EXHIBIT 10.1
November 23, 2004
UTi WORLDWIDE INC.
0 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Virgin Islands
Re: REGISTRATION RIGHTS AGREEMENT
Ladies and Gentlemen:
Supply Solutions Limited ("SSL"), a British Virgin Islands corporation,
proposes to merge (the "MERGER") with United Service Technologies Limited
("UNISERV") as set forth in the plan of merger (the "PLAN OF MERGER") in terms
of the International Business Act 1984 (Cap 291) of the British Virgin Islands.
In connection with the Merger, SSL will enter into certain Credit Agreements
(collectively, the "CREDIT FACILITIES"), each dated as of November 23, 2004,
between SSL and each of the dealers separately identified to UTi (as defined
below) by Uniserv (together, the "DEALERS"). Upon the consummation of the
Merger, Uniserv will assume all the obligations under the Credit Facilities and
the Dealers, subject to the conditions set forth therein, will make certain
loans (collectively, the "LOANS") thereunder in order to provide certain funds
for the Merger.
Among the conditions precedent set forth in the Credit Facilities prior to
the making any of the Loans, are that Uniserv shall have (i) entered into
certain collar transactions (the "COLLARS") between itself and each of the
Dealers relating to ordinary shares, no par value per share (the "SHARES"), of
UTi Worldwide Inc. ("UTi"), (ii) satisfied the collateral requirements under the
Credit Facilities by, among other things, pledging the aggregate number of
Shares underlying the Collars, which such number of Shares will not exceed
6,621,188 Shares, or up to 7,613,217 Shares if the Dealers exercise their option
to increase the size of the Collars as set forth therein (such amount, as it may
be increased, (collectively, the "NUMBER OF SHARES") and (iii) consummated
transactions relating to the Offered Shares (as defined below), as described in
the next succeeding paragraph. It is expected that Uniserv will satisfy the
collateral requirement described in clause (ii) of the preceding sentence by
pledging the requisite amount of Shares out of approximately 9,269,345 Shares
that Uniserv currently owns.
In order to hedge the Dealers' exposure under the Collars, the Dealers
intend to borrow Shares from either (i) unaffiliated third party lenders and/or
(ii) Union-Transport Holdings Inc., PTR Holdings Inc., Xx. Xxxxxxx X. Xxxxxxx or
an entity wholly owned by him, Xx. Xxxx X. Xxxxxx (collectively, the "AFFILIATED
LENDERS") each of which is currently an "affiliate" of UTi within the meaning of
Rule 144 promulgated under the Securities Act. The aggregate amount of such
borrowed Shares will be equal to the Number of Shares (such borrowed shares
described in clauses (i) and (ii) of the preceding sentence, the "HEDGE SHARES")
and the Dealers intend to sell the Hedge Shares in transactions registered under
the Securities Act. A portion of the Hedge Shares will be underwritten by the
Dealers or their affiliates (in such capacity, collectively, the "UNDERWRITERS")
in a fixed price underwritten offering under the Securities Act (the "OFFERED
SHARES") and the remaining portion will be sold in transactions that are not
fixed price underwritten offerings (the "ADDITIONAL SHARES").
For other good and valuable consideration the sufficiency of which is
hereby acknowledged by the parties hereto, the parties hereto, intending to be
legally bound, enter into this agreement (this "AGREEMENT").
SECTION 1 . Definitions.
As used in this Agreement, the following defined terms shall have the
following meanings.
"BUSINESS DAY" means a day that, in The City of New York, is not a day on
which banking institutions are authorized or required by law or regulation to
close.
"AFFILIATED LENDERS" has the meaning set forth in the introductory
paragraphs hereto.
"COLLARS" has the meaning set forth in the introductory paragraphs hereto.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMITTED AVAILABILITY DATE" means the date that is fifteen months from
the Offered Shares Closing Date.
"DEALERS" has the meaning set forth in the introductory paragraphs hereto.
