REGISTRATION RIGHTS AGREEMENT
Exhibit 10.13
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of ,
2009 by and among Xxxx Food Company, Inc., a Delaware corporation (the “Company”), the
Xxxxx X. Xxxxxxx Living Trust, dated May 28, 1986, as amended (the “Trust”), and Castle &
Xxxxx Holdings, Inc. (collectively with the Trust, the “Original Holders”).
RECITALS
A. The Original Holders have requested that they be granted certain registration rights with
respect to the shares of the Company’s Common Stock (as defined below) held by the Original Holders
as more fully set forth herein.
B. The Company has agreed to grant the Original Holders such registration rights as more fully
set forth herein.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, capitalized terms not
otherwise defined herein shall have the meanings ascribed to them below:
“Affiliate” means, with respect to any specified Person, any other Person who or
which, directly or indirectly, controls, is controlled by, or is under common control with such
specified Person.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which
banks are required or authorized by law to be closed in The City of New York.
“Common Stock” means the common stock, par value $.001 per share, of the Company, and
any equity securities issued or issuable in exchange for or with respect to the Common Stock by way
of a stock dividend, stock split or combination of shares or in connection with a reclassification,
recapitalization, merger, consolidation or other reorganization or otherwise.
“Common Stock Equivalent” means all options, warrants and other securities convertible
into, or exchangeable or exercisable for (at any time or upon the occurrence of any
event or contingency and without regard to any vesting or other conditions to which such
securities may be subject), Common Stock.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Holder” or “Holders” means (i) any Original Holder, (ii) any Affiliate of
such Original Holder who shall acquire and hold Registrable Securities in accordance with the terms
of this Agreement and (iii) solely with respect to a Demand Registration, any transferee of such
Registrable Securities that is granted the right to a Demand Registration hereunder.
“Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined
in Rule 433 under the Securities Act, relating to an offer of Registrable Securities.
“Majority Participating Holders” means Participating Holders holding more than 50% of
the Registrable Securities proposed to be included in any offering of Registrable Securities by
such Participating Holders pursuant to Section 2.1 or Section 2.2.
“Person” means any individual, corporation, partnership, limited liability company,
limited liability partnership, syndicate, person, trust, association, organization or other entity
or any governmental or regulatory body or other agency or authority or political subdivision
thereof, including any successor, by merger or otherwise, of any of the foregoing.
“Registrable Securities” means (i) shares of Common Stock held by the Original Holders
as of the date hereof, (ii) shares of Common Stock issued or issuable, directly or indirectly, in
exchange for or with respect to the Common Stock referenced in clause (i) above and (iii) any other
shares of Common Stock owned or hereafter acquired by the Original Holders. Any particular
Registrable Securities shall cease to be Registrable Securities when such Registrable Securities
have been transferred by an Original Holder to any transferee that is not an Affiliate of such
Original Holder; provided, however, that, in connection with a transfer of Registrable Securities
by an Original Holder in a private transaction other than where (A) a registration statement with
respect to the sale of such securities shall have been declared effective under the Securities Act
and such securities shall have been disposed of in accordance with such registration statement and
(B) such securities shall have been sold to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, such Original Holder or its Affiliate shall have the right to
grant to the transferee the right to one (1) or more Demand Registration(s) pursuant to the terms
and conditions of this Agreement; provided further, however, that (a) in no event shall the
Original Holders grant more than three (3) such Demand Registrations in the aggregate and (b) such
transferee agrees in a written instrument delivered to the Company to be bound by and subject to
the terms and conditions of this Agreement.
“Registration Expenses” means all fees and expenses incurred in connection with the
Company’s performance of or compliance with the provisions of Article II, including, without
limitation: (i) all registration, listing, qualification and filing fees (including FINRA filing
fees); (ii) fees and expenses of compliance with state securities or “blue sky” laws (including
counsel fees in connection with the preparation of a blue sky and legal investment
survey and FINRA filings); (iii) printing and copying expenses; (iv) messenger and delivery
expenses; (v) expenses incurred in connection with any road show; (vi) fees and disbursements of
counsel for the Company; (vii) with respect to each registration, the fees and disbursements of one
counsel for the selling Holder(s) selected by the Majority Participating Holders; (viii) fees and
disbursements of independent public accountants, including the expenses of any audit or “cold
comfort” letter, and fees and expenses of other persons, including special experts, retained by the
Company; (ix) underwriter fees, excluding discounts and commissions, and any other expenses which
are customarily borne by the issuer or seller of securities in a public equity offering; and
(x) all internal expenses of the Company (including all salaries and expenses of officers and
employees performing legal or accounting duties).
