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EXHIBIT 10.27
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of the 11th day
of August, 1996 among Xxxxxx & Xxxxx, Inc., a Delaware corporation ("FRI" or the
"Company"), Xxxxxxx X. Xxxxx, XX ("Xxxxx") and the Xxxxx Family Limited
Partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, Xxxxx is Vice-Chairman of the Board of Directors and
President of the Company; and
WHEREAS, Xxxxx and the Partnership are currently the record owners
of not fewer than 3,450,000 shares of Common Stock (as hereinafter defined); and
WHEREAS, FRI and Xxxxx have entered into that certain agreement (the
"Termination Agreement"), dated the date hereof, pursuant to which Xxxxx agrees,
for the consideration set forth therein, to resign as an officer of FRI; and
WHEREAS, in connection with the Termination Agreement, Xxxxx, the
Partnership and Xxxxx X. Xxxxxx ("Xxxxxx") have entered into that certain
agreement (the "Option Agreement"), dated the date hereof, pursuant to which
Xxxxx and the Partnership have granted Xxxxxx the option to purchase the Option
Shares (as hereinafter defined); and
WHEREAS, as partial consideration for, and in order to induce Xxxxx
to enter into, the Termination Agreement and the Option Agreement, FRI has
agreed to enter into this Agreement and to grant the Rights (as hereinafter
defined) contained herein to Xxxxx and the Partnership;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
SECTION 1. CERTAIN DEFINITIONS AND TERMS.
The following terms have the meanings indicated:
"Commission" means the Securities and Exchange Commission or any
successor thereof.
"Common Stock" means the common stock, par value $.01 per share, of
FRI.
"Enron/Merrill Agreement" means that certain Registration Rights
Agreement, dated December 7, 1994, as amended, by and among FRI, Xxxxxx & Xxxxx,
Inc., a Louisiana corporation, Enron Finance Corp. and Xxxxxxx Xxxxx Capital
Markets plc.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holder" means Xxxxx, the Partnership and any other Person holding
Registrable Shares; provided, that such Person acquired such Registrable Shares
in accordance with Section 7 of this Agreement.
"Option" means the option to purchase the Option Shares granted to
Xxxxxx by Xxxxx and the Partnership pursuant to the Option Agreement.
"Option Expiration Date" means the date that the Option expires in
accordance with the terms of the Option Agreement.
"Option Shares" means the 1,600,000 shares of Common Stock subject
to the Option Agreement, 1,000,000 of which are currently owned of record by the
Partnership and 600,000 of which are currently owned of record by Xxxxx.
"Permitted Transferee" means (i) Xxxxx, (ii) Xxxxx' spouse, (iii)
Xxxxx' children, (iv) Xxxxx' estate or the estates of Xxxxx' spouse or children,
and (v) any trust, partnership or similar entity controlled by or for the
benefit of the Persons named in clauses (i) through (iv) hereof, including the
Partnership, the 1996 Xxxxxxx Xxxxx Children Trust and the 1996 Xxxxxxxxx Xxxxx
Children Trust.
"Person" means any individual, firm, corporation, trust,
association, partnership, joint venture or other entity.
"Registrable Shares" means the Option Shares.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act and the declaration or ordering of effectiveness of such
registration statement.
"Rights" means all rights, remedies, powers, benefits, and
privileges granted to the Holders pursuant to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
SECTION 2. REGISTRATION RIGHTS.
(a) On any date after the Option Expiration Date, any Holder or
Holders shall have the right to request, in writing specifying that such request
is made pursuant to this Section
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2(a), that FRI file a registration statement under the Securities Act covering
not less than 250,000 Registrable Shares (unless fewer Registrable Shares are
held by the Holders, in which case, covering all such Registrable Shares). Such
request shall set forth the proposed plan of distribution for the Registrable
Shares to be registered. Within thirty days of such request, or, in the event
that Form S-3 under the Securities Act is available to FRI to effect such
registration, within twenty-one days of such request, FRI shall file a
registration statement to register under the Securities Act all Registrable
Shares subject to such request; provided, however, that FRI may defer its
obligations under this Section 2(a) for a period of no more than thirty days
(which thirty days shall be in addition to the 30-day or 21-day period, as
applicable, permitted above) if FRI's Board of Directors adopts a resolution or
obtains written advice from FRI outside securities counsel (which counsel shall
be a nationally recognized securities law firm or a law firm acceptable to the
Holders) that filing such a registration statement would require public
disclosure by FRI of any material non-public development; and provided further,
that once such information has been publicly disclosed by FRI, FRI shall
promptly proceed to fulfill its obligations under this Section 2(a).