"DELAY PERIOD" means the period of time determined in good faith by UTi's
board of directors during which UTi would be required to disclose in the
Registration Statement or Prospectus, or any amendment or supplement thereto,
material non-public information, including, but not limited to, a pending or
contemplated acquisition or merger or other transaction or similar event and
UTi's board of directors determines in good faith that it has a bona fide
business purpose for keeping confidential and non-public such information or the
disclosure of such information could have a detrimental effect on UTi; provided
that in no event will any such Delay Period (i) commence or be continuing during
the 5 Trading Day period beginning on the Offered Shares Closing Date, and (ii)
exceed, in the aggregate with all prior Delay Periods, a period of time such
that the number of days from the Offered Shares Closing Date to and including
the
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Committed Availability Date on which the Registration Statement and Prospectus
was available to the Dealers for sales of Additional Shares (excluding the
period set forth in clause (i) of the definition) is less than, in the
aggregate, (x) eight calendar weeks and (y) 10 Trading Days for every Trading
Day during the period beginning on the sixth Trading Day following the Offered
Shares Closing Date to and including the tenth Trading Day following the Offered
Shares Closing Date on which the Registration Statement and Prospectus were
unavailable to the Dealers for sales of Additional Shares.
"EFFECTIVENESS END DATE" means the earlier to occur of: (i) the date when
the Underwriters have disposed of the Offered Shares and the Dealers have sold
the Additional Shares, in each case under the Registration Statement and (ii)
March 31, 2005, subject to extension as set forth in Section 2(c) below.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section 2(b) hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HEDGE SHARES" has the meaning set forth in the introductory paragraphs
hereto.
"OFFERED SHARES CLOSING DATE" means the date the sale of Offered Shares
(without giving effect to any over-allotment option) is consummated.
"PROSPECTUS" means the prospectus relating to (i) the short sale of the
Hedge Shares and (ii) if the Hedge Shares are borrowed from any Affiliated
Lender, such borrowing from such Affiliated Lender and short sale of such Hedge
Shares, in each case that is included in the Registration Statement, as amended
or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"RELEVANT EXCHANGE" means the principal United States national securities
exchange or automated quotation system on which the Shares are listed or quoted.
"REGISTRATION STATEMENT" means a registration statement on Form S-3 filed
with the Commission pursuant to Rule 415 under the Securities Act, which
registration statement shall provide for the public sale of the Hedge Shares, in
each case as provided for herein and under the methods of distribution described
in the relevant Prospectus for the Hedge Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" has the meaning set forth in the introductory paragraphs hereto.
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"TRADING DAY" means any day on which the Relevant Exchange is scheduled to
open the trading for its regular trading session, other than any day (i) on
which the Relevant Exchange fails to open for trading during its regular trading
session or closes prior to its scheduled closing time, (ii) on which any systems
disruption event that materially interrupts or impairs the ability of the market
participants in general to effect transactions in, or obtain market values for,
the Shares on the Relevant Exchange or (iii) on which any suspension or
limitation imposed on trading, by the Relevant Exchange or otherwise, relating
to the Shares on the Relevant Exchange.
"UNDERWRITING AGREEMENT" has the meaning set forth in Section 3(b)(ii)(A)
hereof.
"UNDERWRITERS" has the meaning set forth in the introductory paragraphs
hereto.
"UTi" has the meaning set forth in the introductory paragraphs hereto.
SECTION 2 . Shelf Registration.
(a) Registration Statement. On the date hereof, UTi shall make the initial
filing with the Commission under the Securities Act of the Registration
Statement in a form that was reviewed by Uniserv, the Dealers, the Underwriters
and their respective counsel. As required by Section 3(a)(iii), UTi will use its
commercially reasonable efforts to file with the Commission any pre-effective
amendments to such Registration Statement. UTi shall use its commercially
reasonable efforts to cause the Registration Statement, as amended, to be
declared effective by the Commission as soon as practicable after consummation
of the Merger but in no circumstances later than January 3, 2005 (subject to any
review by the Commission).
(b) Continuous Effectiveness. UTi shall use its commercially reasonable
efforts to keep the Registration Statement continuously effective, supplemented
and amended as required by the provisions of this Agreement to the extent
necessary to ensure that (1) it is available for public sales by the
Underwriters of the Offered Shares, (2) it is available for sales by the Dealers
of the Additional Shares and (3) it conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the Commission
promulgated thereunder as announced from to time, for a period (the "EFFECTIVE
PERIOD") beginning on the date of effectiveness of the Registration Statement
and ending on the Effectiveness End Date.
