EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June
14, 2001, by and among Navigant International, Inc., a Delaware corporation (the
"Company"), and each of the parties identified on Exhibit A hereto
(collectively, the "Stockholders").
1. Introduction. The Company is a party to the Agreement and Plan of Merger (the
"Merger Agreement"), dated of even date herewith, by and among the Company, SATO
Travel Holding Co., Inc., a Delaware corporation, and the Stockholders, pursuant
to which the Company has agreed, among other things, (a) to issue 1,469,390
shares (subject to equitable adjustment in the event of any stock split, stock
dividend, reverse stock split or similar event affecting the Common Stock after
the date hereof) (the "Initial Shares") of its Common Stock, par value $0.001
per share (the "Common Stock"), to the Stockholders at the closing of the
transactions contemplated by the Merger Agreement (the "Closing"), a portion of
which shall be held in escrow pursuant to the terms and conditions of the Merger
Agreement and the Escrow Agreement (as defined therein), all of which shares
shall be subject to registration rights hereunder, and (b) an additional number
of shares of Common Stock as Contingent Merger Consideration (as defined in the
Merger Agreement) that will be issued in the future if certain events occur, as
further set forth in the Merger Agreement (the "Contingent Shares"), all of
which shares shall be subject to registration rights hereunder. This Agreement
shall become effective upon the issuance of such securities to the Stockholders
pursuant to the Merger Agreement. Certain capitalized terms used in this
Agreement are defined in Section 3 hereof; references to sections shall be to
sections of this Agreement.
2. Registration Under Securities Act, Etc.
2.1 Shelf Registration.
(a) The Company shall file with the Commission, (i) promptly but not
later than the 10th business day after the date hereof, a registration statement
(the "Initial Registration Statement") on Form S-3 (or a successor form)
covering the resale to the public by the holders of the Initial Shares and (ii)
promptly, but not later than the 10th business day after issuance of any
Contingent Shares, a registration statement on Form S-3 (or a successor form)
covering the resale to the public by the holders of such Contingent Shares (the
"Contingent Registration Statement"). For purposes of this Article 2, the
Initial Registration Statement and the Contingent Registration Statement shall
each be referred to herein as a "Registration Statement".
(b) Except as otherwise expressly provided herein, the Company shall use
commercially reasonable efforts to cause each Registration Statement to be
declared effective and shall keep each of the Initial Registration Statement and
the Contingent Registration Statement, respectively, continuously effective
under the Securities Act until the earlier of (i) two (2) years from the
issuance, respectively, of the Initial Registered Shares and the Contingent
Shares, or (ii) such date that all of the Registrable Securities registered
thereunder have been sold.
2.2 Registration Procedures. If and whenever the Company is required to use
commercially reasonable efforts to effect the registration of any Registrable
Securities under the Securities Act as provided herein, the Company shall:
(a) prepare and file with the Commission an appropriate form of
registration statement and such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement, and use commercially reasonable efforts to cause the registration
statement, and each such amendment and supplement, to become and remain
effective, as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement;
(b) furnish to the holders of Registrable Securities (the "Holders")
covered by such Registration Statement such reasonable number of copies of a
prospectus, including a preliminary prospectus, Registration Statements, and any
amendments (in each case, including all exhibits) in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
(c) use commercially reasonable efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such states and jurisdictions as shall be reasonably requested
by the Holders, to cause all Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the Holders to consummate the disposition of such Registrable
Securities, to keep such registrations or qualifications in effect for so long
as such Registration Statement remains in effect and do any and all other acts
and things that may be necessary to enable the Holders to consummate in such
states the public sale or other disposition of the Registrable Shares owned by
the Holders, including (subject to Section 5.8 of the Merger Agreement) the
removal of legends from certificates registered pursuant to such Registration
Statement (and to the end of removing the legend from certificates, if the
Company is required to do so by the Company's transfer agent and the facts
underlying the sale are made available to the Company's counsel by way of
representations reasonably acceptable to such counsel, the Company shall deliver
to its transfer agent an opinion of counsel in form and substance reasonably
acceptable to the transfer agent and reasonably capable of being given by such
counsel (with a copy to such Holder)); except that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or file a general consent to service of process in any such state or
