EXHIBIT 3
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of September 9, 1997 by and among Xxxx Xxxxx, Inc., formerly
known as Xxxxx-Xxxxx Holdco., Inc., a Delaware corporation (the "Company"), The
Yucaipa Companies, a California general partnership ("Yucaipa") and each of the
holders of the Company Common Stock (as hereinafter defined) executing this
Agreement (each a "Holder" and collectively, the "Holders").
WHEREAS, this Agreement is made pursuant to that certain Agreement
and Plan of Reorganization and Merger dated as of May 11, 1997 (the
"Reorganization Agreement") by and between Xxxxx'x Food & Drug Centers, Inc., a
Delaware corporation ("Xxxxx") and Xxxx Xxxxx, Inc., a Delaware corporation
("Xxxx Xxxxx"), under which the execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated thereby.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein have the meanings ascribed to them in the
Reorganization Agreement. In addition, the following capitalized terms shall
have the meanings ascribed to them below:
"Affiliate," as applied to any specified Person, shall mean any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person and, in the case of a Person
who is an individual, shall include (i) members of such specified Person's
immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K
under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of
which are such specified Person or members of such Person's immediate family as
determined in accordance with the foregoing clause (i). For the purposes of
this definition, "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Business Day" means any day that is not a Saturday, Sunday or a day
on which banking institutions in New York, New York or Los Angeles, California
are not required to be open.
"Company Common Stock" means the common stock, par value $.01 per
share, of the Company.
"Deferral Period" is defined in Section 2.1.
"Demand Notice" is defined in Section 2.1.
"Demand Registration" is defined in Section 2.1.
"Demanding Holder" means any Holder initiating a registration request
in compliance with Section 2.1(a); provided that any action required or
permitted to be taken under this Agreement by any Demanding Holders shall be
taken by action of the holders of a majority of the Registrable Securities held
by such Demanding Holders.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Holders" means the holders of Company Common Stock and of the
Warrants who have executed this Agreement, and the transferees of each of them.
"Person" means an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Piggyback Registration" is defined in Section 2.2.
"Piggyback Holder" is defined in Section 2.2.
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Public Distribution" shall mean any bona fide underwritten public
distribution of Stock pursuant to an effective registration statement under the
Securities Act or any other applicable law, or any bona fide public sale in an
open market transaction under Rule 144 of the Securities Act (or any successor
rule) if such sale is in compliance with the requirements of paragraphs (c),
(d), (e), (f) and (g) of such Rule (notwithstanding the provisions of paragraph
(k) of such Rule).
"Public Offering" shall mean any bona fide underwritten public
distribution of Stock pursuant to an effective registration statement under the
Securities Act or any other applicable law.
"Registrable Securities" means each share of Stock held by the
Holders, or acquired by the Holders after the date hereof, until (i) it has
been effectively registered under the Securities Act and disposed of by such
Holders pursuant to an effective registration statement, or (ii) it is sold by
such Holders pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act or (iii) it is freely transferable pursuant to Rule
144(k) (or any similar provision then in force) promulgated, and under the
Securities Act. "Registrable Securities" shall include all shares of Company
Common Stock issued or issuable upon exercise of the Warrants.
"Registration Statement" means any registration statement of the
Company relating to a Demand Registration pursuant to Section 2.1, a Piggyback
Registration pursuant to Section 2.2, or a Shelf Registration pursuant to
Section 2.3, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
"Restricted Registration" means any public offering of Registrable
Securities pursuant to a Registration Statement in which the aggregate number
of shares proposed to be offered by the Xxxxx Group and the Yucaipa Group is
restricted by the managing underwriter(s) as contemplated by Sections 2.1(e)
and 2.2(b) hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who sells or proposes to sell
Registrable Securities pursuant to a Registration Statement under the
Securities Act.
"Shelf Registration" or "Shelf Registration Statement" is defined in
Section 2.3.
"Xxxxx Group" is defined in Section 2.1(a).
"Stock" means the following securities: (i) the Company Common Stock
or (ii) any security or other instrument (a) received as a dividend on, or
other payment made to the holders of, the Company Common Stock (or any other
security or instrument referred to in this definition) or (b) issued in
connection with a split of the Company Common Stock (or any other security or
instrument referred to in this definition) or as a result of any exchange or
reclassification of the Company Common Stock (or any other security or
instrument referred to in this definition), reorganization, consolidation,
merger or recapitalization.
"Underwritten Registration" or "Underwritten Offering" means a
registration in which Stock of the Company is sold to an underwriter for re-
offering to the public.
"Warrants" means the Xxxxx'x Warrants as modified pursuant to Section
2.1(e) of the Reorganization Agreement.
"Yucaipa Group" is defined in Section 2.1(a).
