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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 31 , 1994 by and
between Xxxxxx Xxxxxx, Inc., a Tennessee corporation (the "Company"), and each
of the former holders of common stock of PPC, Inc., a North Carolina
corporation ("PPC"), listed on the signature page hereto (the "Former PPC
Holders").
WHEREAS, the Company, the Former PPC Holders and PPC are parties to a
certain Agreement and Plan of Merger of even date herewith pursuant to which
PPC has become a wholly owned subsidiary of the Company and the Former PPC
Holders have been issued or will be issued shares of Common Stock of the
Company;
WHEREAS, the Company and Xxxx Xxxxxxx ("Xxxxxxx") are parties to an
Assignment of Option Agreement (the "Assignment Agreement") dated the date
hereof pursuant to which Xxxxxxx has assigned to the Company all right, title
and interest in an Amended and Restated Option Agreement covering real property
currently leased by PPC in consideration of the issuance by the Company to
Xxxxxxx of an aggregate of 26,667 shares of Common Stock;
WHEREAS, the Board of Directors has authorized the officers of the
Company to prepare and execute this Agreement, in the name and on behalf of the
Company, to offer certain registration rights to the Holders (as hereinafter
defined), the acceptance of which shall be evidenced by their execution of this
Agreement;
NOW, THEREFORE, the Company and the Holders agree as follows:
1. Definitions - As used in this Agreement, the following terms
shall have the following meanings:
"Holder" means each Former PPC Holder that owns Registrable
Securities. For purposes of this Agreement, the Company may deem and treat the
registered holder of a Registrable Security as the Holder and absolute owner
thereof, and the Company shall not be affected by any notice to the contrary.
"Registrable Securities" means (i) the Stock issued or
issuable pursuant to the Merger and the Assignment Agreement and (ii) any
securities issued or issuable in respect of the Stock referred to above by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger or consolidation, and any other
securities issued pursuant to any other pro rata distribution with respect to
such Stock. For purposes of this Agreement, a Registrable Security ceases to
be a Registrable Security when (a) it has been effectively registered under the
Securities Act (as defined below) and sold or distributed to the public in
accordance with an effective registration statement covering it, or (b) it is
sold, distributed or otherwise disposed of pursuant to Rule 144 (or any
successor or similar provision) under the Securities Act.
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"Required Holders" means the Holders of at least 50% of the
Registrable Securities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any similar Federal statute, and the rules and regulations
of the SEC issued under such act, as they each may, from time to time, be in
effect.
2. Demand Registration. Subject to the terms and conditions set
forth herein, if at any time the Required Holders shall request the Company in
writing to register under the Securities Act all or a part of the Registrable
Securities held by such Holders (a "Demand Registration"), within 15 business
days of receipt of such request the Company shall serve written notice of such
registration request to all Holders and the Company will include in such
registration all Registrable Securities of such Holders with respect to which
the Company has received written requests for inclusion therein within 20 days
after receipt by the Holders of such notice. The Company shall use its best
efforts to cause to be filed and declared effective, as soon as reasonably
practicable, a registration statement on such appropriate form as the Company
in its discretion shall determine, providing for the registration under the
Securities Act of all of such Registrable Securities with respect to which the
Company has received requests for registration by such Holders. A registration
statement filed pursuant to this Section 2 is hereinafter referred to as the
"Demand Registration Statement."
The Company's obligation to use its best efforts to cause
Registrable Securities to be registered in accordance with this Section 2 is
subject to each of the following limitations, conditions and qualifications:
(i) No notice given by the Required Holders shall
be effective hereunder, with respect to the Demand
Registration Statement, until after such time as results
covering at least 30 days of combined operations of PPC and
the Company have been published by the Company, in the form of
a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Form 10-Q
or 8-K, or any other public filing or announcement which
includes such combined results of operations, and ending on
July 31, 1995.
(ii) The Company may postpone, for a reasonable
period of time, the filing or the effectiveness of a
registration statement requested pursuant to this Section 2 if
the Company's Board of Directors determines in good faith that
(A) such registration might have a material adverse effect on
any plan or proposal by the Company with respect to any
financing, acquisition, recapitalization, reorganization or
other material transaction by the Company or its subsidiaries
or (B) the Company is in possession of material non-public
information and disclosure of such information is not in the
best interests of the Company or any of its subsidiaries;
provided, however, that as soon as the conditions permitting
such
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delay no longer exist, the Company shall give notice of that fact to
the Required Holders, and shall proceed with the registration unless
the Required Holders shall have elected, at any time prior to the
close of business on the 20th day after the Company has so notified
the Required Holders, to withdraw their request for registration, and
such withdrawn request shall not constitute a request hereunder.
(iii) The Company shall not be required to effect
any registration pursuant to this Section 2 unless such
registration relates to Registrable Securities representing at
least 50% of the then outstanding shares of such Registrable
Securities.