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
ARTICLE II
REGISTRATION RIGHTS
REGISTRATION RIGHTS
Section 2.1 Demand Registrations.
(a) (i) Subject to Section 2.1(c), at any time or from time to time after the six-month
anniversary of the first date on which the Company shall have effected the registration under the
Securities Act of any shares of Common Stock on or after the date hereof, one or more Holders shall
have the right to require the Company to file a registration statement under the Securities Act
covering Registrable Securities with an aggregate value of $10,000,000 or greater, by delivering a
written request therefor to the Company specifying the number of Registrable Securities to be
included in such registration by such Holders and the intended method of distribution thereof. All
such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to as “Demand
Registration Requests,” the registrations so requested are referred to as “Demand
Registrations” and the Holders making such demand for registration are referred to as the
“Initiating Holders.” As promptly as practicable, but no later than ten days after receipt
of a Demand Registration Request, the Company shall give written notice (a “Demand Exercise
Notice”) of such Demand Registration Request to all Holders of record of Registrable
Securities.
(ii) The Company, subject to Sections 2.3 and 2.7, shall include in a Demand Registration
(A) the Registrable Securities of the Initiating Holders and (B) the Registrable Securities of any
other Holder of Registrable Securities that shall have made a written request to the Company within
the time limits specified below for inclusion in such registration (together with the Initiating
Holders, the “Participating Holders”). Any such request from the other Holders must be
delivered to the Company within 15 days after the receipt of the Demand Exercise Notice and must
specify the maximum number of Registrable Securities intended to be disposed of by such other
Holders.
(iii) The Company, as expeditiously as possible but subject to Section 2.1(c), shall use its
commercially reasonable efforts to effect such registration under the
Securities Act of the Registrable Securities that the Company has been so requested to
register for distribution in accordance with such intended method of distribution.
(b) Registrations under this Section 2.1 shall be on such appropriate registration form of the
SEC for the disposition of such Registrable Securities in accordance with the intended method of
disposition thereof, which form shall be selected by the Company and shall be reasonably acceptable
to the Majority Participating Holders.
(c) The Demand Registration rights granted in Section 2.1(a) to the Holders are subject to the
following limitations:
(i) the Company shall not be required to cause a registration pursuant to Section 2.1(a) to be
filed within 90 days or to be declared effective within a period of 180 days after the effective
date of any other registration statement of the Company filed pursuant to the Securities Act;
(ii) if in any registration of Registrable Securities would require disclosure of information
not otherwise then required by law to be publicly disclosed and, in the good faith judgment of the
board of directors of the Company, such disclosure is reasonably likely to adversely affect any
material financing, acquisition, corporate reorganization or merger or other material transaction
or event involving the Company or otherwise have a material adverse effect on the Company (a
“Valid Business Reason”), the Company may postpone or withdraw a filing of a registration
statement relating to a Demand Registration Request until such Valid Business Reason no longer
exists, but in no event shall the Company avail itself of such right for more than 90 days, in the
aggregate, in any period of 365 consecutive days (such period of postponement or withdrawal under
this clause (ii), the “Postponement Period”); and the Company shall give notice of its
determination to postpone or withdraw a registration statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after
the occurrence thereof; and
(iii) the Company shall not be obligated to effect more than three Demand Registrations under
Section 2.1(a) for the benefit of transferees of the Original Holders granted demand registration
rights by the Original Holders pursuant to this Agreement..
If the Company shall give any notice of postponement or withdrawal of any registration statement
pursuant to clause (ii) above, the Company shall not register any equity security of the Company
during the period of postponement or withdrawal. Each Holder of Registrable Securities agrees
that, upon receipt of any notice from the Company that the Company has determined to withdraw any
registration statement pursuant to clause (ii) above, such Holder will discontinue its disposition
of Registrable Securities pursuant to such registration statement. If the Company shall have
withdrawn or prematurely terminated a registration statement filed under Section 2.1(a)(i), the
Company shall not be considered to have effected an effective registration for the purposes of this
Agreement until the Company shall have filed a new registration statement covering the Registrable
Securities covered by the withdrawn registration statement and such registration statement shall
have been declared effective and shall not have been withdrawn. If the Company shall give any
notice of withdrawal or postponement of a registration statement, at such time as the Valid
Business Reason that caused such withdrawal or
postponement no longer exists (but in no event more than 90 days after the date of the postponement
or withdrawal), the Company shall use its commercially reasonable efforts to effect the
registration under the Securities Act of the Registrable Securities covered by the withdrawn or
postponed registration statement in accordance with this Section 2.1.