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 DEMAND REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. At any time and from time to time on
or after the Effective Time (as defined in the Reorganization Agreement), each
of (i) the holders of a majority of the Registrable Securities held by Yucaipa
and its Affiliates and transferees of any of the foregoing, as a group (the
"Yucaipa Group"), and (ii) the holders of a majority of the Registrable
Securities held by Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxxx X. Xxxxx or
members of their respective families, or any trust of which requests of the
Company for registration with the SEC, under and in accordance with the
provisions of the Securities Act, of all or part (but not less than one million
(1,000,000) shares of Registrable Securities) of their Registrable Securities
(a "Demand Registration") by giving written notice to the Company of such
demand (a "Demand Notice"), provided that the Company shall be required to
effect only one Demand Registration during any six-month period. Each such
Demand Notice will specify the number of Registrable Securities proposed to be
sold pursuant to such Demand Registration and will also specify the intended
method of disposition thereof.
Promptly after receipt of any Demand Notice, but in no event later
than 60 days after receipt of such Demand Notice, the Company shall file a
Registration Statement with the SEC with respect to the Registrable Securities
included in the Demand Notice and shall use its best efforts to have such
Registration Statement declared effective as promptly as practicable; PROVIDED,
HOWEVER, that the Company may postpone the filing of such Registration
Statement for a period of up to 90 days (the "Deferral Period") if the Board of
Directors reasonably determines that (i) such a filing would adversely affect
any proposed financing, acquisition, divestiture or other material transaction
by the Company or (ii) such a filing would otherwise represent an undue
hardship for the Company. The Company shall not be entitled to request more
than one such deferral with respect to any group of Holders requesting a Demand
Registration within any 365-day period. If the Company does elect to defer any
such Demand Registration, the Holders requesting such Demand Registration may,
at their election by written notice to the Company, (i) confirm their request
to proceed with such Demand Registration upon the expiration of the Deferral
Period or (ii) withdraw their request for such Demand Registration in which
case no such request for a Demand Registration shall be deemed to have occurred
for purposes of this Agreement.
The Company shall give written notice of any Demand Notice by any
Holder, which request complies with this Section 2.1(a), within 5 days after
the receipt thereof, to each Holder who did not initially join in such request.
Within 10 days after receipt of such notice, any such Holder may request in
writing that its Registrable Securities be included in such registration, and
the Company shall include in the Demand Registration the Registrable Securities
of each such Holder requested to be so included, subject to the provisions of
Section 2.1(e). Each such request shall specify the number of shares of
Registrable Securities proposed to be sold and the intended method of
disposition thereof.
(b) EFFECTIVE REGISTRATION. Except as provided in subsection (c)
below, a registration will not be deemed to have been effected as a Demand
Registration unless it has been declared effective by the SEC; provided that
if, after it has become effective, the offering of Registrable Securities
pursuant to such registration is or becomes the subject of any stop order,
injunction or other order or requirement of the SEC or any other governmental
or administrative agency, or if any court prevents or otherwise limits the sale
of Registrable Securities pursuant to the registration (for any reason other
than the acts or omissions of the Holders), such registration will be deemed
not to have been effected. If (i) a registration requested pursuant to this
Section 2.1 is deemed not to have been effected in accordance with the
provisions of the preceding sentence or (ii) the registration requested
pursuant to this Section 2.1 does not remain continuously effective for a
period of at least 90 days beyond the effective date thereof or until the
consummation of the distribution by the Holders of the Registrable Securities
included in such registration statement (the "Demand Registration Statement"),
then such Demand Registration Statement shall not count as a Demand
Registration that may be requested by the Demanding Holder(s) in question and
the Company shall continue to be obligated to effect a registration pursuant to
this Section 2.1.
(c) WITHDRAWAL. The Demanding Holders may withdraw all or any part
of the Registrable Securities from a Demand Registration at any time (whether
before or after the filing or effective date of the Demand Registration
Statement), and if all such Registrable Securities are withdrawn, to withdraw
the demand related thereto. If at any time a registration statement is filed
pursuant to a Demand Registration, and subsequently a sufficient number of
Registrable Securities are withdrawn from the Demand Registration so that such
Demand Registration Statement does not cover at least the required amounts
specified by Section 2.1(a), and an additional number of Registrable Securities
is not so included, the Company may (or shall, if requested by the Demanding
Holders) withdraw such Demand Registration Statement; provided that such
withdrawn registration statement will count as a Demand Registration unless the
Demanding Holders elect to bear the expenses associated with such withdrawn
registration statement. If the Demanding Holders elect to bear such expenses,
such expenses shall be borne by the Demanding Holder(s) whose withdrawal of
Registrable Securities resulted in such Demand Registration Statement not
covering the specified required amounts.
(d) SELECTION OF UNDERWRITER. If the Demanding Holders so elect,
the offering of Registrable Securities pursuant to a Demand Registration shall
be in the form of an Underwritten Offering. The Demanding Holders shall select
one or more nationally recognized firms of investment bankers to act as the
managing Underwriter or Underwriters in connection with such offering and shall
select any additional investment bankers and managers to be used in connection
with such offering; provided that such investment bankers and managers must be
reasonably satisfactory to the Company. The Company shall (together with all
Holders of Registrable Securities proposing to distribute such Registrable
Securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting in the manner set forth above.