(iv) The obligation of the Company to register
Registrable Securities pursuant to this Section 2 shall expire
after one Demand Registration Statement filed by reason of a
request pursuant to Section 2 shall have become effective and
remained effective for the period specified in Section
3(a)(ii) hereof.
3. Registration Procedures. (a) Whenever the Company is required
to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to the terms and conditions of
Section 2 (such Registrable Securities being hereinafter referred to as the
"Subject Shares"), the Company will use its best efforts to effect the
registration of the Subject Shares in accordance with the intended method of
disposition thereof. Without limiting the generality of the foregoing, the
Company will as expeditiously as possible:
(i) prepare and file with the SEC a registration
statement on any appropriate form under the Securities Act
with respect to the Subject Shares and use its best efforts to
cause such registration statement to become effective;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with
the provisions of the Securities Act with respect to the
disposition of all Subject Shares and other securities covered
by such registration statement until the earlier of (A) such
time as all of such Subject Shares and other securities have
been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement and (B) the expiration of 30 days after
such registration statement becomes effective; provided, that,
if the offering of Subject Shares pursuant to such
registration statement is terminated or suspended by any stop
order, injunction or other order or requirement of the SEC or
any other governmental agency or court, the foregoing time
period shall be extended by the number of days during the
period from and including the date such stop order, injunction
or other order or requirement becomes effective to and
including the date when such termination or suspension no
longer exists;
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(iii) promptly furnish the Holders of the Subject
Shares covered by such registration statement, without charge,
such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each
case without exhibits unless specifically requested), such
number of copies of the prospectus included in such
registration statement (including each preliminary
prospectus), such documents incorporated by reference in such
registration statement or prospectus, and such other
documents, as such Holders may reasonably request;
(iv) as expeditiously as possible use its best
efforts to register or qualify the Subject Shares covered by
such registration statement under the securities or blue sky
laws of such jurisdictions as the Holders shall reasonably
request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holders to
consummate the disposition in such jurisdictions of the
Subject Shares covered by such registration statement, except
that the Company shall not for any such purpose be required to
(A) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified, (B)
subject itself to taxation in any such jurisdiction wherein it
is not so subject, or (C) consent to general service of
process in any such jurisdiction or otherwise take any action
that would subject it to the general jurisdiction of the
courts of any jurisdiction in which it is not so subject;
(v) otherwise comply with all applicable rules
and regulations of the SEC;
(vi) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being
sold in such denominations as shall be requested and instruct
the transfer agent to release any stop transfer orders with
respect to the Subject Shares being sold;
(vii) notify each Holder at any time when a
prospectus relating to the Subject Shares 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 contains any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein (in the case of the prospectus or
any preliminary prospectus, in light of the circumstances
under which they were made) not misleading, and the Company
will, as promptly as possible thereafter, prepare and file
with the SEC and furnish to each Holder a reasonable number of
copies of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of Subject
Shares such prospectus will not contain any 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;
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(viii) provide and cause to be maintained a transfer
agent for all Subject Shares covered by such Registration
Statement from and after a date not later than the effective
date of such Registration Statement;
(ix) use its best efforts (A) to list all Subject
Shares covered by such Registration Statement on any
securities exchange on which any of the Registrable Securities
is then listed, or (B) in the event such securities are not so
listed, to have such Subject Shares qualified for inclusion on
the NASDAQ National Market System or any comparable quotation
system;
(x) use its best efforts to prevent the issuance
of any stop order suspending the effectiveness of the
registration statement or of any order preventing or
suspending the effectiveness of such registration statement at
the earliest possible moment; and
(xi) take all other steps reasonably necessary to
effect the registration of the Subject Shares contemplated
hereby.
(b) Each Holder shall provide (in writing and signed by
the Holder and stated to be specifically for use in the related registration
statement, preliminary prospectus, prospectus or other document incident
thereto) all such information and materials regarding the Holder and the
intended plan of distribution by such Holder, and take all such action as may
be required in order to permit the Company to comply with all applicable
requirements of the SEC and any applicable state securities laws and to obtain
any desired acceleration of the effective date of any registration statement
prepared and filed by the Company pursuant to this Agreement.
(c) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to Section 2
hereof, as then in effect, contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, the Holders shall forthwith
discontinue disposition of Subject Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Subject-Shares that was in effect
prior to such amendment or supplement.
(d) The Holders shall pay all underwriting discounts,
commissions and expenses relating to the Subject Shares and fees and
disbursements of the Holders' counsel incurred in connection with the Demand
Registration Statement filed pursuant to Section 2 of this Agreement. The
Company shall pay all other expenses incident to the Company's performance of
or compliance with effecting any such registration, including, without
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with federal or state
securities laws, all word processing, duplicating and
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printing expenses, messenger and delivery expenses, and the fees and expenses
of counsel for the Company and of the Company's independent public accountants,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance.