jurisdiction;
(d) notify each Holder covered by a Registration Statement, at any time
when a prospectus relating thereto covered by such Registration Statement is
required to be delivered under the Securities Act, of (i) the issuance by the
Commission of a stop order suspending the effectiveness of any Registration
Statement or the initiation of proceedings with respect to any Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (ii) the occurrence
of any event or the existence of any fact (a "Material Event") as a result of
which any Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or any prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the
-2-
circumstances under which they were made, not misleading, or (iii) the
occurrence or existence of any pending corporate development that, in the
discretion of the Company, makes it appropriate to suspend the availability of
any Registration Statement and the related prospectus. Upon the occurrence of
any of (i), (ii), or (iii), then (A) in the case of clause (ii) above, subject
to the next sentence, the Company shall as promptly as practicable prepare and
file a post-effective amendment to such Registration Statement or a supplement
to the related prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into
such Registration Statement and prospectus so that such Registration Statement
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and such prospectus does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use all reasonable efforts to cause it to be
declared effective as promptly as is reasonably practicable, and (B) give notice
to the Holder of any Registrable Securities that the availability of any
Registration Statement is suspended (a "Deferral Notice") and, upon receipt of
any Deferral Notice, each Stockholder (on behalf of itself and any other Holder
to which it has transferred such Registrable Securities) agrees not to sell any
Registrable Securities pursuant to the Registration Statement until such
Holder's receipt of copies of the supplemented or amended prospectus provided
for in clause (A) above, or until it is advised in writing by the Company that
the prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such prospectus. The Company will use all reasonable efforts to ensure that
the use of the prospectus may be resumed (x) in the case of clause (i) above, as
promptly as is practicable, (y) in the case of clause (ii) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as reasonably
practicable thereafter and (z) in the case of clause (iii) above, as soon as, in
the discretion of the Company, such suspension is no longer appropriate. The
period during which the availability of any Registration Statement and any
prospectus is suspended shall not exceed forty-five (45) days in any three (3)
month period or ninety (90) days in any twelve (12) month period;
(e) promptly apply for listing and list the Registrable Securities being
registered on any national securities exchange on which a class of the Company's
equity securities is listed;
(f) promptly notify the Holders at the addresses identified on Exhibit A
and confirm such advice in writing promptly thereafter: (a) when the
Registration Statement, the prospectus or any prospectus supplement related
thereto or post-effective amendment to the Registration Statement has been
filed, and, with respect to the Registration Statement or any post-effective
amendment thereto, when the same has become effective; (b) of any request by the
Commission for amendments or supplements to the Registration Statement or the
prospectus or for additional information; (c) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings by any Person for that purpose; and (d) of the
receipt by the Company of any notification with respect to the
-3-
suspension of the qualification of any Registrable Securities for sale under the
securities or blue sky laws of any jurisdiction or the initiation or threat of
any proceeding for such purpose; and
(g) upon the reasonable request of a Holder that is a member of the Board
of Directors of the Company for the sole purpose of enabling such Holder to sell
Registrable Securities under either Registration Statement pursuant to a
transaction reasonably acceptable to the Company under which such Holder is
legally required to deliver an opinion of counsel or an accountant's "comfort
letter" or similar "agreed-upon-procedures letter" in order to consummate such
transaction, furnish to such Holder a signed counterpart, addressed to such
Holder, of (x) an opinion of counsel for the Company reasonably satisfactory in
form and substance to such Holder and the Company, and (y) a "comfort letter"
(or in the case of any such Person which does not satisfy the conditions for
receipt of a "comfort letter" specified in Statement on Auditing Standards No.
72, an "agreed-upon procedures" letter) signed by the independent public
accountants who have certified the Company's financial statements included in
such Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the prospectus included therein)
and, in the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities (with, in the case of an "agreed
upon procedures" letter, such modifications or deletions as may be required
under Statement of Auditing Standards No. 35).