(c) Deferral. Notwithstanding anything to the contrary contained in this
Agreement, only after the Offered Shares Closing Date, UTi shall be permitted,
by notice to Uniserv and the Dealers, to defer its obligation to keep the
Registration Statement continuously effective, supplemented and amended as
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required by this Agreement, and to suspend the effectiveness and use of the
Registration Statement or suspend sales of Shares pursuant to the Registration
Statement, during any Delay Period. In addition, UTi shall not be required to
prepare any financial statements for inclusion or incorporation by reference in
the Registration Statement, or any amendment or supplement thereto, prior to the
time period such financial statements would otherwise be required to be filed
with the Commission. If (x) any such Delay Period occurs, or (y) for any reason
the Prospectus and Registration Statement are not available to the Dealers for
the sale of Additional Shares (except in the case of clause (y), if the
unavailability of the Prospectus or Registration Statement is due to a failure
by Uniserv, the Dealers, the Underwriters or any Affiliated Lender to provide
information to be included in such Prospectus or Registration Statement in
accordance with the provisions of this Agreement, the Underwriting Agreement or
any registration rights agreement or similar agreement entered into between UTi
and the Affiliated Lenders), therein each date specified in clause (ii) of the
Effectiveness End Date shall be extended by the period of such Delay Period or
for such period that the Prospectus and Registration Statement was not available
to the Dealers for the sale of Additional Shares.
(d) Preliminary Prospectus. UTi shall use its commercially reasonable
efforts to print and make available to the Underwriters a preliminary
supplemental prospectus in such quantities and on such date as will enable the
Underwriters to prepare for, attend and host meetings with prospective
purchasers of the Offered Shares. Such date to be no later than the date on
which the Underwriters and UTi commence management meetings in preparation to
attend and host such meetings with prospective purchasers.
(e) Further Assurances. Uniserv, the Dealers and the Underwriters agree
not to use the Registration Statement or Prospectus for any purpose other than
pursuant to the transactions described in the first three introductory
paragraphs of this Agreement.
SECTION 3 . Registration of the Hedge Shares.
(a) UTi covenants and agrees with Uniserv for the benefit of the Dealers
(subject to Section 10) as follows:
(i) From the date hereof until the end of the Effectiveness Period,
prior to amending or supplementing the Registration Statement or the
related Prospectus, UTi shall furnish to Uniserv and the Dealers for
review a copy of each such proposed amendment or supplement, and UTi shall
not file any such proposed amendment or supplement without the consent of
Uniserv and the Dealers, which consent shall not be unreasonably withheld
or delayed.
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(ii) From the date hereof until the end of the Effectiveness Period,
UTi shall promptly advise Uniserv and the Dealers in writing (A) of the
receipt of any comments of, or requests for additional or supplemental
information from, the Commission regarding the Registration Statement, (B)
of the time and date of any filing of any post-effective amendment to such
Registration Statement or any amendment or supplement to any related
preliminary prospectus or the related Prospectus, (C) of the time and date
that any post-effective amendment to such Registration Statement becomes
effective, (D) of the occurrence of any event or the existence of any
condition as a result of which it is necessary to amend or supplement the
related Prospectus so that such Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when the Prospectus is delivered to a purchaser
of Hedge Shares, not misleading, and (E) of the issuance by the Commission
of any stop order suspending the effectiveness of such Registration
Statement or any post-effective amendment thereto or of any order
preventing or suspending the use of any related preliminary prospectus or
the related Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Shares from the Relevant Exchange,
or of the threatening or initiation, in each case, in writing of any
proceedings for any of such purposes. If the Commission shall enter any
such stop order at any time, UTi shall use its commercially reasonable
efforts to obtain the lifting of such order as soon as practicable.
Additionally, UTi agrees that it shall comply with the provisions of Rules
424(b), 430A and 434, as applicable, under the Securities Act and will use
its commercially reasonable efforts to confirm that any filings made by
UTi under such Rule 424(b) were received in a timely manner by the
Commission.
