1
Exhibit 10.1
RUSH ENTERPRISES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into
as of October 1, 1999, by and among Rush Enterprises, Inc., a Delaware
corporation ("Company") and Southwest Peterbilt, Inc., an Arizona corporation
("Southwest Peterbilt"), Southwest Truck Center, Inc., an Arizona corporation
("Southwest Truck Center") and New Mexico Peterbilt, Inc., a New Mexico
corporation ("New Mexico Peterbilt", and together with Southwest Peterbilt and
Southwest Truck Center, "Holders").
RECITALS
A. Pursuant to an Asset Purchase Agreement (the "Arizona Purchase
Agreement") dated September 22, 1999, between Rush Truck Centers of Arizona,
Inc., a Delaware corporation and a subsidiary of Company, and Southwest
Peterbilt, Southwest Truck Center and Xxxxxx Xxxxxxx, Xx. ("Shareholder"),
Southwest Peterbilt holds 273,779 shares of Common Stock (as defined below) and
Southwest Truck Center holds 28,444 shares of Common Stock.
B. Pursuant to an Asset Purchase Agreement (the "New Mexico Purchase
Agreement") dated September 22, 1999, between Rush Truck Centers of New Mexico,
Inc., a Delaware corporation and a subsidiary of Company, and New Mexico
Peterbilt and Shareholder, New Mexico Peterbilt holds 53,333 shares of Common
Stock.
C. It is a condition precedent to Southwest Peterbilt and Southwest
Truck Center's obligations under the Arizona Purchase Agreement and to New
Mexico Peterbilt's obligations under the New Mexico Purchase Agreement that
Company execute and deliver this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
(a) Commission. "Commission" shall mean the Securities and
Exchange Commission of the United States or any other United States
federal agency at the time administering the Securities Act.
(b) Common Stock. "Common Stock" shall mean the Common Stock
of Company, $.01 par value per share.
2
(c) Exchange Act. "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder, or any similar United States federal statute.
(d) Form S-3. "Form S-3" shall mean such form under the
Securities Act as in effect on the date hereof or any registration
form under the Securities Act subsequently adopted by the Commission
that similarly permits inclusion or incorporation of substantial
information by reference to other documents filed by Company with the
Commission.
(e) Other Holders. "Other Holders" shall mean holders of
Company securities, other than Holders, proposing to distribute their
securities pursuant to a registration under this Agreement.
(f) Register, Registered and Registration. "Register",
"registered" and "registration" shall mean a registration effected by
preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(g) Registrable Securities. "Registrable Securities" shall
mean the Common Stock issued to Southwest Peterbilt and Southwest
Truck Center pursuant to Sections 3.1(a)(ii) and 3.1(b)(ii) of the
Arizona Purchase Agreement and the Common Stock issued to New Mexico
Peterbilt pursuant to Section 3.1(b) of the New Mexico Purchase
Agreement, including Common Stock issued in connection with any
subdivision or combination of Common Stock, stock dividend,
consolidation or merger relating thereto; provided, however, that any
shares described above that have been transferred in a transaction in
which the registration rights hereunder have not been transferred
shall cease to be Registrable Securities upon such transfer.
(h) Registration Expenses. "Registration Expenses" shall mean
all expenses, except as otherwise stated below, incurred by Company in
complying with Sections 2 and 3 hereof, including, without limitation,
all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for Company, blue sky
fees and expenses, fees and disbursements of all independent certified
public accountants of Company (including, without limitation, the
expense of any special audit and, in connection with any underwritten
offering, "cold comfort" letters required by or incident to such
performance), fees and expenses incurred in connection with the
listing of the securities to be registered on each securities exchange
on which securities of the same class are then listed or the
qualification for trading of the securities to be registered in each
interdealer quotation system in which securities of the same class are
then traded, and fees and expenses associated with any NASD filing
required to be made in connection with such registration (but
excluding the compensation of regular employees of Company which shall
be paid in any event by Company).
-2-
3
(i) Securities Act. "Securities Act" shall mean the
Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder, or any similar United States federal
statute.
(j) Selling Expenses. "Selling Expenses" shall mean all
underwriting discounts, selling commissions and stock transfer taxes
applicable to the securities registered by Holders and all attorneys'
fees and expenses of counsel for Holders.