(e) PRIORITY ON DEMAND REGISTRATIONS. If, in any Demand
Registration involving an Underwritten Offering the managing underwriter or
underwriters thereof advise the Demanding Holders or the Company in writing
that in its or their reasonable opinion the number of Registrable Securities
proposed to be sold in such Demand Registration exceeds the number that can be
sold in such offering or will adversely affect the success of such offering
(including, without limitation, an impact on the selling price or the number of
Registrable Securities that any participant may sell), the Company shall
include in such registration only the number of Registrable Securities, if any,
which in the opinion of such underwriter or underwriters can be sold without
having an adverse effect on the success of the offering and in accordance with
the following priority: (i) first, Registrable Securities held by Demanding
Holders in the group initially requesting such registration, allocated pro rata
among such group (based upon the number of Registrable Securities requested to
be included in such Demand Registration) and (ii) second, pro rata (based upon
the number of Registrable Securities requested to be included in such
registration by such Holders) among the other Holders of Registrable Securities
who have requested to include Registrable Securities in such registration. If
all Registrable Securities requested to be sold in the Underwritten Offering
are included therein, the Company may include other shares of Stock in such
offering in accordance with the following priority, but not to exceed the
number recommended by the managing underwriter or underwriters: (x) first, pro
rata among any other stockholders of the Company having piggyback or other
similar registration rights and (y) second, shares of Stock proposed to be sold
by or for the account of the Company. Notwithstanding the foregoing, if prior
to the filing of any Demand Registration Statement, the Company has received
Demand Notices from both the Xxxxx Group and the Yucaipa Group, then the Xxxxx
Group and the Yucaipa Group shall be permitted to include their Registrable
Securities in any such Demand Registration on an equal basis (i.e. each group
will be entitled to 50% of the remaining share allocation, or such greater
percentage as may be available if the other group elects not to fill its entire
50% allocation).
SECTION 2.2 PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PARTICIPATE IN REGISTRATION. If at any time the
Company proposes to file a registration statement under the Securities Act with
respect to an offering by the Company for its own account or for the account of
any holders of any class of common equity securities (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the SEC) or (ii) a registration statement filed in connection with a
Demand Registration or a Shelf Registration or (iii) a registration statement
filed in connection with an offering of securities solely to the Company's
existing securityholders), then the Company shall give written notice of such
proposed filing to the Holders as soon as practicable (but in no event less
than 20 days before the anticipated filing date), and such notice shall offer
such Holder the opportunity to register such number of shares of Registrable
Securities as each such Holder may request, which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof (or, if the offering is a proposed
Underwritten Offering, that such Holder elects to have the number of
Registrable Securities so specified included in such Underwritten Offering) (a
"Piggyback Registration").
The Company shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed Underwritten Offering to permit the
Registrable Securities requested by the Holders thereof to be included in a
Piggyback Registration (the "Piggyback Holders") to be included on the same
terms and conditions as any similar securities of the Company or any other
securityholder included therein and to permit the sale or other disposition of
such Registrable Securities in accordance with the intended method of
distribution thereof.
No registration effected under this Section 2.2 and no failure to
effect a registration under this Section 2.2(a), shall relieve the Company of
its obligations pursuant to Section 2.1, and no failure to effect a
registration under this Section 2.2(a) and complete the sale of shares in
connection therewith shall relieve the Company of any other obligation under
this Agreement (including, without limitation, the Company's obligations under
Sections 3.2 and 4.1).
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. Unless the registration
statement is being filed pursuant to a Demand Registration (in which case the
priority of piggyback rights shall be as provided in Section 2.1(e) above), if
the managing underwriter or underwriters advise the Company in writing that in
its or their reasonable opinion the number of equity securities of the Company
proposed to be sold in such registration (including Registrable Securities to
be included pursuant to subsection (a) above) will adversely affect the success
of such offering (including, without limitation, an impact on the selling price
or the number of equity securities of the Company that any participant may
sell), the Company shall include in such registration the number of equity
securities of the Company, if any, which in the opinion of such underwriter or
underwriters can be sold without having an adverse effect on the offering and
in accordance with the following priority: (i) first, the securities the
Company proposes to sell for its own account, (ii) second, any Registrable
Securities of the Xxxxx Group and any Registrable Securities of the Yucaipa
Group, on an equal basis (as specified in Section 2.1(e) above), and (iii)
third, pro rata based on the number of Registrable Securities that each Holder
or other Person having similar rights shall have requested to be included
therein.
(c) WITHDRAWAL. The Piggyback Holders may withdraw all or any part
of the Registrable Securities from a Piggyback Registration at any time (before
but not after the effective date of such registration statement), by delivering
written notice of such withdrawal request to the Company, unless such Piggyback
Registration is underwritten, in which case Registrable Securities may not be
withdrawn after the effective date of the Registration Statement.
(d) TERMINATION OF REGISTRATION BY THE COMPANY. If the Company
shall determine for any reason (x) not to register or (y) to delay a
registration which includes Registrable Securities pursuant to this Section
2.2, the Company may, at its election, give written notice of such
determination to the Holders of the Registrable Securities and, thereupon (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses (as
defined below) in connection therewith), without prejudice, however, to the
rights, if any, of any Holder or Holders of Registrable Securities to request
that such registration be effected as a Demand Registration under Section 2.1,
and (ii) in the case of a delay in registering, shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other shares.
