REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated this 7th day of October, 1997 by
and among Drew Industries Incorporated, a Delaware corporation ("Drew"), and the
persons and entities set forth on the signature page hereto (collectively, the
"Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers and certain other persons collectively owned
all the issued and outstanding capital stock of Xxxxxxx Components, Inc., a
Pennsylvania corporation ("LCI"); and
WHEREAS, Xxxxxxx Acquisition Corp., a Delaware corporation
("Acquisition") is a wholly-owned subsidiary of Drew; and
WHEREAS, Drew, Acquisition, LCI and the Sellers are parties to an
Agreement and Plan of Merger dated the date hereof (together with any documents,
certificates or instruments executed or delivered in connection therewith, the
"Merger Agreement") pursuant to which, among other things, LCI shall merge into
Acquisition, with Acquisition surviving the merger and, in partial consideration
therefor, Acquisition delivered to the Sellers an aggregate of 2,154,000 shares
of the Common Stock (the "Drew Shares");
WHEREAS, subject to the terms hereof, Drew has agreed to
use its best efforts to cause the Drew Shares to be registered in accordance
with a registration statement declared effective under the Securities Act; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the Closing under the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, and subject to the
conditions hereinafter set forth, it is agreed as follows:
1. Definitions
1.1 As used in this Agreement, the following terms shall have
the following meanings:
"Commission" means the Securities and Exchange Commission, or
any other federal agency then administering the Exchange Act or the Securities
Act.
"Common Stock" means Drew Common Stock, par value $0.01 per
share, any stock into which such stock shall have been changed, or any stock
resulting from any reclassification of such stock.
"Common Stock Outstanding" means at any time all shares of
Common Stock that are then outstanding, plus all shares of Common Stock issuable
upon conversion of securities or instruments convertible into Common Stock or
upon exercise of issued or issuable options, warrants, rights or other
instruments to acquire Common Stock or instruments convertible into Common
Stock.
"Exchange Act" means the Securities Exchange Act of
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1934, as amended, or any successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect from time to time.
"Listing" means the listing of the Common Stock on the
American Stock Exchange, any other national securities exchange in the United
States, or the trading of the Common Stock on any national market system in the
United States, including, but not limited to, the over-the-counter market as
reported by the National Association of Securities Dealers automated quotation
system.
"Person" means and includes natural persons, corporations,
limited partnership, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts, government entities and authorities and other organizations,
whether or not legal entities.
"Qualifying Shares" means at least fifty (50%) percent of all
Registrable Securities, including Registrable Securities issuable upon exercise
of any right to acquire Registrable Securities, whether or not such acquisition
has actually been effected; provided, however, that such acquisition is effected
in compliance with the provisions of this Agreement.
"Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Securities" means (i) the Drew Shares, and (ii)
any shares of Common Stock issued as a dividend or other distribution with
respect to or in exchange for or in replacement of
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the Drew Shares, including by stock dividends or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization; provided, however, that any shares described in the foregoing
clauses that have been resold to the public shall cease to be Registrable
Securities.
"Registration Expense" means all expenses incident to Drew's
performance of or compliance with Section 2 hereof including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel, all independent certified public accountants,
underwriters (excluding Selling Expenses), and other Persons retained by Drew,
Blue Sky fees and expenses, and the expense of any special audits incident to or
required by any such Registration.
"Rule 144" or "Rule 145" means Rule 144 or Rule 145 as
promulgated by the Commission under the Securities Act, as such Rules may be
amended from time to time, or any similar successor rules that the Commission
may promulgate.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Selling Expenses" means (i) all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities Registered
and sold pursuant to Section 2 hereof; and (ii) the expenses of qualifying the
Registrable Securities covered by the Registration in a jurisdiction if and only
if and to the extent that the jurisdiction requires such qualification expenses
to be borne by the selling Shareholder.
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"Shareholder" means the Sellers and any other Person owning of
record or beneficially Registrable Securities who acquired Drew Shares from any
of the Sellers in a transaction which complies with the provisions of this
Agreement.