2. COMPANY REGISTRATION
(a) Notice of Registration. If at any time or from time to
time after the date hereof Company shall determine to register any of
its securities, either for its own account or the account of Other
Holders, other than (i) a registration relating solely to employee
benefit plans or (ii) a registration relating solely to a Commission
Rule 145 transaction, Company will:
(i) give prompt (and in any event within twenty (20)
days before the anticipated filing date of the related
registration statement) written notice thereof to each Holder
indicating the proposed offering price and describing the
plan of distribution; and
(ii) include in such registration and, at the
request of any Holder, in any underwriting involved therein,
all the Registrable Securities specified in a written request
by any Holder to Company, made within twenty (20) days after
receipt of such written notice from Company.
(b) Election Revocable. If, prior to the execution by a
Holder of the underwriting agreement contemplated by Subsection 2(c),
such Holder disapproves of the terms of any such underwriting, such
Holder may elect to withdraw therefrom by written notice to Company
and the managing underwriter. Any securities excluded or withdrawn
from such underwriting also shall be withdrawn from such registration,
and shall not be transferred in a public distribution prior to ninety
(90) days after the effective date of the registration statement
relating thereto, or such other shorter period of time as the
underwriters may require.
(c) Underwriting. If the registration of which Company gives
notice is for a registered public offering involving an underwriting,
Company shall so advise Holders. In such event, the right of any
Holder to registration pursuant to this Section 2 shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of Registrable Securities in the underwriting to the extent
provided in this Section 2.
All Holders proposing to distribute their securities through
such underwriting shall, together with Company, enter into an
underwriting agreement in customary form with the
-3-
4
managing underwriter selected for such underwriting by Company.
Company may exclude from such underwriting the Registrable Securities
of any Holder who does not accept the terms agreed upon between
Company and the underwriters. Company shall use its reasonable best
efforts to cause the managing underwriter of such proposed
underwritten offering to permit the Registrable Securities proposed to
be included in such registration to be included in the registration
statement for such offering on the same terms and conditions as any
similar securities of Company included therein. Notwithstanding any
other provision of this Section 2, if the managing underwriter
determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the
Registrable Securities to be included in such registration. In such
event, Company shall so advise Holders, and the number of shares that
may be included in the registration and underwriting by Holders and
Other Holders shall be allocated among all Holders and all Other
Holders in proportion, as nearly as practicable, to the respective
amounts of Common Stock held by such Holders and Other Holders at the
time of filing of the registration statement. To facilitate the
allocation of shares in accordance with the above provisions, Company
may round the number of shares allocated to any Holder to the nearest
one hundred (100) shares.
(d) Right to Terminate Registration. Company shall have the
right to terminate or withdraw any registration initiated by it under
this Section 2 prior to the effectiveness of such registration whether
or not any Holder has elected to include Registrable Securities in
such registration.
3. REGISTRATION ON FORM S-3
(a) Request for Registration. If any Holder holding or
Holders in the aggregate holding 100,000 or more Registrable
Securities requests that Company file a registration statement on Form
S-3 (or any successor form to Form S-3) for a public offering of
shares of 100,000 or more Registrable Securities, and Company is a
registrant entitled to use Form S-3 to register the Registrable
Securities for such an offering, Company shall use its best efforts to
cause such Registrable Securities requested by Holders to be included
in such registration to be registered for the offering on such form
and to cause such Registrable Securities to be qualified in such
jurisdictions as Holders may reasonably request.
(b) Limitations. Notwithstanding the foregoing, Company shall
not be obligated to take any action pursuant to this Section 3:
(i) in any particular jurisdiction in which Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance unless Company is already subject to service in
such jurisdiction and except as may be required by the
Securities Act;
(ii) If Company, within ten (10) days of the receipt
of the request of Holders requesting registration under this
Section 3, gives notice of its bona fide
-4-
5
intention to effect the filing of a registration statement
with the Commission within ninety (90) days of receipt of such
request (other than with respect to a registration statement
relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate
for the registration of Registrable Securities);
(iii) during the period starting with the date
thirty (30) days prior to Company's good faith estimated date
of filing of, and ending on the date six (6) months
immediately following, the effective date of any registration
statement pertaining to securities of Company (other than a
registration of securities in a Rule 145 transaction or with
respect to an employee benefit plan), provided that Company
is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective;
(iv) if Company shall furnish to such Holder a
certificate signed by the Chief Executive Officer of Company
stating that in the good faith judgment of Company's Board of
Directors the filing of a registration statement would
require the disclosure of material information that Company
has a bona fide business purpose for preserving as
confidential and that is not then otherwise required to be
disclosed or it would be seriously detrimental to Company and
its shareholders for such Form S-3 to be effected at such
time, then Company's obligation to use its best efforts to
file a registration statement shall be deferred for a period
not to exceed one hundred twenty (120) days from the receipt
of the request to file such registration by such Holder,
provided, however, that Company shall not utilize this right
more than once in any twelve (12) month period; or
(v) after Company has effected one (1) registration
pursuant to this Section 3, and such registration has been
declared or ordered effective and has been available to
Holders for resale for a period of at least six consecutive
months.