SECTION 2.3 SHELF REGISTRATION.
(a) FILING AND EFFECTIVENESS. Upon the request of the Demanding
Holders in the Yucaipa Group at any time prior to the first anniversary of the
Effective Time, the Company shall cause to be filed with the SEC as promptly as
practicable after such request, but in no event later than 60 days thereafter,
a shelf registration statement pursuant to Rule 415 under the Securities Act (a
"Shelf Registration" or a "Shelf Registration Statement"), which Shelf
Registration Statement shall provide for resales of all Registrable Securities
held by members of the Yucaipa Group who shall have provided the information
required pursuant to Section 3.1(b). The Xxxxx Group shall be afforded the
opportunity to include any Registrable Securities held by the Xxxxx Group in
such Shelf Registration. The Company shall use its best efforts to have such
Shelf Registration declared effective and to keep such Shelf Registration
Statement continuously effective, supplemented and amended to the extent
necessary to ensure that it is available for resales of Registrable Securities
by such Holders, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
SEC as announced from time to time, for a period of at least one (1) year
following the date on which such Shelf Registration Statement becomes effective
under the Securities Act; provided, however, that, notwithstanding any other
provisions of this Agreement, with respect to any registrable Securities, the
Company shall not be obligated to effect any Shelf Registration Statement, or
keep any Shelf Registration Statement effective, at any time or for any period
after the fifth anniversary of the Effective Time. A request of the Demanding
Holders in the Yucaipa Group under this Section 2.3(a) shall be deemed to be a
request for a Demand Registration under Section 2.1 above.
(b) EFFECTIVE REGISTRATION. A registration will not be deemed to
have been effected as a Shelf Registration unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the acts or omissions of the Holders), such registration will be deemed not to
have been effected. If (i) the Shelf Registration is deemed not to have been
effected in accordance with the provisions of the preceding sentence or (ii)
the Shelf Registration does not remain continuously effective for the period
described in subsection (a) above, then such Shelf Registration Statement shall
not count as a Shelf Registration and the Company shall continue to be
obligated to effect a registration pursuant to this Section 2.3.
(c) SUSPENSION. With respect to any Shelf Registration that has
been declared effective (i) the Company may suspend use of such Shelf
Registration at any time if the continued effectiveness thereof would require
the Company to disclose a material financing, acquisition or other corporate
transaction, which disclosure the Board of Directors of the Company shall have
determined in good faith is not in the best interests of the Company and its
stockholders, and (ii) the Company may suspend use of such Shelf Registration
during any period if each of the Company and the holders of a majority of the
Registrable Securities included in such Shelf Registration consents in writing
to such suspension for such period.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1 REGISTRATION PROCEDURES.
(a) GENERAL PROVISIONS. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Registrable Securities, the Company shall:
(1) prepare and file with the SEC a registration statement with
respect to such Registrable Securities within the time periods specified
herein, make all required filings with the NASD and use its best efforts
to cause such registration statement to become effective as promptly as
practicable (subject to the Company's right to withdraw the registration
statement under the circumstances described in Sections 2.1(c) or 2.2(d));
(2) promptly prepare and file with the SEC such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set
forth in Sections 2.1, 2.2 or 2.3, as applicable, or such shorter period
as will terminate when all Registrable Securities covered by such
Registration Statement have been sold (subject to Section 2.3(c)); cause
the Prospectus to be supplemented by a required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities
Act, and to comply fully with the applicable provision of Rules 424 and
430A under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution
by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(3) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Sections 2.1, 2.2 or 2.3, as applicable (subject
to Section 2.3(c)); upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective and
usable for resale of Registrable Securities during the period required by
this Agreement, the Company shall file promptly an appropriate amendment
to such Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A) or
(B), use its best efforts to cause such amendment to declared effective
and such Registration Statement and related Prospectus to become usable
for their intended purposes(s) as soon as practicable thereafter;
(4) provide (A) the Holders of Registrable Securities participating
in the registration, (B) the underwriters (which term, for purposes of
this Agreement, shall include a Person deemed to be an underwriter within
the meaning of Section 2(11) of the Securities Act), if any, of the
Registrable Securities to be registered, (C) the sale or placement agent
therefor, if any, (D) counsel for such underwriters or agent, and (E)
counsel for the Holders thereof, as selected by Holders of a majority of
the Registrable Securities covered by such registration statement, the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the SEC, and
each amendment or supplement thereto, and for a reasonable period prior to
the filing of such registration statement, and throughout the period
specified in Section 3.4(b) hereof, make available for inspection by the
parties referred to in (A) through (E) above such financial and other
information and books and records of the Company, provide access to
properties of the Company and cause the officers, directors, employees,
counsel and independent certified public accountants of the Company to
respond to such inquiries as shall be reasonably necessary to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act;
(5) advise the underwriters, if any, and Selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the SEC for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration
Statement under the Securities Act or of the suspension by any state
securities commission of the qualification of the Registrable Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, (D) of the existence of any
fact or the happening of any event that makes any statement of a material
fact made in the registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the SEC shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Registrable Securities under state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(6) furnish to each Selling Holder named in any Registration
Statement or Prospectus and each of the underwriter(s) in connection with
such sale, if any, such number of copies of any Registration Statement or
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration Statement and
all exhibits filed therewith), reasonably requested by such Person;
(7) if requested by any selling Holders or the underwriter(s) in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and such
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities, information with respect to
the principal amount of Registrable Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Registrable Securities to be sold in such offering,
and make all required filing of such Prospectus supplement or post-