(d) The Company, subject to Sections 2.3 and 2.7, may elect to include in any registration
statement and offering made pursuant to Section 2.1(a)(i), (i) authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company as treasury shares and (ii) any other
shares of Common Stock that are requested to be included in such registration pursuant to the
exercise of piggyback rights granted by the Company that are not inconsistent with the rights
granted in, or otherwise conflict with the terms of, this Agreement (“Additional Piggyback
Rights”); provided, however, that such inclusion shall be permitted only to the
extent that it is pursuant to and subject to the terms of the underwriting agreement or
arrangements, if any, entered into by the Participating Holders.
(e) A Holder may withdraw its Registrable Securities from a Demand Registration at any time.
If all such Holders do so, the Company shall cease all efforts to secure registration and such
registration nonetheless shall be deemed a Demand Registration for purposes of this Section 2.1
unless (i) the withdrawal is made following withdrawal or postponement of such registration by the
Company pursuant to a Valid Business Reason as contemplated by Section 2.1(c), (ii) the withdrawal
is based on the reasonable determination of the Holders who requested such registration that there
has been, since the date of the Demand Registration Request, a material adverse change in the
business or prospects of the Company or (iii) the Holders who requested such registration shall
have paid or reimbursed the Company for all of the reasonable out-of-pocket fees and expenses
incurred by the Company in connection with the withdrawn registration.
(f) A Demand Registration shall not be deemed to have been effected and shall not count as
such (i) unless a registration statement with respect thereto has become effective and has remained
effective for a period of at least 180 days or such shorter period during which all Registrable
Securities covered by such Registration Statement have been sold or withdrawn, or, if such
Registration Statement relates to an underwritten offering, such longer period as, in the opinion
of counsel for the underwriter(s), is required by law for delivery of a prospectus in connection
with the sale of Registrable Securities by an underwriter or dealer, (ii) if, after the
registration statement with respect thereto has become effective, it becomes subject to any stop
order, injunction or other order or requirement of the SEC or other governmental agency or court
for any reason, (iii) if it is withdrawn by the Company pursuant to a Valid Business Reason as
contemplated by Section 2.1(c) or (iv) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such Demand Registration are
not satisfied, other than solely by reason of some act or omission of the Participating Holders.
(g) In connection with any Demand Registration, the Company may designate the lead managing
underwriter in connection with such registration and each other managing underwriter for such
registration, provided, that, in each case, each such underwriter is reasonably
satisfactory to the Majority Participating Holders.
Section 2.2 Piggyback Registrations.
(a) If, at any time, the Company proposes or is required to register any of its equity
securities under the Securities Act (other than pursuant to (i) registrations on such form or
similar form(s) solely for registration of securities in connection with an employee benefit plan
or dividend reinvestment plan or (ii) a Demand Registration under Section 2.1) on a registration
statement on Form S-1 or Form S-3 or an equivalent general registration form then in effect,
whether or not for its own account, the Company shall give prompt written notice of its intention
to do so to each Holder of record of Registrable Securities (which shall in no event include a
Holder pursuant clause (iii) of the definition thereof). Upon the written request of any such
Holder, made within 15 days following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be disposed of by such Holder and
the intended method of distribution thereof), the Company, subject to Sections 2.2(b), 2.3 and 2.7,
shall use commercially reasonable efforts to cause all such Registrable Securities to be included
in the registration statement with the securities that the Company at the time proposes to register
to permit the sale or other disposition by the Holders in accordance with the intended method of
distribution thereof of the Registrable Securities to be so registered. No registration of
Registrable Securities effected under this Section 2.2(a) shall relieve the Company of its
obligations to effect Demand Registrations under Section 2.1.
(b) If, at any time after giving written notice of its intention to register any equity
securities and prior to the effective date of the registration statement filed in connection with
such registration, the Company shall determine for any reason not to register or to delay
registration of such equity securities, the Company will give written notice of such determination
to each Holder of record of Registrable Securities and (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 abandoned registration, without prejudice, however, to the rights of Holders under
Section 2.1 and (ii) in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such Registrable Securities for the
same period as the delay in registering such other equity securities.