4. COMPANY'S PURCHASE OBLIGATION
The next time Company has a registration statement ordered or declared
effective (which shall include the Form S-1 Company anticipates filing the
fourth quarter of 1999 for a public offering of approximately 2,000,000 shares
of Common Stock, whether or not such Form S-1 is ordered or declared effective
before or after the date hereof) (an "Offering"), Company shall have the
obligation to acquire all Registrable Securities held by Holders at such time
and each Holder shall be obligated to sell such Registrable Securities to
Company. Company shall give each Holder written notice of the effectiveness of
the registration statement on or before the later of three business days after
Company receives the proceeds for the Offering or three business days from the
date hereof. The closing of such purchase shall take place at a time mutually
agreed to by the parties thereto, which shall be no later than five business
days after Company gives the notice described above. The purchase price payable
to each Holder for the Registrable Securities held by such Holder shall be
equal to (i) the
-5-
6
number of shares of Common Stock purchased from such Holder pursuant to this
Section 4 multiplied by the greater of (a) $16.875 and (b) the price per share
the Common Stock is sold to the public in the Offering less Holder's pro rata
share of all commissions charged in connection with the Offering. At the
closing, Company shall pay to each Holder the purchase price due such Holder in
cash by wire transfer against delivery of certificate(s) representing the
Registrable Securities Company is purchasing from such Holder, duly endorsed in
blank or accompanied by a duly executed stock power in blank, to effect the
transfer of the Registrable Securities to Company. The Registrable Securities
being purchased by Company shall be conveyed and delivered to Company free and
clear of all liens, security interests, encumbrances, options, calls or other
restrictions. Any assignment of Registrable Securities by a Holder shall be
made expressly subject to the provisions of this Section 4. Company shall have
the absolute right to terminate or withdraw any registration statement prior to
the effectiveness of such registration statement without any liability.
5. OBLIGATIONS OF COMPANY
Whenever required under this Agreement to effect the registration of
any Registrable Securities, Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities, use its best
efforts to cause such registration statement to become effective, and,
upon the request of Holders, keep such registration statement
effective for up to ninety (90) days.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement.
(c) Furnish to Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they
may reasonably request in order to facilitate the disposition of all
securities covered by such registration statement.
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as shall
be reasonably requested by Holders, provided that Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement.
-6-
7
(f) Notify each Holder of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto covered by such registration statement is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(g) At the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, furnish on the date
that such Registrable Securities are delivered to the underwriters for
sale in connection with a registration pursuant to this Agreement (i)
an opinion, dated such date, of the counsel representing Company for
the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering,
addressed to the underwriters and (ii) a letter dated such date, from
the independent certified public accountants of Company, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed to the underwriters.
(h) List the Registrable Securities being registered on any
national securities exchange on which a class of Company's equity
securities are listed or qualify the Registrable Securities being
registered for inclusion on Nasdaq if Company does not have a class of
equity securities listed on a national securities exchange.
6. OBLIGATIONS OF HOLDERS
It shall be a condition precedent to the obligations of Company to
take any action pursuant to this Agreement that Holders who have requested the
registration of Registrable Securities:
(a) Furnish to Company such information regarding themselves,
the Registrable Securities held by them and the intended method of
disposition of such securities as shall be reasonably requested by
Company or reasonably required to effect the registration of the
Registrable Securities;
(b) Cooperate in good faith with Company and the
underwriters, if any, in connection with such registration, including
executing any documents in connection with such registration as
Company or the underwriters may reasonably request and placing the
Registrable Securities in escrow or custody to facilitate the sale and
distribution thereof; and
(c) Make no further sales or other dispositions, or offers
therefor, of the Registrable Securities under such registration
statement if, during the effectiveness of such registration statement,
an intervening event should occur which, in the opinion of counsel to
Company, makes the prospectus included in such registration statement
no longer comply with the Securities Act, so long as written notice
containing the facts and legal conclusions
-7-
8
relied upon by Company in this regard has been received by Holders
from Company, until such time as Holders have received from Company
copies of a new, amended or supplemented prospectus complying with the
Securities Act, which prospectus shall be delivered to Holders by
Company as soon as practicable after such notice.