Capitalized terms not defined in this Agreement shall have the
meanings ascribed to them in the Merger Agreement.
2. Registration Rights.
(a) Piggyback Registration Rights.
(i) If, at any time after one (1) year from the date
hereof and prior to the termination of this Agreement, Drew determines to
register any of its securities, either for its own account or the account of a
security holder or holders exercising any demand registration rights, other than
a Registration relating solely to employee benefit plans on Form S-8 or similar
forms which may be promulgated in the future, or a Registration on Form S-4 or
similar forms which may be promulgated in the future relating solely to a Rule
145 or similar transaction, Drew shall promptly (and in any event within ten
(10) days) give to each Shareholder written notice thereof (which shall include
a list of the jurisdictions in which Drew intends to attempt to qualify such
securities under the applicable Blue Sky or other state securities laws). Drew
shall include in such Registration (and any related qualification under Blue Sky
laws or other compliance), and in any underwriting involved therein, Registrable
Securities of any Shareholder or Shareholders as specified in a written request
or requests made by any such Shareholder or Shareholders to Drew within twenty
(20) days after such Shareholders' receipt of such written notice from Drew as
follows:
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(A) if such Registration shall be effected prior
to three (3) years from the date hereof, not more than an aggregate of Seven
Hundred Fifty Thousand (750,000) shares of Registrable Securities less the
number of shares of Registrable Securities previously registered pursuant to
Section 2(b)(A) hereof, and
(B) if such Registration shall be effected after
three (3) years from the date hereof, all shares of Registrable Securities not
previously sold by such Shareholders.
(ii) If the Registration of which Drew gives notice is
for a registered public offering involving an underwriting, Drew shall so
indicate in the notice given pursuant to Section 2(a)(i). In such event, the
right of any Shareholder to Registration pursuant to this Section 2(a) shall be
conditioned upon such Shareholder's agreeing to participate in such underwritten
registered public offering and to the inclusion of such Shareholder's
Registrable Securities in the underwriting to the extent provided herein. All
Shareholders proposing to distribute their Registrable Securities through such
underwriting shall (together with Drew and the other security holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by Drew or by other security holders exercising
any demand registration rights who have the right to select underwriters.
(iii) Notwithstanding any other provision of this
Section 2(a), if such Registration is an underwritten primary Registration on
behalf of Drew, and the underwriters advise Drew in
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writing that in their opinion the number of securities requested to be included
in such Registration exceeds the number which can be sold in an orderly manner
in such offering within a price range acceptable to Drew, then Drew shall
include in such Registration (i) first, the securities Drew proposes to sell,
(ii) second, up to 350,000 shares of Common Stock held by Drew shareholders
other than the Shareholders who are contractually entitled to have such Common
Stock included in such Registration, pro rata among such shareholders of such
Common Stock on the basis of the number of shares owned by each such
shareholder, (iii) third, the Registrable Securities requested to be included in
such Registration, pro rata among the Shareholders holding such Registrable
Securities on the basis of the number of shares owned by each such Shareholder,
and (iv) fourth, other securities requested to be included in such Registration.
If such Registration is an underwritten secondary Registration on behalf of
holders of Common Stock other than the Shareholders, and the underwriters advise
Drew in writing that in their opinion the number of securities requested to be
included in such Registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to the holders initially
requesting such Registration, then Drew shall include in such Registration (i)
first, up to 350,000 shares of Common Stock held by Drew shareholders other than
the Shareholders who are contractually entitled to have such Common Stock
included in such Registration, pro rata among such shareholders of such Common
Stock on the basis of the number of shares owned by each such shareholder, (ii)
second, the Registrable Securities requested to be included in such
Registration, pro rata among the Shareholders
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holding such Registrable Securities on the basis of the number of shares owned
by each such Shareholder, and (iii) third, other securities requested to be
included in such Registration.