(iii) Subject to Section 2(c), if, during the period from the date
hereof to the end of the Effectiveness Period, any event shall occur or
condition exist as a result of which it is necessary to amend or
supplement the related Prospectus or Registration Statement, including by
means of a pre-effective amendment to the Registration Statement, so that
such Prospectus or Registration Statement, as applicable, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when the Prospectus is delivered
to a purchaser of Hedge Shares, not misleading, or if in the reasonable
opinion of UTi, Uniserv or the Dealers it is otherwise necessary to amend
or supplement such Prospectus or Registration Statement, as applicable, to
comply with law, UTi agrees to use commercially reasonable efforts to
promptly prepare, file with the Commission and furnish to Uniserv and the
Dealers amendments or
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supplements to such Prospectus or Registration Statement, as applicable,
so that the Prospectus or Registration Statement, as applicable, as so
amended or supplemented, (i) will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when the Prospectus is delivered to a purchaser of Hedge Shares,
not misleading, or (ii) otherwise complies with law, as applicable.
(iv) UTi shall use its commercially reasonable efforts to file, on a
timely basis, with the Commission and the Relevant Exchange all reports
and documents required to be filed under the Exchange Act or the rules of
the Relevant Exchange.
(b) Registration Procedures.
(i) Subject to Section 2(c) hereof, during the Effectiveness Period,
UTi shall as promptly as practicable following demand by Uniserv or the
Dealers (subject to Section 10) (but in no event later than seven Business
Days following such demand) use its commercially reasonable efforts to:
(A) if required by applicable law, to file with the Commission
a post-effective amendment to the Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the
Dealers are named as selling securityholders in the Registration
Statement and the related Prospectus in such a manner as to permit
the Underwriters to deliver such Prospectus to purchasers of the
Hedge Shares and Dealers to deliver such Prospectus to purchasers of
the Additional Shares in accordance with applicable law (provided
that the Dealers shall provide UTi all information with respect to
the Dealers or the Collars and Uniserv shall provide UTi all
information with respect to itself, the Loans and the Merger, in all
cases as required by the rules and regulations promulgated by the
Commission to be included in the Registration Statement) and, if UTi
shall file a post-effective amendment to the Registration Statement,
use its commercially reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as
promptly as is practicable;
(B) provide Uniserv and the Dealers copies of any documents
filed pursuant to clause (A) above; and
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(C) notify Uniserv and the Dealers as promptly as practicable
after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to clause (A) above.
(ii) Subject to Section 2(c) hereof, in connection with the sale of
Hedge Shares by the Dealers and the Underwriters pursuant to the
Registration Statement and any related Prospectus, UTi shall use its
commercially reasonable efforts to (and for purposes of subparagraph (A),
UTi, Uniserv and the Underwriters shall):
(A) in good faith, negotiate the form of an underwriting
agreement among UTi, Uniserv, the Dealers and the Underwriters (the
"UNDERWRITING AGREEMENT"), no later than December 15, 2004, provided
that the form of Underwriting Agreement shall be satisfactory to
each of the parties thereto in their sole discretion and shall
contain provisions in the form attached as Annex A hereto with such
changes as are satisfactory to all the parties thereto in their sole
discretion and will include provisions for delivery of opinions and
comfort letters to the Underwriters in a form to be satisfactory to
each of the parties thereto in their sole discretion and provided,
further, that following December 15, 2004, the form of an
Underwriting Agreement shall be subject to change directly related
to (i) the completion of a customary due diligence review in scope
and with results satisfactory to the Underwriters and (ii) any
change in transaction structure;
(B) enter into the Underwriting Agreement referred to in
subparagraph (A); provided that any change made to the Underwriting
Agreement pursuant to the second proviso in subparagraph (A) above
shall be reasonably satisfactory to UTi in its sole discretion;
(C) cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 under the Securities Act, and to comply fully with the
applicable provisions of Rule 424 and Rule 430A under the Securities
Act;
(D) cause to be delivered by Deloitte & Touche LLP,
independent public or certified public accountants for UTi,
accountants' "comfort" letters to the Underwriters and Dealers on
