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Exhibit 99(a)
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is dated as of October 1, 1997
("Agreement") and among THE XXXXXX-XXXX COMPANY, an Ohio corporation
("Xxxxxx-Xxxx"), NATIONAL CITY BANK, as administrator of The Xxxxxx-Xxxx Company
Employee Stock Purchase Plan (the "Administrator"), and NATIONAL CITY BANK, as
agent of The Xxxxxx-Xxxx Company Dividend Reinvestment Service (the "Agent").
Recitals
X. Xxxxxx-Xxxx holds certain of its Common Shares, without par
value ("Shares"), in its treasury.
X. Xxxxxx-Xxxx plans to sell not in excess of 200,000 Shares
held in its treasury (the "Registered Shares") in the four years immediately
following the Effective Date (as defined in Section 3(a) of this Agreement).
C. Each of the Administrator and the Agent (individually, a
"Fiduciary," and collectively, the "Fiduciaries") has occasion, from time to
time, to acquire varying amounts of Shares in order to fulfill its obligations
under The Xxxxxx-Xxxx Company Employee Stock Purchase Plan and The Xxxxxx-Xxxx
Company Dividend Reinvestment Service (collectively, the "Plans"), respectively.
D. The Fiduciaries desire to purchase from Xxxxxx-Xxxx, and
Xxxxxx-Xxxx desires to sell to the Fiduciaries, all or a portion of the
Registered Shares.
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NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, on the basis of the representations and
warranties contained herein, and as an inducement to Xxxxxx-Xxxx to effect the
registration and qualification of the Registered Shares under applicable law,
the parties hereto hereby agree as follows:
1. Sales of Registered Shares to Fiduciaries. (a) (i) From the
Effective Date until the same day of the eleventh month following the Effective
Date, (ii) from the first anniversary of the Effective Date until the same day
of the eleventh month following such anniversary, (iii) from the second
anniversary of the Effective Date until the same day of the eleventh month
following such anniversary, and (iv) from the third anniversary of the Effective
Date until the same day of the eleventh month following such anniversary,
Xxxxxx-Xxxx agrees, to the extent there are Registered Shares remaining in the
Annual Share Allotment (as defined in Section 1(c) below), to sell to a
Fiduciary that number of Registered Shares which a Fiduciary may from time to
time request for a per Share purchase price equal to the average of the high and
low sales prices of Shares on the American Stock Exchange on the nearest trading
date before the date of sale. No brokerage fee or commission shall be paid by or
to any party in connection with any sale of Registered Shares pursuant to this
Section 1(a).
(b) Each Fiduciary agrees that, except as may be otherwise
required under applicable law, for so long as this Agreement remains in effect,
to the extent it seeks to acquire Shares, it shall attempt to purchase
Registered Shares from Xxxxxx-Xxxx before attempting to purchase Shares from any
other person or entity; provided, however, except as expressly provided herein,
nothing in this Agreement is intended or shall be construed to require any
Fiduciary to purchase Registered Shares.
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(c) The "Annual Share Allotment" from the Effective Date until
the end of the day preceding the first anniversary of the Effective Date shall
mean 50,000 Registered Shares, and from the first anniversary of the Effective
Date until the end of the day preceding the second anniversary of the Effective
Date shall mean 50,000 Registered Shares (plus any Registered Shares from the
Annual Share Allotment for the prior year which were not sold pursuant to this
Agreement), and from the second anniversary of the Effective Date until the end
of the day preceding the third anniversary of the Effective Date shall mean
50,000 Registered Shares (plus any Registered Shares from the Annual Share
Allotment for the prior year which were not sold pursuant to this Agreement),
and from the third anniversary of the Effective Date until the end of the day
preceding the fourth anniversary of the Effective Date shall mean 50,000
Registered Shares (plus any Registered Shares from the Annual Share Allotment
for the prior year which were not sold pursuant to this Agreement); provided,
however, that the number of Registered Shares set forth above may be increased
or decreased as provided in Section 9 hereof.
2. Sales of Registered Shares to Third Parties. (a) From the
day following the last day of the period described in any of clauses (i), (ii),
(iii) or (iv) of Section 1(a) hereof until the day preceding the next
anniversary of the Effective Date, Xxxxxx-Xxxx may sell any Registered Shares
remaining in the Annual Share Allotment to any person or entity; provided,
however, no sales shall be made under this Section 2 unless, upon inquiry of
Xxxxxx-Xxxx, the Fiduciaries have advised Xxxxxx-Xxxx not less than two business
days prior to any proposed sale that no Fiduciary anticipates purchasing any
Registered Shares prior to the next anniversary of the Effective Date. If a
Fiduciary advises Xxxxxx-Xxxx in response to an inquiry pursuant to the
preceding sentence that it anticipates
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purchasing Registered Shares prior to the next anniversary of the Effective
Date, such Fiduciary shall estimate the number of Registered Shares that it
anticipates purchasing, which number of Registered Shares shall be reserved from
the Registered Shares remaining in the Annual Share Allotment for that year and,
unless included in the Annual Share Allotment for the following year, such
Registered Shares shall not be available for sale to a third party pursuant to
this Section 2.
3. Registration Statement. (a) Xxxxxx-Xxxx shall prepare and
file with the Securities and Exchange Commission ("SEC") one or more
registration statements on Form S-3, or other appropriate form under the
Securities Act of 1933 (the "Act"), in respect of the Registered Shares.