(iv) If any Shareholder disapproves of the terms of any
such underwriting, such Shareholder may elect to withdraw therefrom by written
notice to Drew and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such Registration.
(b) Demand Registration. The Shareholders shall have the right
to demand two (2) Registrations as provided herein. At any time after one (1)
year from the date hereof and prior to the termination of this Agreement, any
Shareholder or Shareholders holding Qualifying Shares may furnish to Drew a
written request that Drew effect a Registration on Form S-3, or any similar
successor short-form registration statement then available to Drew, and any
related qualification or compliance with respect to the following Registrable
Securities of such Shareholders:
(A) if such request is made prior to three (3)
years from the date hereof (the "First Period"), not more than an aggregate of
Seven Hundred Fifty Thousand (750,000) shares less the number of shares
previously registered pursuant to Section 2(a)(A) hereof, but not less than an
aggregate of Five Hundred Thousand (500,000) shares, and
(B) if such request is made after three (3) years
from the date hereof (the "Second Period"), all shares of Registrable Securities
not previously sold by such Shareholders, but not less than an aggregate of Five
Hundred Thousand (500,000) shares.
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If Drew shall receive such notice, Drew shall:
(i) promptly (and in any event within ten (10) days
after receipt of any such notice) give written notice of the proposed
Registration, and any related qualification or compliance, to all other
Shareholders; and
(ii) as soon as practicable, effect such Registration
and all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of the
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any other Shareholder or
Shareholders joining in such request as are specified in a written request given
to Drew within twenty (20) days after receipt of such written notice from Drew;
provided, however, that Drew shall not be obligated to effect any such
Registration, qualification or compliance, pursuant to this Section 2(b) hereof:
(A) if Form S-3, or a similar successor short-form
registration statement, is not available to Drew for such offering by the
Shareholders; provided, however, that if such short-form registration does not
become available to Drew within one hundred twenty (120) days after receipt by
Drew of such written request, Drew shall effect such Registration on Form S-1 or
a similar successor long-form registration statement promptly after expiration
of such 120-day period;
(B) if the Shareholders propose to sell less than
the aggregate minimum number of Registrable Securities set forth above; or
(C) if, (x) such request is made during
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the First Period, and a Registration has been previously effected by Drew
pursuant to Section 2(b)(A) hereof during the First Period or, (y) such request
made during the Second Period, and a Registration has been previously effected
by Drew pursuant to Section 2(b)(B) hereof during the Second Period; or
(D) if Drew furnishes to the Shareholders a
certificate signed by Drew's President stating that, in the good faith judgment
of Drew's Board of Directors, it would be seriously detrimental to Drew and its
shareholders for a Registration to be effected at such time, in which event Drew
shall have the right to defer the Registration for a period of not more than one
hundred twenty (120) days after receipt of the request of the Shareholders under
this Section 2(b); provided, however, that Drew shall not utilize this right
more than once in any eighteen (18) month period; or
(E) in any particular jurisdiction in which Drew
would be required to qualify to do business or to execute a general consent to
service of process in effecting such Registration, qualification or compliance.
(iii) Subject to the foregoing, as soon as practicable
after receipt of the request from the Shareholders, Drew shall file, and use its
best efforts to cause to become effective, a registration statement on Form S-3
or Form S-1 (as the case may be in accordance with subsection (ii)(A) above)
covering the Registrable Securities and other securities so requested to be
Registered.
(iv) Except for up to 350,000 shares of Common Stock
held by Drew Shareholders, other than the Shareholders, who
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are contractually entitled to have such Common Stock included in such
Registration, Drew shall not include in any Registration requested pursuant to
this Section 2(b) any securities which are not Registrable Securities without
the prior written consent of the holders of a majority of the Registrable
Securities included in such Registration. If such Registration is an
underwritten offering and the underwriters advise Drew in writing that in their
opinion the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of a majority of the Registrable Securities initially requesting such
Registration, Drew shall include in such Registration, prior to the inclusion of
any securities which are not Registrable Securities, the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among the respective holders thereof on the basis of the amount of
Registrable Securities owned by each such holder.