(c) Any Holder shall have the right to withdraw its request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.2 by giving written notice to
the Company of its request to withdraw. Such request must be made in writing prior to the earlier
of the execution of the underwriting agreement or the execution of the custody agreement with
respect to such registration. Such withdrawal shall be irrevocable and, after making such
withdrawal, a Holder shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
Section 2.3 Priority in Registrations.
(a) If any requested registration made pursuant to Section 2.1 involves an underwritten
offering and the lead managing underwriter of such offering (the “Manager”) shall advise
the Company that, in its view, the number of securities requested to be included in such
registration by the Holders of Registrable Securities or any other persons, including those shares
of Common Stock requested by the Company to be included in such registration, exceeds the largest
number (the “Section 2.3(a) Sale Number”) that can be sold in an orderly manner in such
offering within a price range acceptable to the Majority Participating Holders, the Company
shall use commercially reasonable efforts to include in such registration:
(i) first, all Registrable Securities requested to be included in such registration by the
Holders thereof; provided, however, that, if the number of such Registrable
Securities exceeds the Section 2.3(a) Sale Number, the number of such Registrable Securities (not
to exceed the Section 2.3(a) Sale Number) to be included in such registration shall be allocated on
a pro rata basis among all Holders requesting that Registrable Securities be included in such
registration, based on the number of Registrable Securities then owned by each such Holder
requesting inclusion in relation to the number of Registrable Securities owned by all Holders
requesting inclusion;
(ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, the remaining shares to be
included in such registration shall be allocated on a pro rata basis among all holders requesting
that securities be included in such registration pursuant to the exercise of Additional Piggyback
Rights (“Piggyback Shares”), based on the aggregate number of Piggyback Shares then owned
by each holder requesting inclusion in relation to the aggregate number of Piggyback Shares owned
by all holders requesting inclusion, up to the Section 2.3(a) Sale Number; and
(iii) third, to the extent that the number of securities to be included pursuant to
clauses (i) and (ii) of this Section 2.3(a) is less than the Section 2.3(a) Sale Number, any
securities that the Company proposes to register, up to the Section 2.3(a) Sale Number.
If, as a result of the proration provisions of this Section 2.3(a), any Holder shall not be
entitled to include all Registrable Securities in a registration that such Holder has requested be
included, such Holder may elect to withdraw its request to include Registrable Securities in such
registration or may reduce the number requested to be included; provided, however,
that (A) such request must be made in writing prior to the earlier of the execution of the
underwriting agreement or the execution of the custody agreement with respect to such registration
and (B) such withdrawal shall be irrevocable and, after making such withdrawal, such Holder shall
no longer have any right to include Registrable Securities in the registration as to which such
withdrawal was made.
(b) If any registration pursuant to Section 2.2 involves an underwritten offering that was
proposed by the Company and the Manager shall advise the Company that, in its view, the number of
securities requested to be included in such registration exceeds the number (the
“Section 2.3(b) Sale Number”) that can be sold in an orderly manner in such registration
within a price range acceptable to the Company, the Company shall include in such registration:
(i) first, all Common Stock that the Company proposes to register for its own account; and
(ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(b) is less than the Section 2.3(b) Sale Number, the
remaining shares to be included in such registration shall be allocated on a pro rata basis
among all holders requesting that Registrable Securities or Piggyback Shares be included in such
registration pursuant to the exercise of piggyback rights pursuant to Section 2.2 of this Agreement
or Additional Piggyback Rights, based on the aggregate number of Registrable Securities and
Piggyback Shares then owned by each holder requesting inclusion in relation to the aggregate number
of Registrable Securities and Piggyback Shares owned by all holders requesting inclusion, up to the
Section 2.3(b) Sale Number.