2.3 Preparation; Reasonable Investigation. The Company will not file any
Registration Statement or amendment thereto or any prospectus or any supplement
thereto (including such documents incorporated by reference and proposed to be
filed after the initial filing of a Registration Statement) to which the
Stockholders' Representative (as defined in the Merger Agreement) shall
reasonably object, provided that the Company, after allowing the Holders an
opportunity to review such filing pursuant to this Section 2.3, may file such
document in a form required by law or upon the written advice of its counsel.
Subject to the foregoing sentence, in connection with the preparation and filing
of each Registration Statement under the Securities Act pursuant to this
Agreement, the Company will give the Holders, their underwriters, if any, and
their respective counsel and accountants, the opportunity to participate (by
delivery of written comments from the Stockholders' Representative to the
Company) in the preparation of such Registration Statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them (through the Stockholders'
Representative) such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
2.4 Requirements of Stockholders.
(a) It shall be a condition precedent to the obligations of the Company
to take any action pursuant to this Article 2 in respect of the Registrable
Securities of any selling Holder that such selling Holder shall furnish to the
Company such information regarding itself, the Registrable
-4-
Securities held by it, and the intended method of disposition of such
Registrable Securities as shall be required to effect the registration of such
Registrable Securities. To the extent a Holder fails to provide such information
in a timely manner, and if the Company determines it appropriate, the Company
may delay the filing of any such Registration Statement until the Holder
provides such information.
(b) No Holder shall distribute any prospectus or make any offer to sell
(or solicit any offer to purchase) or sell any Registrable Securities in a
transaction covered by a prospectus from and after the time that the Company
notifies the Holder that the prospectus fails to state a material fact, contains
a material misstatement or fails to state a fact necessary in order to make the
statements included in the prospectus not misleading until the Company has
provided a revised, amended or supplemented prospectus that corrects the
misstatement or omission.
(c) Each Holder shall comply with the prospectus delivery requirements of
the Securities Act in connection with offers to sell, solicitations of offers to
purchase, and sales of Registrable Securities in connection with any offer or
sale pursuant to a Registration Statement.
2.5 Expenses of Registration. The Company shall bear all expenses incurred in
connection with each registration, filing or qualification of Registrable
Securities pursuant to Section 2.1, including all registration, filing and
qualification fees, exchange listing fees, state securities law fees and
expenses, printing and accounting fees, fees and disbursements of counsel for
the Company, and fees and disbursements not to exceed $10,000 for each of the
Initial Registration Statement and the Contingent Registration Statement of one
counsel for the selling Holders. Any underwriting discounts and commissions (for
brokers or other intermediaries) relating to Registrable Securities included in
any registration effected pursuant to Section 2.1 and the fees and disbursements
of additional selling Holders' counsel will be borne and paid by the Holders.
2.6 Indemnification.
(a) The Company will, and hereby agrees to, indemnify and hold harmless
each selling Holder, the officers, directors, partners, agents and employees of
each selling Holder, any underwriter (as defined in the Securities Act) for such
Holder and each Person, if any, who controls such selling Holder or underwriter
within the meaning of the Securities Act or the Exchange Act and their agents
(collectively, the "Holder Indemnitees"), against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or any other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any Violation. The indemnity agreement contained
in this Section 2.6(a) shall not apply to amounts paid in settlement of any
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable to any Holder Indemnitee in any such case for
any such loss, claim, damage, liability or action (i) to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of such Holder Indemnitee; or (ii) in the
case of a sale directly by a Holder (including a sale of such Registrable
Securities through any underwriter retained by such selling Holder engaging in a
distribution solely on behalf of such
-5-
Holder), such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus, and such Holder failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Securities to the Person asserting any such loss, claim, damage or
liability in any case in which such delivery is required by the Securities Act.