Notwithstanding the foregoing, in the event FRI reasonably expects
to file, within 60 days of a request made pursuant to this Section 2(a), a
registration statement pertaining to securities for the account of FRI (except a
registration statement on Form S-8 or any successor form thereto) then such
request shall constitute a request made pursuant to Section 2(b) hereof to
include in such registration statement all Registrable Shares subject to such
request and FRI shall not be obligated to file a separate registration statement
for the Registrable Shares subject to such request; provided, that FRI is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective and that FRI's estimate of the date
of filing of such registration statement is made in good faith. If FRI has not
filed a registration statement pertaining to securities for the account of FRI
and the Registrable Shares during this 60 day period, then FRI shall promptly
proceed to fulfill its obligations under this Section 2(a).
FRI shall be obligated to effect only two registrations pursuant to
this Section 2(a) with respect to all Holders; provided, however, that a
registration requested pursuant to this Section 2(a) shall not be deemed to be a
"registration" for such purposes, (i) if a registration statement with respect
thereto has not been declared effective by the Commission, (ii) if after such
registration statement has become effective, such registration is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason not the fault of
a holder of Registrable Shares and the Registrable Shares covered thereby have
not been sold, or (iii) if the conditions to closing specified in the selling
agreement or underwriting agreement entered into in connection with such
registration are not satisfied or waived by the parties thereto other than a
holder of Registrable Shares.
Distribution by the Holder or Holders of the Registrable Shares
registered pursuant to this Section 2(a) may be made in any lawful manner,
including underwritten public offerings and non-underwritten "at the market"
distributions. If any such offering is to be an underwritten public offering,
the Holder or Holders of such Registrable Shares shall have the right to select
the managing
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underwriter or underwriters, subject to the approval of FRI, which approval
shall not be unreasonably withheld.
The Holders shall not make a request to FRI to effect any
registration pursuant to this Section 2(a) during (i) the 180-day period
beginning on the effective date of the first registration of Registrable Shares
made pursuant to this Section 2(a), (ii) the 90-day period beginning on the
effective date of any registration of Registrable Shares made pursuant to
Section 2(b) of this Agreement and (iii) the 14-day period prior to, and during
the 90-day period beginning on, the effective date of a registration statement
filed pursuant to Section 2(a) of the Enron/Merrill Agreement.
Whenever FRI shall effect a registration pursuant to this Section
2(a), securities that may be included among the securities covered by such
registration include (i) securities subject to registration rights granted by
the Company or (ii) such other securities as the Company may desire to include.
(b) If at any time after the Option Expiration Date FRI proposes to
register any of its Common Stock under the Securities Act (other than
registrations on Forms S-4 or S-8 or any successor forms thereto or
registrations of securities in connection with a Rule 145 transaction), whether
of its own accord or at the request of any holder or holders of its securities,
it shall each such time promptly give written notice to all Holders of its
intention to do so.
Upon the written request of a Holder or Holders delivered to FRI
within five business days after receipt of any such notice, FRI shall use its
best efforts (subject to the provisions of this Section 2(b)) to cause all
Registrable Shares, the Holders of which shall have so requested registration
thereof, to be registered under the Securities Act, all to the extent requisite
to permit the sale or other disposition by the Holder or Holders of such
Registrable Shares; provided, however, FRI may elect not to file a registration
statement pursuant to this Section 2(b) or may withdraw any registration
statement filed pursuant to this Section 2(b) at any time prior to the effective
date thereof.
If the managing underwriter for the respective offering advises that
marketing factors require the inclusion in such registration of some or all of
the Registrable Shares sought to be registered by the Holders to be limited or
that the number of securities to be registered at the insistence of FRI and any
other selling shareholders plus the number of Registrable Shares sought to be
registered by the Holders should be limited due to marketing factors, the number
of Registrable Shares sought to be registered by each Holder, FRI and such other
selling shareholders shall be reduced pro rata, based on the number of
securities sought to be registered by each such Holder, FRI or such other
selling shareholder, to the number recommended by the managing underwriter,
provided, that in the event such registration is initiated by FRI, the number of
shares offered by FRI shall not be reduced.