the date of the Underwriting Agreement and on each closing date
under the Underwriting Agreement, and to the Dealers through the
Effectiveness End Date on each date thereafter on which the
Registration Statement or Prospectus is amended or supplemented
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(other than, for the avoidance of doubt, any submission which is
"furnished" and not "filed" under the Exchange Act) in accordance
with the Underwriting Agreement (but with appropriate changes to
reflect the delivery of such "comfort" letter as of such date on
which the Registration Statement or Prospectus is amended or
supplemented);
(E) cause to be delivered opinions and letters of counsel to
the Underwriters and the Dealers on each closing date under the
Underwriting Agreement and to the Dealers through the Effectiveness
End Date on each date thereafter on which the Registration Statement
or Prospectus is amended or supplemented (other than, for the
avoidance of doubt, any submission which is "furnished" and not
"filed" under the Exchange Act) for UTi in accordance with the
Underwriting Agreement (but with appropriate changes to reflect the
delivery of such opinions and letters of counsel as of such date on
which the Registration Statement or Prospectus is amended or
supplemented);
(F) cause to be delivered officers' certificates to the
Underwriters and the Dealers on each closing date under the
Underwriting Agreement and to the Dealers through the Effectiveness
End Date on each date thereafter on which the Registration Statement
or Prospectus is amended or supplemented (other than, for the
avoidance of doubt, any submission which is "furnished" and not
"filed" under the Exchange Act) in accordance with the Underwriting
Agreement (but with appropriate changes to reflect the delivery of
such officers' certificates as of such date on which the
Registration Statement or Prospectus is amended or supplemented);
(G) upon reasonable demand by the Underwriters and the
Dealers, make available at reasonable times for inspection by the
Underwriters and the Dealers and attorneys or accountants for the
Underwriters and the Dealers, all relevant financial and other
records, pertinent corporate documents and properties of UTi (except
as prohibited by law or contractual restriction; provided that UTi
shall use its commercially reasonable efforts to obtain a waiver or
consent and the Underwriters and the Dealers shall have agreed to
any required confidentiality agreement in connection therewith) as
shall be reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act
customary in scope for underwritten offerings of equity securities,
and cause UTi's officers, directors, managers and employees to
supply all relevant information (except as prohibited by law or
contractual restriction; provided
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that UTi shall use its commercially reasonable efforts to obtain a
waiver or consent and the Underwriters and the Dealers shall have
agreed to any required confidentiality agreement in connection
therewith) reasonably requested by any such Underwriter or Dealer,
attorney or accountant in connection therewith (including without
limitation the opportunity to speak with, and ask questions of,
senior management, counsel and accountants to UTi); and
(H) promptly incorporate in the Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information regarding the Dealers or the
Underwriters as they may reasonably request to have included
therein, including, without limitation, information relating to the
plan of distribution of the Hedge Shares.
SECTION 4 . Obligations Of Uniserv and the Dealers (subject to Section
10).
Uniserv, and following the execution of the Underwriting Agreement, the
Dealers agree that: (i) upon receipt of any notice from UTi of the occurrence of
any event specified in Sections 3(a)(ii)(A), 3(a)(ii)(D), 3(a)(ii)(E) or
3(a)(iii) hereof or any notice of a Delay Period, they acknowledge that the
Registration Statement will be suspended and they will not be permitted to sell
any Shares pursuant to the Registration Statement, until they have received
copies of the supplemented or amended Prospectus from UTi or until they are
advised in writing by UTi that the use of the applicable Prospectus may be
resumed, and they will notify and cause the Dealers and the Underwriters to
suspend the use of the Prospectus and, if so directed by UTi, they will destroy
all copies in their possession of the Prospectus included in such Registration
Statement at the time of receipt of such notice and (ii) if applicable, they
shall furnish to UTi such information regarding Uniserv, the Dealers, the
Underwriters, the Merger, the Collar Transactions and the arrangements between
them (and any changes to such information) as may be required by the Commission
to be included in the Registration Statement and UTi shall have no obligation to
cause the suspension of the registration statement to be lifted until such
information has been furnished to UTi.
SECTION 5 . Registration Expenses.