(c) Expenses of Drew Registrations. All Registration Expenses
incurred in connection with any Registration (including any withdrawn
Registration), qualification or compliance pursuant to this Section 2 (exclusive
of Selling Expenses) shall be borne by Drew. All Selling Expenses shall be borne
by the Shareholders.
(d) Registration Procedures. In the case of each Registration,
qualification or compliance effected by Drew pursuant hereto, Drew shall keep
each Shareholder advised in writing as to
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the initiation of each Registration, qualification and compliance and as to the
completion thereof. At its expense, Drew shall:
(i) keep such Registration, qualification or compliance
effective for a period of ninety (90) days or until the Shareholder(s) have
completed the distribution described in the registration statement relating
thereto, whichever first occurs;
(ii) furnish such number of prospectuses and other documents
incident thereto as any Shareholder from time to time may reasonably request;
(iii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement and take such other actions as may be
reasonably necessary to comply with requests of the Commission and the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(iv) use its best efforts to register and qualify the
securities (or obtain an exception therefrom) covered by such registration
statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Shareholders, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each selling
Shareholder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Shareholder; provided, however, that Drew
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions;
(v) in the event of any underwritten public
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offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering, and each Shareholder participating in such underwriting shall also
enter into and perform its obligations under such an agreement;
(vi) notify each Shareholder holding Registrable Securities
covered by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact misleading in the light of the circumstances then
existing;
(vii) furnish, at the request of any Shareholder requesting
Registration of Registrable Securities pursuant to this Agreement, on the date
that such Registrable Securities are delivered to the underwriters for sale in
connection with such Registration, (1) an opinion of counsel representing Drew
for the purposes of such Registration, dated such date and in form and substance
as is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters, and (2) a letter, dated such date, from Drew's
independent certified public accountants, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters;
(vii) effect a Listing of all such Registrable Securities;
(ix) if Drew does not have a transfer agent and
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registrar, provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(x) permit any Shareholder holding Registrable Securities
which, in its reasonable judgment might be deemed to be an underwriter or a
controlling person of Drew, to participate to a reasonable extent, in the
preparation of such registration statement and to require the insertion therein
of material which in the reasonable judgment of such holder and its counsel
should be included; and
(xi) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration statement for sale in any
jurisdiction, Drew shall use reasonable efforts promptly to obtain the
withdrawal of such order.
(e) Information by Shareholders. The Shareholders of Registrable
Securities included in any Registration shall furnish to Drew and the
underwriters (1) such information regarding such Shareholders and the
distribution they propose as Drew or the underwriters may reasonably request in
writing and as shall be required in connection with any Registration,
qualification or compliance referred to in this Section 2, and (2) an opinion of
counsel representing the Shareholders, dated on or about the effective date of
such Registration and in form and substance reasonably requested by Drew and the
underwriters, addressed to the underwriters and to Drew.
(f) Transfer of Registration Rights. The right to cause
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Drew to Register Registrable Securities under this Section 2 may be assigned to
a transferee or assignee of any of Registrable Securities not sold to the
public, provided that the transfer or assignment has been made in compliance
with the Merger Agreement, this Agreement, and the Securities Act, and the
transferee (i) agrees in writing to be bound by the provisions of this
Agreement, and (ii) executes and delivers to Drew a Representation Letter and
Agreement substantially in the form annexed hereto.
(g) Rule 144 Reporting; Form S-3 Eligibility. With a view to making
available the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of Registrable Securities to the public without
Registration, or with Registration, or with Registration on Form S-3, Drew
agrees to:
(i) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 at all times;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of Drew under the
Exchange Act for so long as it is subject to such reporting requirements;
(iii) so long as a Shareholder owns any Registrable
Securities, to furnish to such Shareholder forthwith upon request a written
statement by Drew as to its compliance with the reporting requirements of Rule
144 and of the Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of Drew, and such other reports and documents of Drew
as a Shareholder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Shareholder to sell any Registrable
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Securities without Registration; and
(iv) use reasonable efforts to comply with all rules and
regulations of the Commission and take all actions reasonably necessary under
the Exchange Act and the Securities Act, including the requirements of Form S-3,
so as to permit the Registrable Securities to be registered on Form S-3 except
as otherwise provided in this Agreement.