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(c) If and whenever FRI is required by the provisions of this
Section 2 to effect the registration of any Registrable Shares under the
Securities Act, FRI shall, as expeditiously as possible,
(1) cooperate with any underwriters for, and the Holders of,
such Registrable Shares, and shall enter into a usual and customary
underwriting agreement with respect thereto and take all such other
reasonable actions as are necessary or advisable to permit, expedite and
facilitate the disposition of such Registrable Shares in the manner
contemplated by the related registration statement, including without
limitation, the inclusion in such registration statement of any
information relating to FRI or its subsidiaries which such holders or
underwriters deem reasonably necessary to facilitate such disposition,
in each case to the same extent as if all the securities then being
offered were for the account of FRI, and FRI shall provide to any Holder
of such Registrable Shares, any underwriter participating in any
distribution thereof pursuant to a registration statement, and any
attorney, accountant or other agent retained by any Holder or
underwriter, reasonable access to appropriate FRI officers and employees
to answer questions and to supply information reasonably requested by
any such Holder, underwriter, attorney, accountant or agent in
connection with such registration statement; provided, however, that
each such party shall be required to maintain in confidence and not
disclose to any other person any information or records reasonably
designated by FRI in writing as being confidential, until such time as
(A) such information becomes a matter of public record (whether by
virtue of its inclusion in such registration statement or otherwise), or
(B) such person shall be required so to disclose such information
pursuant to the subpoena or order of any court or other governmental
agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such persons shall have given
FRI prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such registration statement
or the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such prospectus
in order that such registration statement, prospectus, amendment or
supplement, as the case may be, does not contain an untrue statement of
a material fact or omit to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(2) furnish or cause to be furnished to each Holder of the
Registrable Shares covered by such registration statement, on the date
that such Registrable Shares are to be delivered to the underwriters for
sale pursuant to such registration or, if such Registrable Shares are
not being sold through underwriters, on the date the registration
statement with respect to such Registrable Shares becomes effective (i)
an opinion, dated such date, of the outside counsel representing FRI for
the purposes of such registration, addressed to the underwriters, if
any, and to the Holders, stating that such registration statement has
become effective under the Securities Act and that (A) to the knowledge
of such counsel, no stop order suspending the effectiveness of such
registration statement has been instituted or is pending or contemplated
under the Securities Act; and (B) the
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registration statement, the related prospectus, and each amendment or
supplement thereto, including all documents incorporated by reference
therein, comply as to form in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder (except that such counsel need
express no opinion as to financial statements or other financial or
statistical or reserve data contained or incorporated by reference
therein); and such counsel shall state in customary form that no facts
have come to the attention of such counsel that caused such counsel to
believe (with customary qualifications) that either the registration
statement or the prospectus, or any amendment or supplement thereto,
including all documents incorporated by reference therein, in light of
the circumstances under which they were made, contains any untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no belief as to
financial statements or other financial or statistical or reserve data
contained or incorporated by reference therein or as to any information
provided by the Holders or any underwriter for inclusion therein); and
(ii) a letter, dated such date, from the independent certified public
accountants of FRI, addressed to the underwriters, if any, and to the
Holders, stating that they are independent certified public accountants
within the meaning of the Securities Act and that in the opinion of such
accountants, the financial statements and other financial data of FRI
included in the registration statement or the prospectus, or any
amendment or supplement thereto, including all documents incorporated by
reference therein, comply as to form in all material respects with the
applicable accounting requirements of the Securities Act. Such letter
from the independent certified public accountants shall additionally
cover such other customary financial matters (including information as
to the period ending not more than five business days prior to the date
of such letter) with respect to the registration in respect of which
such letter is being given as such underwriters, if any, or the Holders
may reasonably request;
(3) prepare and file with the Commission a registration
statement with respect to such Registrable Shares and use its best
efforts to cause such registration statement to become and remain