Xxxxxx-Xxxx shall use all reasonable efforts to cause such registration
statement(s) (the "Registration Statement") to become effective and will advise
each of the Fiduciaries when it has become effective. Xxxxxx-Xxxx shall also
advise each of the Fiduciaries promptly of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, and Xxxxxx-Xxxx shall use all
reasonable efforts to prevent the issuance of any such stop order and to obtain
as soon as possible the lifting thereof, if issued. Xxxxxx-Xxxx shall use all
reasonable efforts to comply with the Act and the Securities Exchange Act of
1934 (the "Exchange Act") so as to permit the continuance of sales of and
dealing in the Registered Shares for a period of four years following the day
the Registration Statement first becomes effective (the "Effective Date").
Xxxxxx-Xxxx shall furnish to each Fiduciary a copy of the Registration Statement
and all amendments and supplements thereto, any
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preliminary and the final prospectus contained therein (the "Prospectus") and
all amendments and supplements thereto, in each case as soon as available.
(b) Xxxxxx-Xxxx shall pay or cause to be paid all costs and
expenses incurred in connection with the transactions contemplated by this
Section 3, including, without limitation, fees and disbursements of counsel (but
excluding any fees and disbursements of counsel for any Fiduciary); costs and
expenses in connection with the preparation, printing and delivery of the
Registration Statement, the Prospectus and the certificates for the Registered
Shares; fees and expenses of the transfer agent and registrar for the Shares;
accounting fees and disbursements; and any transfer taxes on any sales of
Registered Shares.
(c) In connection with the distribution of the Prospectus, and
all amendments and supplements thereto to all participants in the Plans,
Xxxxxx-Xxxx shall deliver the appropriate number of copies of the Prospectus,
and all amendments or supplements thereto, to the Fiduciaries as soon as
available.
4. Representations and Warranties of Xxxxxx-Xxxx. Xxxxxx-Xxxx
represents and warrants to each Fiduciary that:
(a) Xxxxxx-Xxxx has full legal right, power and authority to
enter into this Agreement; this Agreement has been duly authorized, executed and
delivered by Xxxxxx-Xxxx; and, when duly executed and delivered by each of the
other parties hereto, this Agreement will constitute a valid and binding
obligation of Xxxxxx-Xxxx.
(b) Xxxxxx-Xxxx has full legal right, power and authority to
sell the Registered Shares to be sold pursuant to this Agreement.
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(c) Upon delivery of the consideration for any Registered
Shares, the purchaser acquiring the Registered Shares pursuant to this Agreement
will acquire good and marketable title to such Registered Shares, free and clear
of any lien, pledge, equity, restriction, claim or encumbrance.
5. Representations and Warranties of the Fiduciaries. Each
Fiduciary represents and warrants to Xxxxxx-Xxxx that it has full legal right,
power and authority to enter into this Agreement, that this Agreement has been
duly authorized, executed and delivered by such Fiduciary and, that when duly
executed and delivered by each of the other parties hereto, this Agreement will
constitute a valid and binding obligation of such Fiduciary.
6. Covenant of Xxxxxx-Xxxx. From the Effective Date until the
earlier of the termination of this Agreement pursuant to Section 8 or the fourth
anniversary of the Effective Date, Xxxxxx-Xxxx shall not sell any Registered
Shares except pursuant to this Agreement.
7. Covenant of the Fiduciaries. The Fiduciaries shall furnish
a copy of the Prospectus, and all amendments and supplements thereto, received
by them from Xxxxxx-Xxxx to all participants in the Plans as promptly as
possible.
8. Termination and Amendment. This Agreement may be terminated
at any time by the written notice of Xxxxxx-Xxxx to the Fiduciaries, and upon
such notice no party hereto shall have any further obligation to comply with the
terms and provisions of this Agreement. This Agreement may only be amended by
the unanimous written consent of the parties hereto. Each party agrees that it
shall not withhold its consent to any amendment to
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this Agreement which amendment cannot reasonably be construed to affect the
rights or obligations of such party hereunder.
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9. Protection Against Dilution. In case of a dividend payable
in Shares or the recapitalization of Xxxxxx-Xxxx through a split of outstanding
Shares or a combination of such outstanding Shares into a lesser number, any
number of Registered Shares provided for in this Agreement shall be adjusted so
that the new number when divided by the number of outstanding Shares immediately
following such event equals the quotient of the number provided in this
Agreement (after any prior adjustments pursuant to this Section 9) divided by
the number of Shares outstanding immediately prior to such event.
10. Survival. The respective covenants, representations and
warranties of the parties contained in this Agreement shall survive delivery of
and payment for the Registered Shares and any termination of this Agreement.
11. Notices. All communications under this Agreement shall be
in writing and shall be effective when sent to each party at the address set
forth beneath its signature or, if any party has designated a different address
by notice to the others, then to the last address so designated.
12. Successors; Governing Law. This Agreement shall inure to
the benefit of and be binding upon each of the parties hereto and their
respective successors. This Agreement and its provisions are for the sole
benefit of only such parties. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
12, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. This Agreement shall be governed by
and construed in accordance with the internal substantive laws of the State of
Ohio.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective duly authorized officers as of the day and year
first above written.
THE XXXXXX-XXXX COMPANY
By: /s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
Secretary and Assistant Treasurer
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
NATIONAL CITY BANK, as
Administrator of The Xxxxxx-Xxxx
Company Employee Stock Purchase Plan
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
NATIONAL CITY BANK, as Agent of
The Xxxxxx-Xxxx Company Dividend
Reinvestment Service
By: /s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
Vice President
Address: 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