(c) If any registration pursuant to Section 2.2 involves an underwritten offering that was
proposed by holders of securities of the Company that have the right to require such registration
pursuant to an agreement entered into by the Company in accordance with Section 3.3
(“Additional Demand Rights”) and the Manager shall advise the Company that, in its view,
the number of securities requested to be included in such registration exceeds the number (the
“Section 2.3(c) Sale Number”) that can be sold in an orderly manner in such registration
within a price range acceptable to the Company, the Company shall include in such registration:
(i) first, all securities requested to be included in such registration by the holders of
Additional Demand Rights (“Additional Registrable Securities”); provided,
however, that, if the number of such Additional Registrable Securities exceeds the
Section 2.3(c) Sale Number, the number of such Additional Registrable Securities (not to exceed the
Section 2.3(c) Sale Number) to be included in such registration shall be allocated on a pro rata
basis among all holders of Additional Registrable Securities requesting that Additional Registrable
Securities be included in such registration, based on the number of Additional Registrable
Securities then owned by each such holder requesting inclusion in relation to the number of
Additional Registrable Securities owned by all of such holders requesting inclusion;
(ii) second, to the extent that the number of securities to be included pursuant to clause (i)
of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, the remaining shares to be
included in such registration shall be allocated on a pro rata basis among all holders requesting
that Registrable Securities or Piggyback Shares be included in such registration pursuant to the
exercise of piggyback rights pursuant to Section 2.2 or Additional Piggyback Rights, based on the
aggregate number of Registrable Securities and Piggyback Shares then owned by each holder
requesting inclusion in relation to the aggregate number of Registrable Securities and Piggyback
Shares owned by all holders requesting inclusion, up to the Section 2.3(c) Sale Number; and
(iii) third, to the extent that the number of securities to be included pursuant to
clauses (i) and (ii) of this Section 2.3(c) is less than the Section 2.3(c) Sale Number, any Common
Stock that the Company proposes to register for its own account, up to the Section 2.3(c) Sale
Number.
Section 2.4 Registration Procedures. Whenever the Company is required by the
provisions of this Agreement to use commercially reasonable efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided in this Agreement,
the Company, as expeditiously as possible:
(a) shall prepare and file with the SEC the requisite registration statement, which shall
comply as to form in all material respects with the requirements of the applicable form and shall
include all financial statements required by the SEC to be filed therewith, and use commercially
reasonable efforts to cause such registration statement to become and remain effective
(provided, however, that before filing a registration statement or prospectus or
any amendments or supplements thereto, or comparable statements under securities or blue sky laws
of any jurisdiction, or any Issuer Free Writing Prospectus related thereto, the Company will
furnish to one counsel for the Holders participating in the planned offering (selected by the
Majority Participating Holders) and the lead managing underwriter, if any, copies of all such
documents proposed to be filed (including all exhibits thereto), which documents will be subject to
the reasonable review and reasonable comment of such counsel, and the Company shall not file any
registration statement or amendment thereto, any prospectus or supplement thereto or any Issuer
Free Writing Prospectus related thereto to which the Majority Participating Holders or the
underwriters, if any, shall reasonably object);
(b) shall prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for such period as any seller of Registrable Securities pursuant
to such registration statement shall request and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
(c) shall furnish, without charge, to each seller of such Registrable Securities and each
underwriter, if any, of the securities covered by such registration statement such number of copies
of such registration statement, each amendment thereto, the prospectus included in such
registration statement, each preliminary prospectus and each Issuer Free Writing Prospectus
utilized in connection therewith, all in conformity with the requirements of the Securities Act,
and such other documents as such seller and underwriter reasonably may request in order to
facilitate the public sale or other disposition of the Registrable Securities owned by such seller,
and shall consent to the use in accordance with all applicable law of each such registration
statement, each amendment thereto, each such prospectus, preliminary prospectus or Issuer Free
Writing Prospectus by each such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by such registration
statement or prospectus;
(d) shall use commercially reasonable efforts to register or qualify the Registrable
Securities covered by such registration statement under such other securities or “blue sky” laws of
such jurisdictions as any sellers of Registrable Securities or any managing underwriter, if any,
reasonably shall request, and do any and all other acts and things that may be reasonably necessary
or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the
Registrable Securities in such jurisdictions, except that in no event shall the Company be required
to qualify to do business as a foreign corporation in any jurisdiction where, but for the
requirements of this Section 2.4(d), it would not be required to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) shall promptly notify each Holder selling Registrable Securities covered by such
registration statement and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto, any post-effective amendment to the registration statement
or any Issuer Free Writing Prospectus has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for amendments or supplements to
the registration statement or the prospectus related thereto or for additional information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose;
(v) of the existence of any fact of which the Company becomes aware which results in the
registration statement, the prospectus related thereto, any document incorporated therein by
reference, any Issuer Free Writing Prospectus or the information conveyed to any purchaser at the
time of sale to such purchaser containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to make any statement therein not
misleading; and
(vi) if at any time the representations and warranties contemplated by any underwriting