effective for a period of not more than 180 days (or in the event of a
firm underwritten offering such longer period as may be customary), and
prepare and file with the Commission 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 during such period and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all
securities covered by such registration statement; provided that no such
registration statement or amendment thereto shall be filed by FRI until
the Holders of the Registrable Shares included therein and their counsel
shall have had a reasonable opportunity to review the same, to exercise
their rights under clause (1) above with respect thereto and to approve
or disapprove any portion of such registration statement describing or
referring to such Holders; provided, further, that if, after a
registration statement becomes effective, the Company advises the
Holders that the Company considers it appropriate for the registration
statement to be amended, the Holders shall suspend any further sales of
their registered shares until the Company advises them that the
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registration statement has been amended. The 180-day time period
referred to herein during which the registration statement must be kept
current after its effective date shall be extended for an additional
number of business days equal to the number of business days during
which the rights to sell shares was suspended pursuant to the preceding
sentence;
(4) furnish to each Holder and to each underwriter, if any, such
numbers of copies of a summary prospectus or other prospectus, including
a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents, as such Holder may reasonably
request in order to facilitate the public sale or other disposition of
such Holder's Registrable Shares;
(5) use its best efforts to register or qualify the Registrable
Shares covered by such registration statement under the state securities
of blue sky laws of such United States jurisdictions as each Holder
shall request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the public sale or other disposition in such United States jurisdictions
of the Registrable Shares owned by such Holder, except that FRI shall
not for any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified
or to file therein any general consent to service;
(6) in the event of the issuance of any stop order suspending
the effectiveness of any registration statement or of any order
suspending or preventing the use of any prospectus or suspending the
qualification of such Registrable Shares for sales in any jurisdiction,
use its reasonable efforts promptly to obtain its withdrawal;
(7) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in connection with such
registration and related transactions, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, beginning with
the first fiscal quarter beginning after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(8) list such securities on any securities exchange or
consolidated reporting system on which the Common Stock of FRI is then
listed, if the listing of such securities is then permitted under the
rules of such exchange or consolidated reporting system; and
(9) furnish unlegended certificates representing ownership of
the Registrable Shares being sold in such denominations as shall be
requested by each Holder or the managing underwriter, provided such
request is made at least two business days prior to the closing of the
sale of such Registrable Shares.
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(d) In connection with any offering involving an underwriting of
shares being issued by FRI, FRI shall not be required to include any of the
Holders' Registrable Shares in such underwriting pursuant to Section 2(b) unless
the Holders accept the terms of the underwriting as agreed upon between FRI and
the underwriters; provided, however, that the only representations and
warranties any Holder shall be required to make in connection therewith shall be
with respect to such Holder's ownership of the Registrable Shares to be sold by
it and its ability to convey title thereto free and clear of all liens,
encumbrances or adverse claims and such other customary representations and
warranties reasonably requested by the underwriters; and provided further, that
the only indemnity any Holder shall be required to make in connection therewith
shall be to the effect of Sections 4(b) and 4(c) hereof.
(e) The Registrable Shares proposed to be registered under any
registration statement under Section 2(b) hereof shall be offered for sale at
the same public offering price as the shares of Common Stock offered for sale by
FRI or any other selling shareholder covered thereby.
SECTION 3. EXPENSES OF REGISTRATION.
All expenses incurred in connection with the registration of
Registrable Shares pursuant to this Agreement, including without limitation (i)
the Commission registration fee, (ii) the fee payable to the National
Association of Securities Dealers, Inc., (iii) all state registration and
qualification fees, (iv) all printing, engineering and accounting fees, (v) all
fees and disbursements of counsel for FRI and (vi) all fees and disbursements of
one law firm selected by the Holders to represent all the Holders, shall be
borne by FRI; provided, however, that FRI shall not be required to pay, and the
Holders shall pay any underwriter discounts, commissions and other underwriter
compensation, to the extent such fees, discounts, commissions and compensation,
relate to the Registrable Shares.
SECTION 4. INDEMNIFICATION.
