REGISTRATION AGREEMENT
EXHIBIT 4.3
THIS REGISTRATION AGREEMENT (this “Agreement”) is made and entered into as of August
7, 2008, by and among XXXXXXX & XXXXX, INC., an Ohio corporation (the “Company”), and
M.H.M. & CO., LTD., an Ohio limited partnership (the “Holder”), under the following
circumstances:
WHEREAS, Holder owns 5,988,508 common shares of the Company and desires to sell
up to 2,994,254 of such shares (the “Registration Shares”); and
WHEREAS, in connection therewith, the Company has agreed to file a Registration
Statement on Form S-3ASR with the Securities and Exchange Commission (“SEC”)
registering the Registration Shares for resale by the Holder.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. In addition to the words and terms defined elsewhere in this
Agreement, each capitalized word or term used as a defined term but not otherwise defined in this
Agreement shall have the meanings set forth below:
“Business Day” means any day on which the New York Stock Exchange (or any successor
exchange) is open for trading.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC thereunder, all as the same shall be in effect at the relevant time.
“Person” means an individual, partnership, corporation, limited liability company,
association, joint stock company, joint venture, trust, estate, unincorporated organization,
governmental entity or any other entity.
“Registration Expenses” means all expenses incident to the Company’s performance of or
compliance with the registration requirements set forth herein including, without limitation, the
following: (i) the fees, disbursements and expenses of the Company’s attorneys, accountants and
experts in connection with the registration of the Registration Shares under the Securities Act;
(ii) all expenses in connection with the preparation and filing of the Registration Statement, any
prospectus, or any other offering document and any amendments and supplements thereto; and
(iii) all expenses in connection with the qualification of the Registration Shares for offering and
sale under the securities or “blue sky” laws of any state; except that, Registration Expenses with
respect to any registration pursuant hereto shall not include (v) up to $10,000 in accounting fees
incurred by the Company in connection with the registration of the Registration Shares under the
Securities Act, (w) all SEC and blue sky registration fees attributable to Registration Shares,
(x) transfer taxes applicable to Registration Shares, (y) discounts and selling commissions
attributable to the sale of any Registration Shares, and (z) fees and expenses of any counsel
retained by the Holder (collectively, clauses (v), (w), (x), (y) and (z) are referred to as the
“Selling Expenses”).
“Registration Statement” means a “shelf” registration statement of the Company
prepared pursuant to the provisions of this Agreement which provides for the offering and sale of
the Registration Shares on an appropriate form under Rule 415 under the Securities Act, or any
successor or similar rule that may be adopted by the SEC, and all amendments and supplements to
such registration statement, including post-effective amendments and prospectus supplements, in
each case including the prospectus contained therein, as supplemented, all exhibits thereto and all
material incorporated by reference therein.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the relevant time.
ARTICLE II
REGISTRATION AND EXPENSES
2.1. Registration and Qualification. The Company will:
(a) prepare, file and use commercially reasonable efforts to cause to become effective,
a Registration Statement relating to the offer and sale of the Registration Shares by the
Holder in accordance with the methods of distribution elected by the Holder, and as set
forth in, such Registration Statement.
(b) use commercially reasonable efforts to keep the Registration Statement continuously
effective in order to permit the prospectus, as amended or supplemented, forming part
thereof to be usable by the Holder for a period of three years after the effective date of
such Registration Statement, or for such shorter period that will terminate when all
Registration Shares covered by the Registration Statement have been sold pursuant to the
Registration Statement or cease to be outstanding or otherwise to be Registration Shares
(the “Initial Shelf Effectiveness Period”); provided that, such period will only be
available (i) to the extent that Rule 415, or any successor rule under the Securities Act,
permits an offering on a continuous or delayed basis, and (ii) if applicable rules under the
Securities Act governing the obligation to file a post-effective amendment permit, in lieu
of filing a post-effective amendment which (x) includes any prospectus required by
Section 10(a) of the Securities Act or (y) reflects facts or events representing a material
or fundamental change in the information set forth in the Registration Statement, (A) the
incorporation by reference in the Registration Statement of the information required to be
included in (x) and (y) above from periodic reports filed pursuant to Section 12 or 15(d) of
the Exchange Act, or (ii) the use of a prospectus supplement, filed pursuant to Rule 424
under the Securities Act, containing the information required to be included in (x) and
(y) above;
(c) furnish to the Holder such number of conformed copies of such the Registration
Statement and of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in the
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Registration Statement (including any supplemental prospectus), in conformity with the
requirements of the Securities Act, such documents incorporated by reference in the
Registration Statement or prospectus, and such other documents as the Holder may reasonably
request;
(d) use commercially reasonable efforts to register or qualify all Registration Shares
under such other securities or blue sky laws of such jurisdictions as the Holder shall
reasonably request, and do any and all other acts and things which may be reasonably
requested by the Holder to consummate the disposition in such jurisdictions of the
Registration Shares covered by the Registration Statement, except the Company shall not for
any such purpose be required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to taxation in any
jurisdiction where it is not then subject to taxation, or to consent to general service of
process in any jurisdiction where it is not then subject to service of process;
(e) use commercially reasonable efforts to ensure that (i) the Registration Statement
and any amendment thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and regulations
thereunder, (ii) the Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and (iii) any prospectus forming part of the Registration Statement, and any
supplement to such prospectus (as amended or supplemented from time to time), does not
include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements, in the light of the circumstances under which they were made,
not misleading;
(f) immediately notify the Holder of the happening of any event as a result of which
the prospectus included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state 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, not misleading, and, at the request of the Holder, prepare and furnish to
the Holder as many copies of a supplement to or an amendment of such prospectus as the
Holder reasonably request so that, as thereafter delivered to the purchasers of such
Registration Shares, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; and
(g) immediately notify the Holder of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and take every reasonable effort to
obtain the withdrawal of any such stop order.
