Expenses for the fourth Underwritten Transaction; the
Company shall pay the Registration Expenses for the fifth Underwritten
Transaction; the Holders shall pay the Registration Expenses for the sixth
- 13 -
17
Underwritten Transaction; the Company shall pay the Registration Expenses for
the seventh Underwritten Distribution; and the Holders shall pay the
Registration Expenses for the eighth Underwritten Distribution. The Company
will, in any event, pay its internal expenses, the expense of any annual audit,
and the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which securities of
the same class are then listed or the qualification for trading of the
securities to be registered in each inter-dealer quotation system in which
securities of the same class are then traded.
SECTION 7. Indemnification.
(a) Indemnification by the Company. In the event of the
registration of any Registrable Stock under the Securities Act pursuant to the
provisions hereof, the Company will indemnify and hold harmless each and every
seller of Registrable Stock, its directors, officers, employees and agents, and
each other Person, if any, who controls such seller within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
Person being hereinafter sometimes referred to as an "Indemnified Person"
provided that for purposes of subsections (b), (c) and (d) of this Section 7
"Indemnified Person" also shall include the Company, its directors, officers,
employees and agents, and each other Person, if any who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) from and against any losses, claims, damages, liabilities or
expenses, joint or several, to which such Indemnified Person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in any registration
statement under which Registrable Stock was registered under the Securities Act
or any prospectus or preliminary prospectus included therein (in each case, as
amended or supplemented), or any document incorporated by reference therein, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such Indemnified
Person for any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made or incorporated by reference in
such registration statement or prospectus or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by such Indemnified Person stated to be specifically for use in
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Person
and shall survive the transfer of such Registrable Stock.
(b) Indemnification by Holders of Registrable Stock. In the
event of the registration of any Registrable Stock under the Securities Act
pursuant to the provisions hereof, each Holder on whose behalf such Registrable
Stock shall have been registered will indemnify and hold harmless each and every
Indemnified Person, against any losses, claims, damages or liabilities, joint
- 14 -
18
or several, to which such Indemnified Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained or incorporated by reference in any registration statement under
which Registrable Stock was registered under the Securities Act or any
prospectus or preliminary prospectus included therein (in each case, as amended
or supplemented), or any document incorporated by reference therein, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or alleged untrue statement or
omission or alleged omission has been made or incorporated therein in reliance
upon and in conformity with written information furnished to the Company by such
Holder specifically stating that it is for use in preparation thereof, and will
reimburse each such Indemnified Person for any legal and other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the liability of each Holder hereunder shall be limited to the
proceeds received by such Holder from the sale of Registrable Stock covered by
such registration statement.
(c) Procedure. Promptly after receipt by an Indemnified Person
of notice of the commencement of any action (including any governmental
investigation or inquiry), such Indemnified Person will, if such Indemnified
Person intends to make a claim in respect thereof against the party agreeing to
indemnify such Indemnified Person pursuant to subsections (a) or (b) of this
Section 7 (any such Person being hereinafter referred to as an "Indemnifying
Person"), give written notice to such Indemnifying Person of the commencement
thereof, but the omission so to notify the Indemnifying Person shall not relieve
the Indemnifying Person from any of its obligations pursuant to the provisions
of this Section 7 except to the extent that the Indemnifying Person is actually
prejudiced by such failure to give notice. In case any such action is brought
against any Indemnified Person and it notifies an Indemnifying Person of the
commencement thereof, the Indemnifying Person shall be entitled to participate
in, and to the extent that it may wish, jointly with any other Indemnifying
Person similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Person, and after notice from the
Indemnifying Person to such Indemnified Person, the Indemnifying Person shall
not, except as hereinafter provided, be responsible for any legal or other
expenses subsequently incurred by such Indemnified Person in connection with the
defense thereof. No Indemnifying Person will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Person of a
release from all liability in respect of such claim or litigation. Such
Indemnified Person 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 the expense of such Indemnified Person unless (i) the
Indemnifying Person has agreed to pay such fees and expenses, (ii) the
Indemnifying Person shall have failed to assume the defense of such action or
proceeding or has failed to employ counsel reasonably satisfactory to such
Indemnified Person in any such action or proceeding or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include both
such Indemnified Person and the Indemnifying Person and such Indemnified Person
shall have been advised by counsel that representation of both
- 15 -
19
parties by the same counsel would be inappropriate due to actual or potential
material differing interests between them (in which case, if such Indemnified
Person notifies the Indemnifying Person in writing that it elects to employ
separate counsel at the expense of the Indemnifying Person, the Indemnifying
Person shall not have the right to assume the defense of such action or
proceeding on behalf of such Indemnified Person). The Indemnifying Person shall
not be liable for any settlement of any such action or proceeding effected
without its written consent, which consent shall not unreasonably be withheld,
delayed or conditioned, but if settled with its written consent, or if there is
a final judgment for the plaintiff in any such action or proceeding, subject to
no further appeal, the Indemnifying Person shall indemnify and hold harmless
such Indemnified Persons from and against any loss or liability by reason of
such settlement or judgment.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to a party that would have been an Indemnified Person
under this Section 7 in respect of any losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to herein, then each party
that would have been an Indemnifying Person thereunder shall, in lieu of
indemnifying such Indemnified Person, contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Person on the one
hand and the Indemnified Person on the other in connection with the statement or
omission which resulted in such losses, claims, damages, liabilities or expenses
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission of a material fact relates to information
supplied by the Indemnifying Person or the Indemnified Person and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7(c), any legal or other fees or expenses reasonably incurred by such
party in connection with the investigation or defense of any action or claim.