(a) In the event of any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, FRI shall indemnify and hold harmless
the Holder of such Registrable Shares, such Holder's directors, officers and
partners, if any, and each other Person, if any, who controls such Holder within
the meaning of the Securities Act (a "Controlling Person"), against any losses,
claims, damages or liabilities, joint or several, to which such Holder or any
such director, officer, partner or Controlling Person may become subject under
the Securities Act or other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
Registrable Shares were registered under the Securities Act, or in any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or (ii) any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse such Holder or such director, officer,
partner or Controlling Person for any legal or any other expenses reasonably
incurred by such Holder, director, officer, partner or Controlling
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Person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that FRI shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon any alleged untrue statement or alleged
omission made in such registration statement, preliminary prospectus,
prospectus, or amendment or supplement in reliance upon and in conformity with
written information furnished to FRI through an instrument duly executed or
provided by such Holder or an underwriter specifically for use therein. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such Holder, director, officer, partner or Controlling
Person, and shall survive the transfer of such Registrable Shares by such
Holder.
(b) It shall be a condition to FRI's obligation to register the
Registrable Shares of any Holder that such Holder shall enter into an agreement
to indemnify and hold harmless FRI, its directors and officers and each other
Person, if any, who controls FRI against any losses, claims, damages or
liabilities, joint or several, to which FRI or any such director or officer or
any such Person may become subject under the Securities Act or any other statute
or at common law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any alleged
untrue statement or omission of any material fact contained, on the effective
date thereof, in any registration statement under which such Holder's
Registrable Shares were registered under the Securities Act, or in any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or (ii) any alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
alleged untrue statement or omission was contained in written information
furnished to FRI through an instrument duly executed or provided by such Holder
specifically for use therein, and to reimburse FRI or such director, officer or
other Person for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Indemnification similar to that specified in (i) and (ii) in
paragraphs 4(a) and (b) above shall be given by FRI and each Holder (with such
modifications as shall be appropriate) to any underwriter with respect to any
required registration or other qualification of any Registrable Shares
registered under this Agreement under any federal or state law or regulation of
governmental authority. The indemnity and expense reimbursements obligations of
FRI and the Holders under (i) and (ii) in paragraphs 4(a) and 4(b) above shall
be in addition to any liability FRI and the Holders may otherwise have.
(d) Each Person (an "Indemnitor") who under the preceding provisions
of this Section 4 agrees to indemnify another Person (an "Indemnitee") shall
have the rights, subject to the provisions hereto, to designate counsel (which
counsel shall be a nationally recognized securities law firm or a law firm
acceptable to the Holders) or to defend any case or proceeding against the
Indemnitee arising in respect of any claim of liability for which such
indemnification may be claimed, to the end that duplication of legal expense may
be minimized; provided that, if the Indemnitee notifies the Indemnitor that the
former has been advised by its counsel that any single counsel in such case or
proceeding would have a conflict of interest in representing both the
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Indemnitor and the Indemnitee, the Indemnitee may designate one counsel of its
own in such case or proceeding and, to the extent so provided above in this
Section 4, shall be entitled to be reimbursed for its legal expenses reasonably
incurred in connection with defending itself in such case or proceeding.
(e) The Indemnitee shall give notice to the Indemnitor promptly
after such Indemnitee has actual knowledge of any claim as to which indemnity
may be sought, provided that the failure of any Indemnitee to give notice as
provided herein shall not relieve the Indemnitor of its obligations hereunder
except to the extent that the Indemnitor's defense of such claim is prejudiced
thereby.
SECTION 5. CONTRIBUTION.
(a) In the event the indemnity provisions provided for in Section 4
of this Agreement are for any reason held to be unenforceable by the indemnified
parties, FRI, the Holders and the underwriters, if any, shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity provisions incurred by FRI, the Holders and the
underwriters in proportion to the relative fault of each such party in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages and expenses. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by one of the parties and such parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. Notwithstanding the foregoing, no Holder
shall be required to contribute, in the aggregate, any amount in excess of the
amount by which the total price at which the Registrable Shares sold by it
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(b) Notwithstanding the foregoing provisions of this Section 5, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
underwriter, and each director of FRI, each officer of FRI who signed such
registration statement and each person, if any, who controls FRI or any Holder
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as FRI or such Holder, as the case may be.
SECTION 6. SALES PURSUANT TO RULE 144.
Upon written request, FRI shall deliver to any Holder a written
statement as to whether it has complied with all rules and regulations of the
Commission applicable in connection with the use of Rule 144 (or any successor
thereto), including the timely filing of all reports required to be filed by FRI
with the Commission. Upon receipt of an opinion of counsel satisfactory to FRI,
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FRI shall cause any restrictive legends to be removed and any transfer
restrictions to be rescinded with respect to any sale of Registrable Shares
which is exempt from registration under the Securities Act pursuant to Rule 144.