The Company may require the Holder to furnish the Company such information regarding the Holder and
the proposed method of distribution of the Registration Shares as the Company may from time to time
reasonably request in writing and as shall be required by law or by the SEC in connection with the
Registration Statement or the Registration Shares, and the Holder shall promptly notify the Company
of the distribution of the Registration Shares. The Holder agrees
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that it will respond in writing within five (5) Business Days to any request by the Company to
provide or verify any information regarding the Holder or the Registration Shares that is required
to be included in a registration statement relating to the Registration Shares pursuant to the
rules and regulations of the SEC.
2.2. Blackout Periods.
(a) The Holder shall suspend the use of the Registration Statement and sales of Registration
Shares during each period beginning five (5) days prior to the end of each fiscal quarter of the
Company and ending on the first Business Day following the day on which the Company’s publicly
available conference call discussing results for the most recently completed fiscal quarter is
held; provided that the Company may, in its sole discretion, by written notice to the Holder waiver
the suspension period or reduce the length of the suspension period.
(b) After the filing of the Registration Statement, subject to the provisions of this
Subsection 2.2(b) and a good faith determination by the Chief Executive Officer and the General
Counsel of the Company that it is in the best interests of the Company to suspend the use of the
Registration Statement, the Company, by written notice to the Holder, may direct the Holder to
suspend sales of the Registration Shares for such times as the Company reasonably may determine is
necessary and advisable (but in no event for more than the earlier of (i) the date upon which any
material non-public information that is a basis for such determination is disclosed to the public
or ceases to be material or (ii) ninety (90) days after the Company makes such determination) if
any of the following events shall occur: (A) the Chief Executive Officer and the General Counsel
of the Company in good faith determine that (x) the continued use of the Registration Statement is
reasonably likely to adversely affect a material financing, acquisition, disposition, merger or
other comparable transaction involving the Company or (y) disclosure of material non-public
information is reasonably likely to have a material adverse effect on the Company and, in each of
(x) and (y), the continued use of the Registration Statement would require the disclosure of
material non-public information not otherwise required to be disclosed under applicable law; or
(B) the Chief Executive Officer and the General Counsel of the Company shall have determined in
good faith that it is required by law, rule or regulation to supplement the Registration Statement
or file a post-effective amendment to the Registration Statement in order to incorporate
information into the Registration Statement for the purpose of (x) including any prospectus
required under Section 10(a)(3) of the Securities Act; (y) reflecting in the prospectus included in
the Registration Statement any facts or events arising after the effective date of the Registration
Statement (or of the most recent post-effective amendment thereto) that, individually or in the
aggregate, represents a fundamental change in the information set forth therein; or (z) including
in the prospectus included in the Registration Statement any material information with respect to
the plan of distribution not disclosed in the Registration Statement or any material change to such
information (the circumstances set forth in clauses (A) and (B) above are referred to as a
“Suspension Event”). Upon the occurrence of any such Suspension Event, the Company shall
use its commercially reasonable efforts to promptly amend or supplement the Registration Statement
on a post-effective basis or to take such action as is necessary to permit resumed use of the
Registration Statement as promptly as possible.