agreement, securities sale agreement, or other similar agreement, relating to the offering shall
cease to be true and correct in all material respects;
and, if the notification relates to an event described in clause (v), the Company, subject to the
provisions of Section 2.1(c), promptly shall prepare and file with the SEC, and furnish to each
seller and each underwriter, if any, a reasonable number of copies of, a prospectus supplemented or
amended so that, as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(f) shall comply with all applicable rules and regulations of the SEC, and make generally
available to its security holders, as soon as reasonably practicable after the effective date of
the registration statement (and in any event within 90 days after the end of such 12 month period
described hereafter), an earnings statement, which need not be audited, covering the period of at
least 12 consecutive months beginning with the first day of the Company’s first calendar quarter
after the effective date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) shall use commercially reasonable efforts to cause all Registrable Securities covered by
such registration statement to be authorized to be listed on a national
securities exchange if shares of the particular class of Registrable Securities are at that
time, or will be immediately following the offering, listed on such exchange;
(h) shall provide and cause to be maintained a transfer agent and registrar for all such
Registrable Securities covered by such registration statement not later than the effective date of
such registration statement;
(i) shall enter into such customary agreements (including, if applicable, an underwriting
agreement) and take such other actions as the Majority Participating Holders shall reasonably
request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) shall use commercially reasonable efforts to obtain an opinion from the Company’s counsel
and a “cold comfort” letter from the Company’s independent public accountants in customary form and
covering such matters as are customarily covered by such opinions and “cold comfort” letters
delivered to underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the underwriter, if any;
(k) shall use commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of the registration statement;
(l) shall provide a CUSIP number for all Registrable Securities, not later than the effective
date of the registration statement;
(m) shall make reasonably available its employees and personnel for participation in “road
shows” and other marketing efforts and otherwise provide reasonable assistance to the underwriters,
taking into account the needs of the Company’s businesses and the requirements of the marketing
process, in the marketing of Registrable Securities in any underwritten offering;
(n) shall promptly prior to the filing of any document that is to be incorporated by reference
into the registration statement or the prospectus, and prior to the filing of any Issuer Free
Writing Prospectus, provide copies of such document to counsel for the selling holders of
Registrable Securities and to each managing underwriter, if any, and make the Company’s
representatives reasonably available for discussion of such document and make such changes in such
document concerning the selling holders prior to the filing thereof as counsel for such selling
holders or underwriters may reasonably request;
(o) shall cooperate with the sellers of Registrable Securities and the managing underwriter,
if any, to facilitate the timely preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in accordance with the
underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not
an underwritten offering, in accordance with the instructions of the sellers of Registrable
Securities at least three Business Days prior to any sale of Registrable Securities and instruct
any transfer agent and registrar of Registrable Securities to release any stop transfer orders in
respect thereof;
(p) shall take all such other commercially reasonable actions as are necessary or advisable in
order to expedite or facilitate the disposition of such Registrable Securities;
(q) shall not take any direct or indirect action prohibited by Regulation M under the Exchange
Act; provided, however, that to the extent that any prohibition is applicable to
the Company, the Company will take such action as is necessary to make any such prohibition
inapplicable;
(r) shall cooperate with each seller of Registrable Securities and each underwriter or agent
participating in the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with FINRA; and
(s) shall take all reasonable action to ensure that any Issuer Free Writing Prospectus
utilized in connection with any registration covered by Section 2.1 or 2.2 complies in all material
respects with the Securities Act, is filed in accordance with the Securities Act to the extent
required thereby, is retained in accordance with the Securities Act to the extent required thereby
and, when taken together with the related prospectus, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
The Company may require as a condition precedent to the Company’s obligations under this
Section 2.4 that each seller of Registrable Securities as to which any registration is being
effected furnish the Company such information in writing regarding such seller and the distribution
of such Registrable Securities as the Company from time to time reasonably may request;
provided, that such information is necessary for the Company to consummate such
registration and shall be used only in connection with such registration. Each seller of
Registrable Securities agrees that upon receipt of any notice from the Company under
Section 2.4(e)(v), such seller will discontinue such seller’s disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities until such seller’s
receipt of the copies of the supplemented or amended prospectus. In the event the Company shall
give any such notice, the applicable period set forth in Section 2.4(b) shall be extended by the
number of days during such period from and including the date of the giving of such notice to and
including the date when each seller of any Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended prospectus. If any such
registration statement or comparable statement under “blue sky” laws refers to any Holder by name
or otherwise as the Holder of any securities of the Company, such Holder shall have the right to
require (i) the insertion therein of language, in form and substance reasonably satisfactory to
such Holder and the Company, to the effect that the holding by such Holder of such securities is
not to be construed as a recommendation by such Holder of the investment quality of the Company’s
securities covered thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company or (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state “blue sky” or securities
law then in force, the deletion of the reference to such Holder.