Subject to the Company's indemnification obligations under the
Underwriting Agreement and this Agreement, Uniserv shall bear and pay all out of
pocket expenses incurred by it and UTi in connection with any registration,
filing or qualification of Shares with respect to the Registration Statement or
otherwise pursuant to this Agreement and the Underwriting Agreement, including
without limitation (a) all registration, exchange, listing, accounting, filing,
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NASDAQ and NASD fees in connection therewith, (b) all fees and expenses incurred
in connection with complying with securities or blue sky laws, including those
incurred in connection with the registration of the Hedge Shares under the
Securities Act and the qualification of the Hedge Shares for sale under state or
blue sky laws, (c) all word processing, duplicating and printing expenses,
messenger and delivery expenses, including those incurred in connection with the
printing of the Prospectus, (d) the reasonable fees and expenses of Xxxxxx
Xxxxxxx & Co. Incorporated as financial advisor to the special committee of the
board of directors of UTi (which fees, up to the amount of $1,300,000 (including
fees previously paid to Xxxxxx Xxxxxxx & Co Incorporated under the letter
agreement between UTi and Uniserv dated November 18, 2004) and reasonable
expenses, are deemed reasonable), (e) with the consent of Uniserv, which consent
is not to be unreasonably withheld, other consultants, advisors and experts
retained by UTi incurred or paid by, or on behalf of UTi, (f) the reasonable
fees and disbursements of its counsel and of counsel for UTi (including all fees
and disbursements of counsel and advisors for the special committee), UTi's
independent public accountants, including those incurred with respect to
obtaining "comfort letters" required by or incident to such performance and
compliance, (g) any and all out of pocket travel expenses of UTi's officers and
employees and any other expenses of UTi in connection with attending or hosting
meetings with prospective purchasers of Hedge Shares, including the cost of any
aircraft chartered in connection with attending or hosting such meetings, (h)
expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) and (i) any underwriting
discounts and commissions and taxes of any kind (including, without limitation,
transfer taxes) relating to any disposition, sale or transfer of Hedge Shares.
Uniserv shall pay, within 10 days, all such expenses, fees and disbursements
upon receipt of written demand by UTi, provided that UTi shall provide a
reasonably detailed invoice therefor (setting forth in reasonable detail the
nature of reimbursable expenses, fees or reimbursements) together with
reasonable supporting documentation in connection with such written demand for
reimbursement. UTi shall not be required to provide invoice detail or supporting
documentation to the extent such detail or supporting documentation is
reasonably determined by counsel to UTi to be information protected by
attorney-client privilege.
SECTION 6 . Indemnification.
(a) The Company will indemnify and hold harmless Uniserv, its partners,
members, directors, officers and its affiliates and each person, if any, who
controls such person within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement
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thereto, or any related preliminary prospectus, 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 (in light of
the circumstances under which they were made, in the case of any prospectus) not
misleading, and will reimburse the foregoing for any out of pocket legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; 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 in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives (to be defined in the Underwriting Agreement), any
Dealer, the Affiliated Lenders or by Uniserv specifically for use therein as
provided hereunder, in the Underwriting Agreement or any registration rights
agreement or similar agreement entered into between UTi and the Affiliated
Lenders; provided, further, however, that with respect to any untrue statement
or alleged untrue statement in or omission or alleged omission from any
prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any of the foregoing in circumstances where the person
asserting such losses, claims, damages or liabilities purchased the Offered
Securities concerned to the extent that a prospectus relating to such Offered
Securities was required to be delivered by an Underwriter or Dealer, Uniserv,
any Affiliated Lender or any selling shareholder under the Act in connection
with such purchase and any such loss, claim, damage or liability results from
the fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Offered Securities, a copy of the
Prospectus (as amended or supplemented) in which such untrue statement or
omission shall have been corrected, if the Company had previously furnished
copies thereof to the Underwriters, Dealers, Uniserv, any Affiliated Lender or
any selling shareholder, as applicable, in accordance with its obligations
hereunder (such circumstances are herein referred to as a "PROSPECTUS DELIVERY
EVENT");
(b) Uniserv will indemnify and hold harmless the Company, its partners,
members, directors, officers, employees and its affiliates and each person, if
any, who controls such person within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
they may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 (in the light of the circumstances under which they were made, in the
case of any
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prospectus) not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by Uniserv specifically for use therein and identified
in the Underwriting Agreement as such information and agreed to by both parties
in their sole discretion or (ii) relates to the Merger, the Collar Transactions
or the Loans, other than losses, claims, damages, and liabilities attributable
to a decline in the Company's stock price resulting primarily from the
announcement by the Company of the transactions contemplated by those
agreements. Uniserv will reimburse the foregoing for any out of pocket legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
SECTION 7 . Termination.