The Company and each Holder of Registrable Stock agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 7. Notwithstanding
the provisions of this Section 7(d), no Holder of Registrable Stock shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Stock sold by it exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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.
(e) Other Indemnifications. Indemnification or, if
appropriate, contribution, similar to that specified in the preceding provisions
of this Section 7 (with appropriate modifications) shall be given by the Company
and each seller of Registrable Stock with respect to any required
- 16 -
20
registration or other qualification of such Registrable Stock under any federal
or state law or regulation or governmental authority other than the Securities
Act.
SECTION 8. Withdrawals. Any Holder or Holders may at any time withdraw
any request made pursuant to Section 4 hereof for inclusion of its Registrable
Stock in a Piggyback Registration or Section 2 hereof for registration of its
Registrable Stock.
SECTION 9. Exchange Act Registration; Rule 144 Reporting. The Company
covenants and agrees that until such time as the Holders no longer hold any
Registrable Stock it will:
(a) if required by law, maintain an effective registration
statement (containing such information and documents as the SEC shall specify)
with respect to the Common Stock of the Company under Section 12(g) of the
Exchange Act;
(b) use its reasonable best efforts to make and keep public
information available, as those terms are understood and defined in Rule 144
under the Securities Act, even if the Company subsequently ceases to be subject
to the reporting requirements of the Securities Act or the Exchange Act;
(c) use its reasonable best efforts to file with the SEC in a
timely manner all reports and documents required of the Company under the
Securities Act and the Exchange Act; and
(d) furnish to any Holder promptly upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 under the Securities Act and of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the Company,
and (iii) such other reports and documents of the Company and other information
in the possession of or reasonably attainable by the Company as such Holder may
reasonably request in availing itself of any rule or regulation of the SEC
allowing such Holder to sell any such Registrable Stock without registration.
The Company represents and warrants that such registration statement or any
information, document or report filed with the SEC in connection therewith or
any information so made public shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements contained therein not misleading. The
Company agrees to indemnify and hold harmless (or to the extent the same is not
enforceable, make contribution to) the Holders, their officers, directors,
employees and agents, or any Person controlling (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) such Holder
from and against any and all losses, claims, damages, liabilities or expenses
(or actions in respect thereof) arising out of or resulting from any breach of
the foregoing representation or warranty, all on terms and conditions comparable
to those set forth in Section 7.
- 17 -
21
SECTION 10. Limitation on Registration Rights of Others. Except as set
forth on Exhibit A hereto, the Company represents and warrants that it has not
granted to any Person the right to request or require the Company to register
any securities issued by the Company. The Company covenants and agrees that, so
long as Holders hold Registrable Stock with a Current Market Price equal to or
greater than $2,500,000, the Company will not, directly or indirectly, grant to
any Person or agree to or otherwise become obligated in respect of any
registration rights of securities of the Company upon the demand of any Person
without the prior written consent of the Required Holders. The Company may grant
"piggyback" registration rights after the date hereof, provided such rights are
expressly subject and subordinated to the rights of registration of the Holders
pursuant to Section 4(b) on terms reasonably satisfactory to the Required
Holders.
SECTION 11. Termination. The rights of any Holder under Sections 2, 3
and 4 of this Agreement shall terminate as to any Registrable Stock when such
Registrable Stock has been effectively registered under the Securities Act and
sold pursuant to a registration statement covering such Registrable Stock. The
expense provisions of Section 6 and the indemnification and contribution
provisions of Section 7 shall survive any termination of this Agreement.
SECTION 12. Notices. All notices, consents, approvals, agreements and
other communications provided hereunder shall be in writing and delivered
personally, by mail or by telecopy and shall be sufficiently given to the
Purchaser and the Company if addressed or delivered to them at the following
addresses:
If to Company: Administaff, Inc.
19001 Crescent Springs Drive
Kingswood, Texas 77339-3802
Attention: General Counsel
Telephone No.: (281)348-3251
Telecopier No.: (281)348-2859
with a copy to: Andrews & Kurth L.L.P.