(b) Each Stockholder and Holder who has succeeded to the obligations of a
Stockholder hereunder which includes any Registrable Securities in any
Registration Statement (i) will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed a Registration Statement,
each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, each agent and any underwriter for the
Company, and any other selling Holder or other shareholder selling securities in
such registration statement or any of its directors, officers, partners, agents
or employees or any Person who controls such selling Holder or such other
shareholder or such underwriter (collectively, the "Company Indemnitees"),
against any losses, claims, damages or liabilities (joint or several) to which
any Company Indemnitee may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by or on behalf of such selling Holder expressly for use in connection
with such registration; provided, however, that the liability of any selling
Holder hereunder shall be limited to the amount of net proceeds (after deduction
of all underwriters' discounts and commissions paid by such Holder in connection
with the registration in question) received by such selling Holder in the
offering giving rise to the Violation; and provided, further that the indemnity
agreement contained in this Section 2.6(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such selling Holder (which consent
shall not be unreasonably withheld) nor, in the case of a sale directly by the
Company of its securities (including a sale of such securities through any
underwriter retained by the Company to engage in a distribution solely on behalf
of the Company), shall such selling Holder be liable to the Company in any case
in which such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus, and the Company failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
securities to the Person asserting any such loss, claim, damage or liability in
any case in which such delivery is required by the Securities Act.
(c) Promptly after receipt by any Company Indemnitee or Holder Indemnitee
(collectively, the "Indemnitees") under this Section 2.6 of notice of the
commencement of any action (including any governmental action), such Indemnitee
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 2.6, deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume and control the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that such Indemnitee shall have the right to retain its own counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such Indemnitee by the counsel retained by the indemnifying
party would be inappropriate due to actual or potential differing interests, as
reasonably determined by either
-6-
party, between such Indemnitee and any other party represented by such counsel
in such proceeding. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action, if
materially prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the Indemnitee under this Section 2.6 to
the extent of such prejudice, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability that it may have to
such Indemnitee otherwise than under this Section 2.6.
(d) The obligations of the Company and the Holders under this Section 2.6
shall survive the completion of any offering of Registrable Securities in a
Registration Statement whether under this Article 2 or otherwise.
(e) If the indemnification provided for in this Section 2.6 is
unavailable to a party that would have been an Indemnitee under this Section 2.6
in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to herein, then each party that would
have been an indemnifying party hereunder shall, in lieu of indemnifying such
Indemnitee, contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative fault of such indemnifying party, on the one hand, and such
Indemnitee, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof). The relative fault shall be determined by
reference to, among other things, whether the Violation relates to information
supplied by such indemnifying party or such Indemnitee and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The parties agree that it would not be just and equitable if
contribution pursuant to this Section 2.6(e) 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 the preceding sentence. The amount
paid or payable by a contributing party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above in this Section 2.6(e) shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. 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. The liability of any Holder of Registrable
Securities in respect of any contribution obligation of such Holder (after
deduction of all underwriters' discounts and commissions paid by such Holder in
connection with the registration in question) arising under this Section 2.6(e)
shall not in any event exceed an amount equal to the net proceeds to such Holder
from the disposition of the Registrable Securities disposed of by such Holder
pursuant to such registration.
3. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
3.1 Commission: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
3.2 Common Stock: As defined in Section 1.
-7-
3.3 Company: As defined in the introductory paragraph of this Agreement.
3.4 Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder.
3.5 Holders: As defined in Section 2.2
3.6 Registrable Securities: The Initial Shares, any Contingent Shares and any
shares of Commons Stock or other capital stock of the Company issued or issuable
with respect to any Initial Shares or Contingent Shares by way of stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such Registration
Statement, (b) they shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (c) they shall have
been otherwise transferred and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any similar
state law then in force, or (d) they shall have ceased to be outstanding.
3.7 Person: A corporation, an association, a partnership, an organization,
business, an individual, a governmental or political subdivision thereof or a
governmental agency.
3.8 Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
3.9 Violation: with respect to any Registration Statement which includes any
Registrable Securities:
(a) any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto;
(b) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; or
(c) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law in connection with any matter relating to such Registration Statement.