(b) In the case of a Suspension Event, the Company shall give written notice (a
“Suspension Notice”) to the Holder to suspend sales of the Registration Shares and such
notice shall certify by the Company’s Chief Executive Officer, President or any Vice President to
the Holder, that such suspension was approved by the Chief Executive Officer and the General
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Counsel of the Company, shall continue only for so long as the Suspension Event or its effect is
continuing, and the Company is taking all reasonable steps to terminate suspension of the use of
the Registration Statement as promptly as possible. The Holder shall not effect any sales of the
Registration Shares pursuant to the Registration Statement at any time after receiving a Suspension
Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below).
The Holder may recommence effecting sales of the Registration Shares pursuant to the Registration
Statement following further notice to such effect (an “End of Suspension Notice”) from the
Company, which End of Suspension Notice shall be given by the Company to the Holder in the manner
described above promptly following the conclusion of any Suspension Event and its effect.
2.3. Expenses. The Company shall pay all Registration Expenses in connection with the
registration of the Registration Statement. The Holder shall pay any Selling Expenses.
ARTICLE III
INDEMNIFICATION
3.1. Indemnification by the Company. The Company shall indemnify and hold harmless
the Holder and its directors, officers, partners, and each Person who controls any of such Persons,
against any losses, claims, damages, liabilities and expenses to which such Person may be subject
under the Securities Act or otherwise insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained in the Registration
Statement under which such Registration Shares were registered under the Securities Act, any
prospectus included therein, or any amendment or supplement thereto, or any document incorporated
by reference therein, or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and the
Company will promptly reimburse each such Person for any legal or any other expenses reasonably
incurred by such Person in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding, provided, that, the Company shall not be liable to any Person in
any such case to the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, any such prospectus,
or any amendment or supplement in reliance upon and in conformity with written information
furnished to the Company by the Holders expressly for use in the Registration Statement. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of the Holder or any such Person and shall survive the transfer of the Registration Shares
by the Holder.
3.2. Indemnification by the Holder. The Holder shall indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 3.1) the Company, each director of
the Company, each officer of the Company who shall sign the Registration Statement, and each
Person, if any, who controls the Company within the meaning of the Securities Act, with respect to
any statement in or omission from the Registration Statement, any prospectus included therein, or
any amendment or supplement thereto, but only to the extent that such statement or omission was
made in reliance upon and in conformity with written information furnished by the Holder to the
Company expressly for use in the Registration Statement provided, however, that
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the obligation to indemnify shall be limited to the net amount of proceeds received by the
Holder from the sale of the Registration Shares pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling Person and shall survive the
transfer of the Registration Shares by the Holder and the expiration of this Agreement. The
parties agree that the only information furnished by the Holder in writing expressly for use in the
Registration Statement is the information under the captions “Selling Shareholder” and “Plan of
Distribution” in the prospectus.
3.3. Procedure for Indemnification. An indemnified party hereunder shall give
reasonably prompt notice to the indemnifying party of any action or proceeding commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify the indemnifying
party (i) shall not relieve such indemnifying party from any liability which it may have under the
indemnity agreement provided in Sections 3.1 or 3.2 above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party results in the
forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to the indemnified party other than the
indemnification obligation provided under Sections 3.1 or 3.2 above. If the indemnifying party so
elects within a reasonable time after receipt of such notice, the indemnifying party may assume the
defense of such action or proceeding at such indemnifying party’s own expense with counsel chosen
by the indemnifying party and approved by the indemnified party, which approval shall not be
unreasonably withheld; except that, the indemnifying party will not settle any such action or
proceeding or consent to the entry of a judgment in any such action or proceeding without the
written consent of the indemnified party unless (i) as a condition to such settlement, the
indemnifying party secures the unconditional release of the indemnified party and (ii) the
settlement does not include any statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of the indemnified party; and provided, further, that if the indemnified
party reasonably determines that a conflict of interest exists where it is advisable for the
indemnified party to be represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it which are different from or in addition to those available to the
indemnifying party, then the indemnifying party shall not be entitled to assume such defense and
the indemnified party shall be entitled to separate counsel at the indemnifying party’s expense.
If the indemnifying party is not entitled to assume the defense of such action or proceeding as a
result of the second proviso to the preceding sentence, the indemnifying party’s counsel shall be
entitled to conduct the indemnifying party’s defense and counsel for the indemnified party shall be
entitled to conduct the defense of the indemnified party, it being understood that both such
counsel will cooperate with each other to conduct the defense of such action or proceeding as
efficiently as possible. If the indemnifying party is not so entitled to assume the defense of
such action or does not assume such defense, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party will pay the reasonable fees and expenses
of counsel for the indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the indemnifying party. If an
indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, the indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection with such action or
proceeding.