7. CONFIDENTIALITY OF COMPANY INFORMATION
Each Holder agrees that it will keep confidential and will not
disclose or divulge or otherwise misuse any confidential, proprietary or secret
information which such Holder may obtain from Company unless such information
is or becomes known to such Holder from a source other than Company without
violation of any rights of Company, or is or becomes publicly known, or unless
Company gives its written consent to such Holder's release of such information,
except that no such written consent shall be required (and such Holder shall be
free to release such information to such recipient) if such information is to
be provided to such Holder's counsel or accountant (and the provision of such
information is directly necessary in order for such recipient to provide
services to such Holder), or to an officer, director, member or partner of such
Holder, provided that such Holder shall inform the recipient of the
confidential nature of such information, and such recipient agrees in writing
in advance of disclosure to treat the information as confidential.
8. EXPENSES OF REGISTRATION
(a) Registration Expenses. Company shall bear all
Registration Expenses incurred in connection with all registrations
pursuant to Sections 2 and 3 hereof.
(b) Selling Expenses. All Selling Expenses relating to
securities registered on behalf of Holders shall be borne by Holders
pro rata on the basis of the number of Registrable Securities so
registered.
9. DELAY OF REGISTRATION
No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any registration of Company as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. INDEMNIFICATION
(a) By Company. Company will indemnify each Holder, each of
its officers and directors, partners, employees and agents, and each
person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification or
compliance has ben effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in
settlement of any litigation, commenced or
-8-
9
threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained (or
incorporated by reference) in any registration statement, prospectus,
offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by Company of the
Securities Act or any rule or regulation promulgated under the
Securities Act applicable to Company in connection with any such
registration, qualification or compliance, and Company will reimburse
each such Holder, each of its officers, directors, partners, employees
and agents, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that Company will not be liable to any
such Holder, controlling person or underwriter in any such case to the
extent that any such claim, loss, damage, liability or expense arises
out of or is based on any untrue statement or omission, or alleged
untrue statement or omission, made or incorporated by reference in
such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information
furnished to Company by an instrument duly executed by any Holder,
controlling person or underwriter and stated to be specifically for
use therein. If Holders are represented by counsel other than counsel
for Company, Company will not be obligated under this Section 10(a) to
reimburse legal fees and expenses of more than one separate counsel
for Holders.
(b) By Holders. Each Holder will indemnify Company, each of
its directors, officers, each underwriter, if any, of Company's
securities covered by such a registration statement, each person who
controls Company or such underwriter within the meaning of Section 15
of the Securities Act, and each other Holder, each of its officers,
directors, partners, employees and agents and each person controlling
such Holders within the meaning of Section 15 of the Securities Act,
against all expenses, claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained
(or incorporated by reference) in any such registration statement,
prospectus, offering circular or other document, 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, and will reimburse Company, such Holders, such directors,
officers, partners, employees and agents, underwriters or control
persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made (or incorporated by
reference) in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
written information furnished to Company by an instrument duly
executed by such Holder and stated to be specifically for use therein.
-9-
10
(c) Procedure for Indemnification. Each party entitled to
indemnification under paragraph (a) or (b) of this Section 10 (the
"Indemnified Party") shall, promptly after receipt of notice of any
claim or the commencement of any action against such Indemnified Party
in respect of which indemnity may be sought, notify the party required
to provide indemnification (the "Indemnifying Party") in writing of
the claim or the commencement thereof; provided that the failure of
the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which it may have to
an Indemnified Party pursuant to the provisions of this Section 10,
unless the Indemnifying Party was materially prejudiced by such
failure, and in no event shall such failure relieve the Indemnifying
Party from any other liability which it may have to such Indemnified
Party. If any such claim or action shall be brought against an
Indemnified Party, it shall notify the Indemnifying Party thereof and
provide the Indemnifying Party with the opportunity to participate in
the defense of such claim or action with counsel of the Indemnifying
Party's choice and at the Indemnifying Party's cost and expense and
shall not, without the consent of the Indemnifying Party, which
consent shall not be unreasonably withheld, settle any claim or
action, so long as the Indemnifying Party shall have unconditionally
acknowledged its obligation to indemnify hereunder with respect to
such claim or action. To the extent reasonably requested by the
Indemnified Party, the Indemnifying Party shall reasonably cooperate
with the Indemnified Party and its representatives and counsel in any
dispute or defense related to any claim or action. The Indemnifying
Party shall promptly pay to the Indemnified Party in cash the amount
to which such Indemnified Party may become entitled by reason of the
provisions of this Section 10.