The registration rights granted under this Agreement and UTi's obligations
hereunder shall terminate upon the earlier of (i) the date the Plan of Merger is
terminated for any reason or the proposed transaction is otherwise abandoned for
any reason, (ii) December 16, 2004 unless the Plan of Merger is approved by the
members (shareholders) of Uniserv by such date as required therein, (iii)
December 23, 2004 unless the Operative Date (as defined in the Plan of Merger)
has occurred by such date, (iv) the date that the Resolutive Condition (as
defined in the Plan of Merger) is exercised, (v) January 29, 2005, if the
Offered Shares Closing Date has not occurred on such date, (vi) a breach by the
Underwriters, Dealers or Uniserv of the securities laws or of any of their
material obligations under the Underwriting Agreement or hereunder or (vii) the
Effectiveness End Date. Such termination shall not modify or affect Uniserv's
obligations under Section 5 or Section 6 hereof, which shall survive such
termination.
SECTION 8 . Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO THE CHOICE OF LAW RULES THEREOF.
SECTION 9 . Submission To Jurisdiction.
Each of UTi and Uniserv hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby. Uniserv irrevocably appoints CT
Corporation, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, as its authorized agent in
the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to Uniserv by the person serving
the same to the
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address provided below, shall be deemed in every respect effective service of
process upon Uniserv in any such suit or proceeding. Uniserv further agrees to
take any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect until the end of the
Effectiveness Period.
SECTION 10 . Third Party Beneficiaries.
On and following the initial closing date under the Underwriting
Agreement, the Dealers shall become third party beneficiaries to the agreements
made hereunder by UTi, and, in addition to Uniserv, shall have the right to
enforce such agreements directly provided that they have agreed to perform and
do perform the obligations hereunder or as expressly provided herein with
respect to themselves.
SECTION 11 . Uniserv Representations.
In order to induce UTi to enter into this Agreement, Uniserv represents
and warrants to, and agrees with, UTi that (a) the Plan of Merger has been duly
and validly executed by the parties thereto, (b) as of the date hereof, all
material consents, approvals and authorizations required by any governmental
agency or body, or court, including JSE approval and Exchange Control approval
in connection with the transactions contemplated by the Plan of Merger will have
been obtained by Uniserv, (c) as of the date hereof, all corporate
authorizations relating to the Plan of Merger will have been obtained (other
than any approval of the Plan of Merger by the Uniserv shareholders), (d) it
will mail the Notice of Merger Meeting and Explanatory Statement to Uniserv
shareholders as of the date hereof and (e) it will provide, all information
related to itself, the Merger, the Collar Transactions and the Loans that is
required to be included in the Registration Statement and Prospectus so that
such documents with respect to such information do not contain an omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (with respect to such information in
light of the circumstances under which they were made, in the case of any
prospectus) not misleading.
SECTION 12 . Remedies.
Each of UTi and Uniserv acknowledges and agrees (i) that any failure by it
to comply with its obligations under this Agreement will result in material
irreparable injury to the other party and the Dealer for which there is no
adequate remedy at law; (ii) that it will not be possible to measure damages for
such injuries precisely; and (iii) that, in the event of any such failure, such
party or the Dealers may obtain such relief as may be required to specifically
enforce its obligations under this Agreement. To the extent permitted by law,
UTi further agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate. Notwithstanding anything to the contrary
herein, UTi
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may not specifically enforce any provision with Uniserv to the extent Uniserv,
as a result of such enforcement, shall be required to proceed with any
transaction contemplated hereby.
SECTION 13 . Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 14 . Notices.
All communications hereunder will be in writing and, if sent to the
Underwriters or the Dealers made in the manner set forth in the separate letter
identifying the Dealers.
or, if sent to Uniserv, will be mailed, delivered or telegraphed and confirmed
to it at:
United Service Technologies Limited
First Floor
Bank of Nova Scotia
Road Town, Tortola
British Virgin Island
Attention:
or, if sent to UTi, will be mailed, delivered or telegraphed and confirmed to it
at
UTi Worldwide Inc.
c/o UTi, Services, Inc.
00000 Xxxxxx Xxx, Xxxxx 000
Xxxxxx Xxxxxxxxx, XX 00000
XXX
Attention: Xxxxx X. XxxXxxxxxx
Please confirm your agreement to the foregoing by signing and returning to
us the enclosed duplicate of this Agreement.
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Very truly yours,
UNITED SERVICE TECHNOLOGIES LTD.
By: /S/ XXXXXX XXXXXXX
----------------------
Name: Xxxxxx Xxxxxxx
Title: Director
Acknowledged and agreed to
as of the date first above written,
UTi WORLDWIDE INC.
By: /S/ XXXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
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