effective amendment as soon as practicable after the Company is notified
of the matters to be included in such Prospectus supplement or post-
effective amendment;
(8) deliver to each Selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use of
the Prospectus and any amendment or supplement thereto by each of the
Selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(9) in connection with any Underwritten Offering pursuant to a
Demand Registration, enter into an underwriting agreement with one or more
underwriter designated in accordance with this Agreement, such agreement
to be of the form, scope and substance as is customary in underwritten
offerings, and take all such other actions as are reasonably requested by
the managing underwriter(s) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connections (i)
make such representations and warranties to the underwriters in form,
scope and substance as are customarily made by issuers to underwriters in
underwritten offerings with respect to the business of the Company; (ii)
obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter(s)) addressed to the managing
underwriter(s) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by the underwriters; (iii) obtain "comfort" letters
and updates thereof from the Company's independent certified public
accountants addressed to the underwriters, such "comfort" letters to be in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; (iv) deliver
such documents and certificates as may be reasonably requested by the
managing underwriter(s) to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement;
(10) prior to any public offering of Registrable Securities,
cooperate with the Selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification
of the Registrable Securities under the securities or Blue Sky laws of
such jurisdictions as the Selling Holders or underwriter(s), if any, may
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions or the Registrable Securities
covered by the applicable Registration Statement; provided, however, that
the Company shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, except
as is required as a result of the Registration Statement, in any
jurisdiction where it is not now so subject;
(11) in connection with any sale of Registrable Securities that will
result in such securities no longer being Registrable Securities,
cooperate with the Selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and to register such Registrable Securities in such
denominations and such names as the Selling Holders or the underwriter(s),
if any, may request at least two Business Days prior to such sale of
Registrable Securities;
(12) if requested by the Selling Holders, provide a CUSIP number for
all Registrable Securities not later than the effective date of the
Registration Statement covering such Registrable Securities and provide
the Company's transfer agent(s) and registrar(s) for the Registrable
Securities with printed certificates for the Registrable Securities;
(13) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD), and use their best efforts to cause such Registration Statement
to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Selling Holders or
underwriters, if any, to consummate the disposition of such Registrable
Securities;
(14) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 under the Securities Act
(which need not be audited) covering a period of at least twelve month
periods, but not more than eighteen months, beginning with the first month
of the Company's first quarter commencing after the effective date of the
Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(15) cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which securities of
the same class issued by the Company are then listed if requested by the
Selling Holders holding a majority of the Registered Securities or the
managing underwriter(s), if any.
Each Selling Holder, upon receipt of any notice from the Company of
the happening of any event described in subsection (5)(B), (C), or (D) of
Section 3.1(a) or in Section 2.3(c) (a "Suspension Notice"), shall forthwith
discontinue disposition of the Registrable Securities pursuant to the
Registration Statement relating thereto until such Selling Holder receives
copies of the supplemented or amended Prospectus contemplated hereby or until
it is advised in writing (the "Advice") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemented filings that are incorporated by reference in the Prospectus, and,
if so directed by the Company, such Selling Holder will, or will request the
managing underwriter or underwriters, if any, to deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Selling Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. The period from the
date on which any Holder receives a Suspension Notice to the date on which any
Holder receives either the Advice or copies of the supplemented or amended
Prospectus contemplated hereby relating to such notice shall hereinafter be
referred to as the "Suspension Period." If the Company shall give any
Suspension Notice, (i) the Company shall use its best efforts and take such
actions as are reasonably necessary to render Advice and end the Suspension
Period as promptly as practicable and (ii) the time periods for which a
Registration Statement is required to be kept effective pursuant to Sections
2.1, 2.2 or 2.3, as the case may be, shall be extended by the number of days
during the period from and including the date of the giving of such Suspension
Notice to and including the date when each Selling Holder shall have received
(A) the copies of the supplemented or amended Prospectus contemplated by
Section 3.1(a) or (B) the Advice.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION. No Holder of
Registrable Securities may include any of its Registrable Securities in any
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, such information as the Company may reasonably request specified in
item 507 of Regulation S-K under the Securities Act for use in connection with
any Registration Statement or Prospectus or preliminary Prospectus included
therein. Each Holder as to which any Registration Statement is being effected
agrees to furnish promptly to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
SECTION 3.2 REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Section 3.2 will be paid by the Company, regardless of
whether any registration statement required hereunder becomes effective,
including, without limitation:
(1) all registration and filing fees;
(2) fees and expenses of compliance with securities or blue sky laws
(including, without limitation, reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the
laws of such jurisdictions as the managing underwriters or Holders of
Registrable Securities being sold may designate);
(3) printing (including, without limitation, expenses of printing or
engraving certificates for the Registrable Securities in a form eligible
for trading on the New York Stock Exchange or for deposit with the
Depository Trust Company and of printing prospectuses), messenger,
telephone and delivery expenses;
(4) reasonable fees and disbursements of counsel for the Company;
(5) reasonable fees and disbursements of all independent certified
public accountants of the Company (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or
incident to such performance);
(6) fees and expenses of other Persons retained by the Company; and
(7) fees and expenses associated with any NASD filing required to be
made in connection with the registration of the Registrable Securities,
including, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to
be retained in accordance with the rules and regulations of the NASD (all
such expenses being herein called "Registration Expenses").