(h) No Conflicting Agreements. Drew represents and warrants to the
Shareholders that it is not a party to any agreement that prohibits, in any
manner, Drew from registering Registrable Securities pursuant to this Section 2.
(i) Indemnification.
(A) Drew shall indemnify each Shareholder, and each Person
controlling a Shareholder within the meaning of Section 15 of the Securities
Act, with respect to which Registration, qualification or compliance has been
effected pursuant to this Section 2, and each underwriter, if any, and each
Person who controls any underwriter within the meaning of Section 15 of the
Securities Act (collectively, the "Shareholder Indemnitees"), against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, preliminary prospectus, offering circular or
other document, or any amendment or supplement thereto (any or all of which are
referred to as "Registration Documents"), incident to any such Registration,
qualification or compliance, or based on any
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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 any violation by Drew
of any rule or regulation promulgated under the Securities Act applicable to
Drew and relating to action or inaction required of Drew in connection with any
such Registration, qualification or compliance, and shall reimburse each such
Shareholder Indemnitee for any legal and any other expenses reasonably incurred
in connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that Drew shall not be liable to a
Shareholder Indemnitee in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission (or alleged untrue statement or omission) made in reliance upon and
in conformity with any information furnished to Drew in writing by or on behalf
of any Shareholder Indemnitee specifically for use in connection with such
Registration; provided, however, that information furnished (whether or not in
writing) by or on behalf of, and relating to, a Shareholder contained in any
Registration Documents furnished to the Shareholders prior to the effective date
of such Registration shall be deemed to be information in writing with respect
to such Shareholder.
(B) Each Shareholder shall, if Registrable
Securities held by such Shareholder are included in the Registrable Securities
as to which a Registration, qualification or compliance has been effected
pursuant to this Section 2, jointly and severally with each other such
Shareholder, indemnify Drew, each of its directors and officers, each
underwriter, if any, of Drew's
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securities covered by such Registration, qualification or compliance, and each
Person who controls Drew or such underwriter within the meaning of Section 15 of
the Securities Act, (collectively, the "Company Indemnitees"), against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
Registration Documents incident to any such Registration, qualification or
compliance or based on any 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 in which they were made, not
misleading, or any violation by Drew of any rule or regulation promulgated under
the Securities Act applicable to Drew in connection with any such Registration,
qualification, or compliance, and shall reimburse the Company Indemnitees for
any legal or any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damages, liability
or action, in each case to the extent, but only if and to the extent, that such
untrue statement or omission (or alleged untrue statement or omission) is made
in such Registration Documents in reliance upon and in conformity with
information furnished to Drew in writing by or on behalf of any Shareholder
Indemnitee specifically for use in connection with such Registration; provided,
however, that information furnished (whether or not in writing) by, or on behalf
of, and relating to, a Shareholder contained in any Registration Documents
furnished to the Shareholders prior to the effective date
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of such Registration shall be deemed to be information in writing with respect
to such Shareholder.
(C) Each party entitled to indemnification under
this Section 2(i) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at its own expense; provided, however, that if in the Indemnified
Party's reasonable judgment, the interests of the Indemnified Party and the
Indemnifying Party are in conflict, then the Indemnified Party may retain
counsel separate from counsel for the Indemnifying Party, which counsel shall be
paid for and approved by Indemnifying Party, which approval shall not be
unreasonably withheld; and provided, further, however, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2(i) to the extent that
such failure has not resulted in actual detriment to the Indemnifying Party. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, 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 Party a
release from all liability in respect of
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such claim or litigation.