4. Indemnification and Contribution.
(a) In the event of any registration of any of the
Registrable Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the Holder of such Registrable
Securities, each underwriter of the Registrable Securities, if any, and each
other person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, to which such Holder, underwriter or controlling
person may become subject under the Securities Act, state securities or Blue
Sky laws 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 under which such Registrable Securities were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained in the registration statement, or any amendment or supplement to such
registration statement, or arise out of or are based upon the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the Company will
reimburse such Holder, each underwriter of the Registrable Securities, if any,
and each such controlling person for any legal or any other expenses reasonably
incurred by such Holder, underwriter or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or omission made in such registration statement,
preliminary prospectus or final prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to
the Company, in writing, by or on behalf of such Holder specifically for use in
the preparation thereof.
(b) The Company may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant to
Section 2, that the Company shall have received an undertaking satisfactory to
it from the prospective Holder of such securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this Section 4) the Company, its directors, officers, employees, agents
and affiliates and each other person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus, or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company by such Holder for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however,
that the obligation of such Holders
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hereunder shall be limited to an amount equal to the proceeds to each Holder of
Registrable Securities sold in connection with such registration.
(c) Each party entitled to indemnification under this
Section 4 (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, provided, further, 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 4 to the extent that
such failure to give notice has not had a material adverse effect on the
ability of the Indemnifying Party to defend the claim as to which indemnity is
sought. The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. 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 of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party.
(d) In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder of Registrable Securities exercising rights under this
Agreement, or any controlling person of any such Holder, makes a claim for
indemnification pursuant to this Section 4 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that this Section 4 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling Holder or any such controlling person in circumstances for which
indemnification is provided under this Section 4; then, in each such case, the
Company and such Holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportions so that such Holder is responsible for the portion
represented by the percentage that the public offering price of its Registrable
Securities offered by the registration statement bears to the public offering
price of all securities offered by such registration statement, and the Company
is responsible for the remaining portion; provided, however, that, in any such
case, (A) no such Holder will be required to contribute any amount in excess of
the proceeds to it of all Registrable Securities sold by it pursuant to such
registration statement, and (B) no person or entity guilty of fraudulent
misrepresentation, within the meaning
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of Section 11(f) of the Securities Act, shall be entitled to contribution from
any person or entity who is not guilty of such fraudulent misrepresentation.
5. Conditions Precedent to Registration. The Company's
obligations under this Agreement to effect the registration of any Registrable
Securities are subject to the agreement to and the performance by the Holders
of such Registrable Securities of the obligations of such Holders contained in
this Agreement.
6. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective (a)
upon hand delivery or delivery by telex (with correct answer back received),
telecopy or facsimile at the address or number designated below (if delivered
on a business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is
to be received) or (b) on the first business day following the date of mailing
by express courier service, fully prepaid, addressed to such address, or upon
actual service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing whichever shall first occur. The addresses for such
communications shall be:
If to the Company:
Xxxxxx Xxxxxx, Inc.
Xxxxxx Place at Elm Hill Pike
P. O. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxx
Telecopy:(000) 000-0000
with a copy to:
Bass, Xxxxx & Xxxx
First American Center
Nashville, TN 37238
Attention: Xxxxx X. Xxxxx, III, Esq.
Telecopy: (000)000-0000
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If to a Holder,
to the address of such Holder shown on the stock ledger books of the
Company.
with a copy to:
Xxxxxx Xxxxxxxx, L.L.P.
3500 One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000
Attention: E. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
The Company may from time to time change its address for notices under
this Section 6 by giving at least 10 days' written notice of such changed
address to each of the Holders. Each Holder may from time to time change its
address for notices under this Section 6 by giving at least 10 days' written
notice of such changed address to the Company.
7. Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
8. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto.
9. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
10. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the Holders of at
least 75% of the Registrable Securities; provided, that this Agreement may be
amended with the consent of the Holders of less than all Registrable Securities
only in a manner which affects all Registrable Securities in the same fashion.
No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
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12. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
13. No Third Party Beneficiaries. This Agreement is intended for
the benefit of the Company and the Holders and is not for the benefit of, nor
may any provision hereof be enforced by, any other person.
14. Expiration Date. This Agreement shall expire on July 31, 1995.
15. Governing Law. Upon acceptance by the Holders, this Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of Tennessee without regard to the principles of conflicts of
laws.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be duly executed by its authorized officer and the Holders have executed this
Agreement, each as of the date hereof.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
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Name:
Title:
HOLDERS:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ W. Xxxx Xxxxxxx
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W. Xxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
/s/ C. Xxxxxx Xxxx, Jr., Trustee
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C. Xxxxxx Xxxx, Jr., Trustee for
C. Xxxxxx Xxxx, Jr., Trust U/A/D
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
/s/ X.X. Xxxxxxxxx, Xx.
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X.X. Xxxxxxxxx, Xx.
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxx Xxxxxx
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Xxx Xxxxxx
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