(b) The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
Registrable Securities to be registered on Nasdaq or on each national
securities exchange on which similar securities issued by the Company are then
listed, rating agency fees and the fees and expenses of any Person, including
special experts, retained by the Company.
SECTION 3.3 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder
may participate in any Underwritten Registration hereunder unless such Holder
(i) agrees to sell its Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, underwriting agreements, hold-back agreements letters and
other documents customarily required under the terms of such underwriting
arrangements. Notwithstanding the foregoing, (x) no Selling Holder shall be
required to make any representations or warranties except those which relate
solely to such Holder and its intended method of distribution, and (y) the
liability of each such Holder to any underwriter under such underwriting
agreement will be limited to liability arising from misstatements or omissions
regarding such Holder and its intended method of distribution and any such
liability shall not exceed an amount equal to the amount of net proceeds such
Holder derives from such registration; provided, however, that in an offering
by the Company in which any Holder requests to be included in a Piggyback
Registration, the Company shall use its best efforts to arrange the terms of
the offering such that the provisions set forth in clauses (x) and (y) of this
Section 3.3 are true. Nothing in this Section 3.3 shall be construed to create
any additional rights regarding the registration of Registrable Securities in
any Person otherwise than as set forth herein.
SECTION 3.4 HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC DISTRIBUTION BY HOLDER OF REGISTRABLE
SECURITIES. Upon the written request of the managing underwriter or
underwriters of a Public Offering, each Holder of Registrable Securities shall
not effect any Public Distribution of such securities, or any securities
convertible into or exchangeable or exercisable for such securities, including
a sale pursuant to Rule 144 under the Securities Act (except as part of such
Public Offering), during the 14-day period prior to, and during the 90-day
period following, the offering date for each Public Offering made pursuant to
such registration statement (as identified by such underwriter or underwriters
or the Company in good faith). The foregoing provisions shall not apply to any
Holder that is prevented by applicable statute or regulation from entering into
any such agreement; provided, however, that any such Holder shall undertake not
to effect any Public Distribution of the class of securities covered by such
registration statement (except as part of such Underwritten Offering) during
such period unless it has provided 60 days' prior written notice of such Public
Distribution to the managing underwriter.
(b) RESTRICTIONS ON PUBLIC DISTRIBUTION BY THE COMPANY AND OTHERS.
The Company agrees and it shall use its best efforts to cause its Affiliates
(other than Persons who are Holders hereunder) to agree: (1) not to effect any
Public Distribution of any securities being registered in accordance with
Article II hereof, or any securities convertible into or exchangeable or
exercisable for such securities, during the 14-day period prior to, and during
the 90-day period following, the offering date for each Public Offering made
pursuant to a registration statement filed under Article II hereof, if
requested in writing by the managing underwriters (except as part of such
Public Offering or pursuant to registrations in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend reinvestment plans
or stock options or other employee benefit plans); and (2) to use its best
efforts to cause each Holder of its privately placed Registrable Securities
that are issued by the Company at any time on or after the date of this
Agreement to agree not to effect any Public Distribution, including a sale
pursuant to Rule 144 under the Securities Act, of any Registrable Securities
during the period set forth in clause (1) above (except as part of such Public
Offering, if and to the extent permitted).
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Selling Holder, each person, if any, who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) (hereinafter referred to as a "controlling
person"), the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (each an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemnified Holder) directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
Prospectus (or any amendment or supplement thereto), or 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, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein.
SECTION 4.2 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Selling Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors, officers and any person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company and its respective officers, directors, partners,
employees, representatives and agents of each such person, to the same extent
as the foregoing indemnity from the Company to each of the Indemnified Holders,
but only with respect to losses, claims, damages, liabilities, judgments,
actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to the Company) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (or any amendment or supplement thereto),
or 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, to the extent, but only to the extent, that such untrue statement
or omission is contained in any information relating to such Holder furnished
in writing by such Holder expressly for use in any Registration Statement or
Prospectus. In case any action or proceeding shall be brought against the
Company or its directors or officers or any such controlling person in respect
of which indemnity may be sought against a Holder of Registrable Securities,
such Holder shall have the rights and duties given the Company, and the Company
or its directors or officers or such controlling person shall have the rights
and duties given to each Holder by the preceding paragraph. Each Selling
Holder also agrees to indemnify and hold harmless each other Selling Holder or
underwriters participating in the distribution on substantially the same basis
as that of the indemnification of the Company provided in this section 4.2. In
no event shall the liability of any selling Holder hereunder be greater in
amount than the dollar amount of the proceeds received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Registration Statement or Prospectus.