4. Reports Under Securities Exchange Act of 1934.
4.1 With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act ("Rule 144") and any other rule or
regulation of the Commission that may at any time permit a Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
-8-
(a) use commercially reasonable efforts to make and keep public
information available, as those terms are understood and defined in Rule 144, at
all times;
(b) use commercially reasonable efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to any Holder upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and documents of
the Company as such Holder may reasonably request to avail itself of any similar
rule or regulation of the Commission allowing it to sell any such securities
without registration.
5. Course of Dealing; Amendments, Waivers and Consents. No course of dealing
between the parties shall operate as a waiver of any party's rights under this
Agreement. Each party acknowledges that if any party, without being required to
do so by this Agreement, gives any notice or information to, or obtains any
consent from, the other party, such party shall not by implication have amended,
waived or modified any provision of this Agreement, or created any duty to give
any such notice or information or to obtain any such consent on any future
occasion. No delay or omission on the part of any party in exercising any right
under this Agreement shall operate as a waiver of such right or any other right
hereunder or thereunder. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right or remedy on any future occasion. No amendment,
waiver or consent with respect to this Agreement shall be binding unless it is
in writing and signed by each of the Company and the Stockholders'
Representative.
6. Nominees for Beneficial Owners. In the event that any Registrable Securities
are held by a nominee for the beneficial owner thereof, the beneficial owner
thereof may, at its election, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or holders
of Registrable Securities pursuant to this Agreement. If the beneficial owner of
any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
7. Notices. Except as otherwise provided in this Agreement, all notices,
requests and other communications to any Person provided for hereunder shall be
in writing and shall be given to such Person (a) in the case of a party hereto,
addressed to such party in the manner set forth in the Merger Agreement or at
such other address as such party shall have furnished to the Company in writing,
or (b) in the case of any other holder of Registrable Securities, at the address
that such holder shall have furnished to the Company in writing, or, until any
such other holder so furnishes to the Company an address, then to and at the
address of the last holder of such Registrable Securities who has furnished an
address to the Company. Each such notice, request or other communication shall
be sufficiently given if in writing and delivered in person, transmitted by
facsimile transmission (fax) or sent by registered or certified mail (return
receipt requested) or recognized overnight delivery service postage pre-paid. A
notice or communication will be effective (i) if delivered in person or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
telecopier, on the business day of actual
-9-
confirmed receipt by the addressee thereof, and (iii) if sent by registered or
certified mail, three (3) business days after dispatch.
8. Assignment. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and to each Stockholder's respective
successors and assigns; provided that any such successor or assignee agrees in
writing to be bound by the provisions hereof. In addition, and whether or not
any express assignment shall have been made, the provisions of this Agreement
which are for the benefit of the parties hereto other than the Company shall
also be for the benefit of and enforceable by any subsequent holder of any
Registrable Securities.
9. Descriptive Headings. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for reference only and shall not limit
or otherwise affect the meaning hereof.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF DELAWARE WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
11. Counterparts. This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
12. Entire Agreement. This Agreement and the Merger Agreement embody the entire
agreement and understanding between the Company and each other party hereto
relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. To the extent of any conflict or
inconsistency between any provision of this Agreement and any provision of the
Merger Agreement, the provision of this Agreement shall control; provided,
however, that in no event shall the provisions of this Agreement affect the
restrictions set forth in Section 5.8 of the Merger Agreement.
13. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR OF THE
UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE COMPANY HEREBY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH PARTY HERETO HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF TO SUCH
PARTY BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PARTY AT ITS ADDRESS SPECIFIED IN SECTION 7. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE
-10-
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
14. Severability. If any provision of this Agreement, or the application of such
provisions to any Person or circumstance, shall be held invalid, the remainder
of this Agreement, or the application of such provision to Persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
[Signatures on Following Page]
-11-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
NAVIGANT INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Over, Jr.
Name: Xxxxxx X. Over, Jr.
Title: Vice President
GENERAL ELECTRIC PENSION TRUST
By: GE Asset Management Incorporated,
its investment manager
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
STUART MILL, LLC
By: its Manager: Stuart Mill Capital, Inc.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President
AMBASSADORS INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Chief Executive Officer
XXXXX INVESTMENT LIMITED
PARTNERSHIP
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: General Partner