(d) Contribution. If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an Indemnified Party
in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to herein, then each Indemnifying Party
shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of
such loss, claim, damage or liability, or action in respect thereof,
in such proportion as shall be appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Indemnifying Party on the
one hand or the Indemnified Party on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not
by reference to any Indemnified Party's stock ownership in Company.
The amount paid or payable by an Indemnified Party as a result of the
loss, claim, damage or liability, or action in respect thereof,
referred to above in this paragraph shall be deemed to include, for
purposes of this paragraph, any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or
defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall
-10-
11
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Non-Securities Act Claims. Indemnification or, if
appropriate, contribution, similar to that specified in the preceding
provisions of this Section 10 (with appropriate modifications) shall
be given by Company and each Holder with respect to any required
registration or other qualification of Registrable Securities pursuant
to this Agreement under any federal or state law or regulation or
governmental authority other than the Securities Act.
(f) Payment. The Indemnifying Party shall promptly pay to the
Indemnified Party in cash the amount of such indemnity or, if
appropriate, contribution to which the Indemnified Party shall become
entitled by reason of the provisions of this Section 10.
11. RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Securities to the public without registration, during such time as
a public market exists for the Common Stock, Company agrees to use its best
efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act,
at all times while Company is subject to the reporting requirements of
the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports
and other documents required of Company under the Securities Act and
the Exchange Act (at any time while it is subject to such reporting
requirements); and
(c) Furnish to any Holder forthwith upon request a written
statement by Company as to its compliance with the reporting
requirements of Rule 144, and of the Securities Act and the Exchange
Act (at any time while it is subject to such reporting requirements),
a copy of the most recent annual or quarterly report of Company, and
such other reports and documents of Company and other information in
the possession of or reasonably obtainable by Company as such Holder
may reasonably request in availing itself of any rule or regulation of
the Commission allowing such Holder to sell any such securities
without registration.
12. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to register Registrable Securities pursuant to this
Agreement may be assigned by a Holder to a transferee or assignee of such
securities who shall, upon such transfer or assignment, be deemed a "Holder"
under this Agreement; provided such transfer is effected in accordance with
applicable securities laws and all restrictions on transfer applicable to such
Registrable Securities and Company is, within a reasonable period of time after
such transfer, furnished with written notice of
-11-
12
the name and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; provided,
further, that such assignment shall be effective only if immediately following
such transfer, the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and that such transferee or
assignee is either (a) a shareholder of any Holder, (b) a member of the
immediate family of such a shareholder or (c) a trust for the benefit of such a
shareholder or such a shareholder's immediate family.
13. MISCELLANEOUS
(a) All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, given
by prepaid telex or telegram or by facsimile or other similar
instantaneous electronic transmission device or mailed first class,
postage prepaid, certified United States mail, return receipt
requested, at the address indicated for such party on the signature
pages hereof; provided that any party may change its address for
notice by giving to the other party written notice of such change.
Unless otherwise provided herein, any notice given under this Section
13(a) shall be effective when received at the address for notice for
the party to which the notice is given.
(b) Any term of this Agreement may be amended and the
observance of any term may be waived (either generally or in a
particular instance and either retroactively or prospectively) only
with the written consent of Company and the holders of a majority of
the Registrable Securities.
(c) If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision shall be
excluded from this Agreement, and the balance of this Agreement shall
be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.
(d) This Agreement shall for all purposes be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to conflict of law principles. The parties hereto agree
to submit to the jurisdiction of the federal and state courts of the
State of Arizona with respect to the breach or interpretation of this
Agreement or the enforcement of any and all rights, duties,
liabilities, obligations, powers and other relations among the parties
arising under this Agreement. The parties agree that non-exclusive
venue of any action hereunder shall be proper in Phoenix, Maricopa
County, Arizona.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
-12-
13
(f) This Agreement constitutes the full and entire
understanding and agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements with respect
to the subject matter hereof.
(g) Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
(h) Each party acknowledges that it and its counsel have
received, reviewed and been involved in the drafting of this Agreement
and that normal rules of construction, to the effect that ambiguities
are to be resolved against the drafting party, shall not apply.
[signatures on next page]
-13-
14
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
RUSH ENTERPRISES, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Addresses:
If mailed:
P. O. Xxx 00000
Xxx Xxxxxxx, Xxxxx 00000
If personally delivered
or delivered by overnight courier:
0000 XX 00 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
SOUTHWEST PETERBILT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
SOUTHWEST TRUCK CENTER, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
15
NEW MEXICO PETERBILT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