SECTION 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (an "Indemnified Party") will (i)
promptly give notice of any claim, action or proceeding (including any
governmental or regulatory investigation or proceeding) or the commencement of
any such action or proceeding to the Person against whom such indemnity may be
sought (an "Indemnifying Party"); provided that the failure to give such notice
shall not relieve the Indemnifying Party of its obligations pursuant to this
Agreement except to the extent that such Indemnifying Party has been prejudiced
in any material respect by such failure, and (ii) permit the Indemnifying Party
to assume the defense of such claim with counsel reasonably satisfactory to
such Indemnified Party; provided that the Indemnified Party shall have the
right to employ separate counsel and participate in the defense of such claim,
but the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (a) the Indemnifying Party has agreed to pay for such
fees and expenses, or (b) the Indemnifying Party shall have failed to assume
the defense of such claim and employ counsel reasonably satisfactory to such
Indemnified Party or (c) in the reasonable judgment of such Indemnified Party,
based upon advice of its counsel, a conflict of interest may exist between such
Indemnified Party and the Indemnifying Party with respect to such claims. If
such defense is not assumed by the Indemnifying Party, the Indemnifying Party
will not be subject to any liability for any settlement of any such claim
effected without the Indemnifying Party's prior written consent, which consent
shall not be unreasonably withheld. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify and hold harmless any Indemnified
Party from and against any loss, claim damage, liability or expense by reason
of any settlement of any such claim or action. No Indemnifying Party shall,
without the prior written consent of each Indemnified Party, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Party is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional
release of each Indemnified Party from all liability arising out of such
action, claim, litigation or proceeding. An Indemnifying Party who is not
entitled to, or elects not to, assume the defense of the claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such Indemnifying Party with respect to such claim, unless in
the reasonable judgment of any Indemnified Party a conflict of interest may
exist between such Indemnified Party and any other such Indemnified Parties
with respect to such Claim, in which event the Indemnifying Party shall be
obligated to pay the fees and expenses of such additional counsel or counsels.
SECTION 4.4 CONTRIBUTION. If the indemnification provided for in
this Article IV is unavailable to an Indemnified Party (other than by reason of
exceptions provided in those Sections) in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each applicable
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall have
a joint and severable obligation to contribute to the amount paid or payable by
such Indemnified Party as a result of such losses, claims, damages, liabilities
or expenses 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 which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying
Party, on the one hand, and of the Indemnified Party, on the other, 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 amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in the second paragraph of Section 4.1, any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, none of the Indemnified
Holders shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds received by such Holder with respect to
the Registrable Securities exceeds the greater of (A) the amount paid by such
Holder for its Registrable Securities and (B) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The Holders' obligation to
contribute pursuant to this Section 4.4 are several in proportion to the
respective number of Registrable Securities held by each of the Holders
hereunder and not joint.
For purposes of this Article IV, each controlling person of a Holder
shall have the same rights to contribution as such Holder, and each officer,
director, and person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as the Company, subject in each case to
the limitations set forth in the immediately preceding paragraph. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under this
Article IV, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from who contribution may be sought from any obligation it or they
may have under this Article IV or otherwise except to the extent that it has
been prejudiced in any material respect by such failure. No party shall be
liable for contribution with respect to any action or claim settled without its
written consent; provided, however, that such written consent was not
unreasonably withheld.
SECTION 4.5 ADDITIONAL INDEMNITY. The indemnity, contribution and
expense reimbursement obligations under this Article IV shall be in addition to
any liability each Indemnifying Party may otherwise have; provided, however,
that any payment made by the Company which results in an Indemnified Party
receiving from any source(s) indemnification, contribution or reimbursement for
an amount in excess of the actual loss, liability or expense incurred by such
Indemnified Party, shall be refunded to the Company by the Indemnified Party
receiving such excess payment.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 RULE 144. The Company agrees it will file in a timely
manner all reports required to be filed by it pursuant to the Securities Act
and the Exchange Act and the rules and regulations adopted by the SEC
thereunder and will take such further action as any Holder of Registrable
Securities may reasonably request in order that such Holder may effect sales of
Registrable Securities without registration within the limitations of the
exemptions provided by Rule 144, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC. At any
reasonable time and upon the request of a Holder of Registrable Securities, the
Company will furnish such Holder with such information as may be necessary to
enable the Holder to effect sales of Registrable Securities pursuant to Rule
144 under the Securities Act and will deliver to such Holder a written
statement as to whether it has complied with such information and requirements.
SECTION 5.2 SPECIFIC PERFORMANCE. Each Holder, in addition to being
entitled to exercise all rights provided herein or granted by law, including
recovery of liquidated or other damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at
law would be adequate.