(D) If the indemnification provided for in this
Section 2(i) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and of the Indemnified
Party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(j) Market Stand-Off.
(A) Each Shareholder hereby agrees that, if so requested by
Drew and the underwriter in connection with any Registration of Drew's
securities, such Shareholder will not sell, make any short sale of, loan, grant
any option for the purchase of or otherwise dispose of any Registrable
Securities (other than those included in the Registration) to any Person (other
than a Person who agrees to be similarly bound) without the prior written
consent of
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Drew and the underwriter for such period of time, not to exceed ninety (90) days
(the "Standstill Period"), from the effective date of such Registration as Drew
and the underwriter may specify; provided, however, that such restriction shall
apply only to a registration statement of Drew to become effective after the
date hereof (1) which includes securities to be sold on Drew's behalf to the
public in an underwritten offering and (2) with respect to which Drew has
complied with its obligations under Section 2(a) hereof. Drew may impose
stop-transfer instructions with respect to Registrable Securities subject to the
restrictions provided for in this Section 2(j) until the end of the Standstill
Period mandated by Drew and the underwriter.
(B) If the distribution restriction described in subsection
(A) of this Section 2(j) are in effect, Drew agrees not to effect any public
sale or distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the seven days
prior to and during the ninety (90) day period following the effective date of a
registration statement covering any Registrable Securities, except as part of
such Registration and except pursuant to a Registration on Form S-8 or any
successor or similar form thereto.
(k) Termination of Registration Rights. Except for the provisions of
Section 2(i) hereof, the rights and obligations of the of the parties hereto
pursuant to this Section 2 shall terminate five (5) years from the date hereof.
3. Nonwaiver; Cumulative Remedies.
No course of dealing or any delay or failure to exercise any
right hereunder on the part of any Shareholder shall
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operate as a waiver of such right or otherwise prejudice the rights, powers or
remedies of such Shareholder. No single or partial waiver by any Shareholder of
any provision of this Agreement or of any breach or default hereunder or of any
right or remedy shall operate as a waiver of any other provision, breach,
default right or remedy or of the same provision, breach, default, right or
remedy on a future occasion. The rights and remedies provided in this Agreement
are cumulative and are in addition to all rights and remedies which each
Shareholder may have in law or in equity or by statute or otherwise.
4. Notices.
4.1 All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, telegram, telex, facsimile or other standard
form of telecommunication, or by registered or certified post-paid mail, return
receipt requested, and addressed as follows, or to such other address as any
party may notify the other in accordance with the provisions hereof:
To Drew: Drew Industries Incorporated
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-copy to-
Xxxxxxx, Xxxxxx and Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
22
To the Sellers or
any Shareholder: c/o L. Xxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-copy to-
Couzens, Lansky, Fealk, Ellis, Xxxxxx
& Xxxxx, P.C.
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 000
X.X. Xxx 0000
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-and-
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: R. Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
5. Additional Provisions.
5.1 Drew and the Shareholders shall execute and deliver or
cause to be executed and delivered to the other such further instruments,
documents and conveyances and shall take such other action as may be reasonably
required to more effectively carry out the terms and provisions of this
Agreement.
5.2 This Agreement shall be binding upon and inure to the
benefit of Drew, and its successors and assigns, and shall be binding upon and
inure to the benefit of any Shareholder and such Shareholder's successors and
assigns, or personal representatives and heirs, as the case may be. Subject to
Section 2(f), this Agreement shall not be assignable by any Shareholder without
the prior written consent of Drew. Drew may assign its rights pursuant to this
Agreement to an entity which is under common control with
23
it, or which it controls, or by which it is controlled ("Assignee"); provided
however, that, as between Drew and any Shareholder, any such assignment shall
not affect, diminish or reduce in any way the obligations (monetary or
otherwise) of Drew to any Shareholder as set forth herein, it being agreed that
all such obligations constitute, and shall remain, direct, absolute,
unconditional obligations of Drew; and provided further, that in the event of
such assignment, Assignee shall be bound by the terms and conditions of this
Agreement as fully as if it were named with Drew as a party hereto.