4200 Texas Commerce Tower
600 Travis Street
Houston, Texas 77002
Attention: G. Michael O'Leary
Telephone No.: (713)220-4360
Telecopier No.: (713)220-4593
- 18 -
22
If to the Purchaser: American Express Company
American Express Tower
World Financial Center
200 Vesey Street
New York, New York 10285
Attention: General Counsel
Telephone No.: (212) 640-5789
Telecopier No.: (212) 267-9061
with a copy to: King & Spalding
191 Peachtree Street
Atlanta, Georgia 30301-1763
Attention: John J. Kelley III
Telephone No.: (404)572-3401
Telecopier No.: (404)572-5146
or at such other address as any party or any other Holder may designate to any
other party by written notice. All such notices and communications shall be
deemed to have been duly given: (i) at the time delivered by hand, if personally
delivered, (ii) when received, if deposited in the mail, postage prepaid and
(iii) when transmission is verified, if telecopied.
SECTION 13. Successors. All covenants and agreements of this Agreement
by or on behalf of any of the parties hereto shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns, including, without limitation, any Holders from time to time of the
Registrable Stock or the Warrants and successors and assigns by operation of
law, merger or consolidation; provided, that without the consent of the Company
the Purchaser may not assign its rights under this Agreement to any Person,
except for an assignment to an Affiliate of the Purchaser, an Associate of the
Purchaser, a Subsidiary of the Purchaser or any entity of which Purchaser is,
directly or indirectly, a Subsidiary.
SECTION 14. Governing Law. This Agreement shall be governed by laws of
the State of New York and for all purposes shall be construed in accordance with
the internal laws of said state.
SECTION 15. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Purchaser and the
other Holders any legal or equitable right, remedy or claim under this
Agreement; this Agreement shall be for the sole and exclusive benefit of the
Company, the Purchaser and the other Holders.
SECTION 16. Counterparts. This Agreement may be executed in any number
of counterparts and each such counterpart shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute one and the
same instrument.
- 19 -
23
SECTION 17. Amendments; Waivers. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or waived and the
Company may take any action herein prohibited, or fail to take any action herein
required to be performed by it if, but only if, the Company has obtained the
written consent of the Holders of a majority of the total number of shares of
outstanding Registrable Stock at the time such amendment or waiver becomes
effective and any such waiver or action so given or taken shall be binding on
all Holders. No failure or delay by any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, and a waiver of a particular right
or remedy on one occasion shall not be deemed a waiver of any other right or
remedy or a waiver of the same right or remedy on any subsequent occasion.
SECTION 18. Jurisdiction. Each of the parties hereto hereby agrees that
any legal action or proceeding against such party with respect to this Agreement
may be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York as the other party may elect, and,
by execution and delivery hereof, such party accepts and consents for itself and
in respect of its property, generally and unconditionally, the jurisdiction of
the aforesaid courts and agrees that such jurisdiction shall be exclusive,
unless waived by the other party in writing, with respect to any action or
proceeding brought by such party against the other party. Each of the parties
hereto irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of the
copies thereof by certified mail, return receipt requested, postage prepaid, to
it at its address set forth herein, such service to become effective upon the
earlier of (i) the date ten calendar days after such mailing and (ii) any
earlier date permitted by applicable law.
SECTION 19. Specific Performance. The Company recognizes that the
rights of the Holders under this Agreement are unique and, accordingly, the
Holders shall, in addition to such other remedies as may be available to any of
them at law or in equity, have the right to enforce their rights hereunder by
actions for injunctive relief and specific performance to the extent permitted
by law. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate. This Agreement is
not intended to limit or abridge any rights of the Holders which may exist apart
from this Agreement.
SECTION 20. Entire Agreement. The parties hereto agree that this
Agreement, the Purchase Agreement and the other Transaction Documents constitute
the entire agreement among the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings between them as to such
subject matter; and there are no restrictions, agreements, arrangements, oral or
written, between any or all of the parties relating to the subject matter hereof
which are not fully expressed or referred to herein or therein.
SECTION 21. Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or unenforceable
as applied to any particular case in any jurisdiction or jurisdictions, or in
all jurisdictions or in all cases, because of the conflict of any
- 20 -
24
provision with any constitution, statute, rule or public policy, or for any
other reason, such circumstance shall not have the effect of rendering the
provision or provisions in question, invalid, inoperative or unenforceable in
any other jurisdiction or in any other case or circumstance or of rendering any
other provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not themselves
actually in conflict with such constitution, statute, rule or public policy, but
this Agreement shall be reformed and construed in any such jurisdiction or case
as if such invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be valid,
operative and enforceable to the maximum extent permitted in such jurisdiction
or in such case.
- 21 -
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ADMINISTAFF, INC.
By: /s/ PAUL J. SARVADI
--------------------------------------
Name: Paul J. Sarvadi
Title: President
AMERICAN EXPRESS COMPANY
By: /s/ ANNE BUSQUET
--------------------------------------
Name: Anne Busquet
Title: President, AERS
- 22 -