SECTION 5.3 OTHER AGREEMENTS. Notwithstanding any other provisions
of this Agreement, the Company shall have no obligation to effect a
registration of any of the Registrable Securities hereunder if and to the
extent any such registration would limit the number of shares registered and
sold pursuant to, or otherwise conflict with the provisions of, the
Registration Rights Agreement, dated December 11, 1981, by and among FMI
Acquisition Corporation (now Xxxx Xxxxx, Inc.,), FMI Associates Limited
Partnership and certain executive officers of FMI Acquisition Corporation (now
Xxxx Xxxxx, Inc.,), and the Assignment thereof dated January 27, 1997 (the "FMI
Agreement"). By way of example only and without limiting the foregoing, if, in
connection with an Underwritten Offering, the underwriters of such offering
conclude that it would be inadvisable to register and sell the total number of
shares with respect to which registration has been requested under this
Agreement and the FMI Agreement, any reduction in the total number of shares to
be registered and sold shall first reduce the number of shares to be registered
and sold pursuant to this Agreement before the number of shares to be
registered and sold pursuant to the FMI Agreement shall be reduced. The
Company will not on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof.
SECTION 5.4 CHARTER AMENDMENTS AFFECTING THE COMPANY'S COMMON STOCK.
The Company will not amend its Certificate of Incorporation in any respect that
would materially and adversely affect the rights of the Holders hereunder.
SECTION 5.5 AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding shares of Registrable
Securities held by each of the Xxxxx Group and the Yucaipa Group, respectively.
SECTION 5.6 NOTICES. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party to
the others shall be made in writing, by hand-delivery, telegraph, telex,
telecopier, registered first-class mail or air courier guaranteeing overnight
delivery as follows:
if to the Company, to:
Xxxx Xxxxx, Inc.
0000 XX 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
if to any Holder:
to the address specified below such Holder's name on the
signature pages hereto;
or to such other place and with such other copies as any party hereto may
designate as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied: and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery.
SECTION 5.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities or of the Warrants,
provided that the Company may not assign its rights or obligations under this
Agreement to any other person or entity without the written consent of a
majority of the outstanding shares of Registrable Securities held by each of
the Xxxxx Group and the Yucaipa Group, respectively.
SECTION 5.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 5.9 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 5.10 GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
regard to the choice of law provisions thereof.
SECTION 5.11 SEVERABILITY. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
SECTION 5.12 ENTIRE AGREEMENT. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
SECTION 5.13 PRONOUNS. Whenever the context may require, any
pronouns used herein shall be deemed also to include the corresponding neuter,
masculine or feminine forms.
SECTION 5.14 ATTORNEY'S FEES. In any action or proceeding
brought to enforce any provision of this Agreement, the successful party shall
be entitled to recover reasonable attorney's fees in addition to its costs and
expenses and any other available remedy.
SECTION 5.15 SECURITIES HELD BY THE COMPANY OR ITS
SUBSIDIARIES. Whenever the consent or approval of Holders of a specified
percentage or Registrable Securities is required hereunder, Registrable
Securities held by the Company or its Subsidiaries shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
SECTION 5.16 FURTHER ASSURANCES. Each party shall cooperate
and take such action as may be reasonably requested by another party in order
to carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
SECTION 5.17 TERMINATION. Unless sooner terminated in
accordance with its terms or as otherwise herein provided, including
specifically in Section 2.3(a), this Agreement shall terminate upon the earlier
to occur of (i) the mutual agreement by the parties hereto, (ii) with respect
to any Holder, such Holder ceasing to own any Registrable Securities, (iii) the
fifteenth anniversary of the Effective Time, or (iv) with respect to the
Yucaipa Group or the Xxxxx Group, the date on which the aggregate number of
shares of outstanding Registrable Securities held by the Yucaipa Group or the
Xxxxx Group, as applicable, is less than 20% of the Registrable Shares
originally held by the Yucaipa Group or the Xxxxx Group, as applicable,
following the consummation of the transactions contemplated by the
Reorganization Agreement; PROVIDED, that the foregoing clause (iv) shall not
apply as to any member of the Yucaipa Group or the Xxxxx Group, as applicable,
if, as of such date, such member of the Yucaipa Group or the Xxxxx Group, as
applicable, is an "affiliate" of the Company within the meaning of the
Securities Act.
(signature page follows)
IN WITNESS HEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
XXXX XXXXX, INC.
By: /S/ XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
/S/ XXXXXXX X. XXXXX
XXXXXXX X. XXXXX
Address: 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
/S/ XXXX X. XXXXX
XXXX X. XXXXX
Address:
/S/ XXXXXXX X. XXXXX
XXXXXXX X. XXXXX
Address:
TRUST FOR THE
CHILDREN OF XXXXXXX X. XXXXX
By: /S/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Trustee
Address:
TRUST FOR THE
CHILDREN OF XXXX X. XXXXX
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Title: Trustee
Address:
TRUST FOR THE
CHILDREN OF XXXXXXX X. XXXXX
By: /S/ XXXXXXX X. XXXXX
Name: Xxxxxxx X. Xxxxx
Title: Trustee
Address:
THE YUCAIPA COMPANIES
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA SSV PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA SMITTY'S PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA SMITTY'S PARTNERS II, L.P.
By: The Yucaipa Companies
Title: General Partner
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
YUCAIPA ARIZONA PARTNERS, L.P.
By: The Yucaipa Companies
Its: General Partner
By: /S/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Address: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