SECTION 7. TRANSFER OF REGISTRATION RIGHTS.
The Rights of Holders under this Agreement may be assigned or
transferred upon written notice to the Company to any Permitted Transferee in
connection with the transfer of all or a portion of the Registrable Shares. In
the event that the Rights under this Agreement are assigned or transferred by a
Holder to a Permitted Transferee in connection with the transfer of a portion of
the Registrable Shares, any registration rights exercised by such Holder or any
such Permitted Transferee must be exercised collectively as one Holder and, for
purposes of this Agreement, including without limitation, with respect to
providing notices and payment of any expenses, such Holder and such Permitted
Transferee will be treated as one Holder. Any transferee hereunder must
acknowledge in writing its acceptance of all terms, conditions and obligations
of this Agreement.
SECTION 8. TERMINATION.
FRI shall not be obligated to take any action to effect any
registration, qualification or compliance pursuant to this Agreement, and this
Agreement shall terminate and be of no force and effect (except any obligations
of FRI under Section 6 of this Agreement), with respect to any Holder (and such
Holder only) who may sell all of such Holder's Registrable Shares in reliance
upon Rule 144(k) (or any successor rule) promulgated under the Securities Act.
SECTION 9. REMEDIES.
FRI recognizes that money damages may be inadequate to compensate
the Holders for a breach by FRI of its obligations under this Agreement, and FRI
agrees that in the event of such a breach any of the Holders may apply for an
injunction of specific performance or the granting of such other equitable
remedies as may be awarded by a court of competent jurisdiction in order to
afford the Holders the benefits of this Agreement and that FRI shall not object
to such application, entry of such injunction or granting of such other
equitable remedies on the grounds that money damages shall be sufficient to
compensate the Holders.
SECTION 10. MISCELLANEOUS.
(a) Notices.
(1) All communications under this Agreement shall be in writing
and shall be mailed by first class mail, postage prepaid, or sent by
facsimile,
(i) if to any party hereto at its address or facsimile
number for notices specified beneath its name on the signature page
hereof, or at such other
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address or facsimile number as it may have furnished in writing to
each other party hereto;
(ii) if to any other person or entity who is the registered
holder of any Registrable Shares to the address or facsimile number of
such holder as it appears in the stock ledger of FRI.
(2) Any notice shall be deemed to have been duly given and received
(i) at the time of delivery when delivered by hand, if personally
delivered, (ii) if sent by mail, two business days after being deposited in
the mail, postage prepaid and (iii) when sent by facsimile so long as a
duplicate of such notice is deposited in the mail, first class postage
prepaid, on the date such facsimile is sent.
(b) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the permitted successors and assigns of each of the
parties whether so expressed or not.
(c) Amendment and Waiver, etc. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
unanimous written consent of FRI and the Holders. No failure or delay on the
part of the Holders in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to the Holders at law or in equity or otherwise. No waiver of or
consent to any departure by FRI from any provision of this Agreement shall be
effective unless in writing and signed by the Holders.
(d) Duplicate Originals. Two or more duplicate originals of this
Agreement may be signed in counterpart by the parties, each of which shall be an
original but all of which together shall constitute one and the same instrument.
(e) 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.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the substantive law of Delaware without giving effect to the
principles of conflicts of law thereof.
(g) Entire Agreement. This Agreement constitutes and contains the
entire agreement of the parties and supersedes any and all prior negotiations,
correspondence, undertakings and agreements between the parties hereto
respecting the subject matter hereof.
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13
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
XXXXXX & XXXXX, INC.,
a Delaware corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chairman of the Board
By:/s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Chairman and CEO
-----------------------------
/s/ XXXXXXX X. XXXXX, XX
--------------------------------
Xxxxxxx X. Xxxxx, XX
XXXXX FAMILY LIMITED PARTNERSHIP,
a Texas limited partnership
c/o Xxxxxxx X. Xxxxx, XX
000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: ________________
By:/s/ XXXXXXX X. XXXXX, XX
--------------------------------
Xxxxxxx X. Xxxxx, XX
General Partner
By:/S/ XXXXXXXXX MAY XXXXX
--------------------------------
Xxxxxxxxx May Xxxxx
General Partner
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