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Notwithstanding the foregoing, 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. For purposes of this Section 3.3, each
Person, if any, who controls a Holder within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Holder, and each director of the Company, each officer
of the Company who signed such registration statement and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the same rights to
contribution as the Company.
If the indemnification provided for in this Article III is held by a court of competent
jurisdiction to be unavailable to an indemnified party or is otherwise unenforceable with respect
to any loss, claim, damage, liability or action referred to herein, then the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, shall contribute to the amounts paid or
payable by such indemnified party as a result of such loss, claim, damage, liability or action 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 hand in connection with the statements or
omissions which resulted in such loss, claim, damage, liability or action as well as any other
relevant equitable considerations; provided that the maximum amount of liability in respect of such
contribution shall be limited, in the case of the Holder of Registration Shares, to an amount equal
to the net proceeds actually received by the Holder from the sale of Registration Shares effected
pursuant to such Registration Statement. 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. The parties hereto agree that it would not be just or equitable if the
contribution pursuant to this paragraph were to be determined by pro rata allocation or by any
other method of allocation that does not take into account such equitable considerations. The
amount paid or payable by an indemnified party as a result of the losses, claims, damages,
liabilities or expenses referred to herein shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending against
any action or claim which is the subject hereof.
3.4. Indemnification for Other Required Registrations. Indemnification similar to
that specified in the preceding subsections of this Article III (with appropriate modifications)
shall be given by the Company and the Holder with respect to any required registration or other
qualification of the Registration Shares under any federal or state law or regulation of a
governmental authority other than the Securities Act.
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ARTICLE IV
MISCELLANEOUS
4.1. Integration; Amendment. This Agreement constitutes the entire agreement between
the parties hereto with respect to the matters set forth herein and supersedes and renders of no
force and effect all prior oral or written agreements, commitments and understandings among the
parties with respect to the matters set forth herein. Except as otherwise expressly provided in
this Agreement, no amendment, modification or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed by the Company and the Holder.
4.2. Waivers. No waiver by a party hereto shall be effective unless made in a written
instrument duly executed by the Company and the Holder. Neither the waiver by any of the parties
hereto of a breach or a default under any of the provisions of this Agreement, nor the failure of
any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any
subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or
privileges hereunder.
4.3. Burden and Benefit. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors, personal and legal
representatives and successors.
4.4. Notices. All notices called for under this Agreement shall be in writing and
shall be deemed given upon receipt if delivered personally or by facsimile transmission and
followed promptly by mail, or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the addresses set forth below their names on the signature page
hereto, or to any other address or addressee as any party entitled to receive notice under this
Agreement shall designate, from time to time, to others in the manner provided in this Section 4.4
for the service of notices; except that, notices of a change of address shall be effective only
upon receipt thereof. Any notice delivered to the party hereto to whom it is addressed shall be
deemed to have been given and received on the day it was received; except that, if such day is not
a Business Day then the notice shall be deemed to have been given and received on the Business Day
next following such day and if any party rejects delivery of any notice attempted to be given
hereunder, delivery shall be deemed given on the date of such rejection. Any notice sent by
facsimile transmission shall be deemed to have been given and received on the Business Day next
following the transmission.
4.5. Governing Law. This Agreement, the rights and obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed in accordance with
the laws of the State of Ohio, but not including the choice of law rules thereof.
4.6. Execution in Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary that the signature
of or on behalf of each party appears on each counterpart, but it shall be sufficient that the
signature of or on behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement.
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4.7. Severability. If fulfillment of any provision of this Agreement, at the time
such fulfillment shall be due, shall transcend the limit of validity prescribed by law, then the
obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or
provision contained in this Agreement operates or would operate to invalidate this Agreement, in
whole or in part, then such clause or provision only shall be held ineffective, as though not
herein contained, and the remainder of this Agreement shall remain operative and in full force and
effect.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed
on its behalf as of the date first hereinabove set forth.
| XXXXXXX & XXXXX, INC. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxx X. Xxxxxxx | |||||||
| Title: | President and Chief Executive Officer | |||||||
| Address: | ||||||||
| 00 Xxxx Xxxxxx | ||||||||
| Xxxxx 000 | ||||||||
| Xxxxxx, Xxxx 00000 | ||||||||
| M.H.M. & CO., LTD. | ||||||||
| By: | Xxxxxxx X. Xxxxx Co., Inc., | |||||||
| its General Partner | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxx V | |||||||
| Name: Xxxxxxx X. Xxxxx V | ||||||||
| Title: Vice President/Treasurer | ||||||||
| Address: | ||||||||
| 000 Xxxxx Xxxxxxxx | ||||||||
| Xxxxxxxxx, Xxxx 00000 | ||||||||
537336.5
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