5.3 This Agreement and the documents referred to herein
constitute the whole agreement among the parties, and there are no terms other
than are contained herein or therein. No variation hereof or thereof shall be
deemed valid unless by full performance by the parties hereto or by a writing
signed by the parties hereto.
5.4 This Agreement shall be governed by the laws of the State
of Delaware, without giving effect to the principles of conflicts of laws,
including, but not limited to, matters of construction, validity and
performance. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the District of Delaware
and any court of the State of Delaware located in the city of Wilmington over
any suit, action or proceeding arising out of or relating to this Agreement.
Each party hereby irrevocably waives to the fullest extent permitted by law, (i)
any objection that they may now or hereafter have to the venue of any such suit,
action or proceeding brought in any such court, (ii) any claim that any such
suit, action
24
or proceeding has been brought in an inconvenient forum, and (iii) all right to
trial by jury in any proceeding enforcing or defending any rights under this
Agreement or relating hereto. Final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon each
party duly served with process therein and may be enforced in the courts of the
jurisdiction of which either party or any of its property is subject, by a suit
upon such judgment.
5.5 This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall be deemed to be one and the
same instrument.
5.6 The headings in this Agreement are for the convenience of
reference only, and shall not affect in any manner any of the terms or
provisions hereof. For purposes of this Agreement, where applicable, the
masculine gender shall also include the feminine gender.
5.7 Whether or not the transactions contemplated herein are
consummated, each of parties hereto shall be solely liable for the fees and
expenses incurred by such party's attorneys, accountants and other
representatives in connection with the preparation of this Agreement, the
documents deliverable hereunder and any investigation or examination authorized
herein.
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
to be duly executed as of the day and year first above written.
ATTEST: DREW INDUSTRIES INCORPORATED
/s/ Xxxxxx Xxxxxx, Secy. By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------------
Xxxxx X. Xxxxxx,
President and Chief Executive
Officer
ATTEST: XXXXXXX ACQUISITION CORP.
/s/ Xxxxxx Xxxxxx, Secy. By: /s/ Xxxxx X. Xxxxxx
--------------------------------- ---------------------------------------
Xxxxx X. Xxxxxx,
Vice President
L. Xxxxxxx Xxxxxxx Living Trust,
dated June 6, 1989
/s/ Xxxx XxXxxxx By: /s/ L. Xxxxxxx Xxxxxxx
--------------------------------- ---------------------------------------
L. Xxxxxxx Xxxxxxx, Trustee
WITNESS: Xxxxxxx Family Irrevocable Trust
f/b/o Xxxxx X. Xxxxxxx, dated
December 20, 1986
Xxxxxxx Family Irrevocable Trust
f/b/o Xxxxxx X. Xxxxxxx, dated
December 20, 1986
Xxxxxxx Family Irrevocable Trust
f/b/o Xxxxxx Xxxxx Xxxxxxx, dated
December 20, 1986
Xxxxxxx Family Irrevocable Trust
f/b/o Xxxxx X. Xxxxxxx, dated
December 20, 1986
Xxxxxxx Family Irrevocable Trust
f/b/o Xxxxx X. Xxxxxxx, dated
December 20, 1986
Xxxxxxx Family Irrevocable Trust
f/b/o Jayde X. Xxxxxxx, dated
December 20, 1986
By: Xxxxxxx Family Irrevocable
Trust, dated December 20,
1986
/s/ Xxxx XxXxxxx By: /s/ Xxxxx Xxxxxxx Xxxxxxx
------------------------------ ------------------------------
Xxxxx Xxxxxxx Xxxxxxx,
Co-Trustee
/s/ [ILLEGIBLE] By: /s/ Xxxxxx Xxx Xxxxxxx
------------------------------ ------------------------------
Xxxxxx Xxx Xxxxxxx,
Co-Trustee