Section 2.5 Automatic Shelf Registration Statements. To the extent the Company is a
well-known seasoned issuer as defined in Rule 405 under the Securities Act (a “WKSI”) at
the
time any Demand Registration Request is submitted to the Company, and such Demand Registration
Request requests that the Company file an automatic shelf registration statement as defined in
Rule 405 under the Securities Act (an “automatic shelf registration statement”) on
Form S-3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. The Company shall use commercially reasonable efforts to remain a WKSI and not become an ineligible issuer (as defined in Rule 405 under the Securities Act) during the period during which such automatic shelf registration statement is required to remain effective. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company shall pay such fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be kept effective. If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner, in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
Form S-3, the Company shall file an automatic shelf registration statement that covers those Registrable Securities that are requested to be registered. The Company shall use commercially reasonable efforts to remain a WKSI and not become an ineligible issuer (as defined in Rule 405 under the Securities Act) during the period during which such automatic shelf registration statement is required to remain effective. If the Company does not pay the filing fee covering the Registrable Securities at the time the automatic shelf registration statement is filed, the Company shall pay such fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status, the Company determines that it is not a WKSI, the Company shall use commercially reasonable efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be kept effective. If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, the Company shall include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act, referring to the unnamed selling security holders in a generic manner, in order to ensure that the Holders may be added to such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
Section 2.6 Registration Expenses.
(a) The Company shall pay all Registration Expenses (i) with respect to any Demand
Registration whether or not it becomes effective or remains effective for the period contemplated
by Section 2.4(b) and (ii) with respect to any registration effected under Section 2.2.
(b) Notwithstanding the foregoing, (i) the provisions of this Section 2.6 shall be deemed
amended to the extent necessary to cause these expense provisions to comply with “blue sky” laws of
each state in which the offering is made, (ii) in connection with any registration hereunder, each
Holder of Registrable Securities being registered shall pay all underwriting discounts and
commissions and any transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in accordance with the
number of shares sold in the offering by such Holder and (iii) the Company shall, in the case of
all registrations under this Article II, be responsible for all its internal expenses.
Section 2.7 Underwritten Offerings. If (a) requested by the underwriters for any
underwritten offering by the Holders pursuant to a registration requested under Section 2.1, the
Company shall enter into a customary underwriting agreement with the underwriters or (b) the
Company shall have determined to enter into an underwriting agreement in connection with a
registration pursuant to Section 2.2, any Registrable Securities to be included in such
registration shall be subject to such underwriting agreement. Such underwriting agreement shall be
satisfactory in form and substance to the Majority Participating Holders and shall contain
such representations and warranties by, and such other agreements on the part of, the Company and
such other terms as are generally prevailing in agreements of that type. Any Holder participating
in the offering shall be a party to such underwriting agreement and, at its option, may require
that any or all of the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters also shall be made to and for the benefit
of such Holder and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the obligations of such
Holder; provided, however, that the Company shall not be required to make any
representations or warranties with respect to written information specifically provided by a
selling Holder for inclusion in the registration statement. No Holder shall be required to make
any representations or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Holder, its ownership of and title to the
Registrable Securities and its intended method of distribution; and any liability of such Holder to
any underwriter or other Person under such underwriting agreement shall be limited to liability
arising from breach of its representations and warranties and shall be limited to an amount equal
to the proceeds (net of expenses and underwriting discounts and commissions) that it derives from
such registration. No Person may participate in a registration involving an underwritten offering
unless such Person agrees to sell such Person’s securities on the basis provided in the applicable
underwriting agreement and, subject to the provisions of this Section 2.7, completes and executes
all reasonable questionnaires, and other documents, including custody agreements and powers of
attorney, that must be executed in connection therewith, and provides such other information to the
Company or the underwriter as may be necessary to register such Person’s securities.
Section 2.8 Holdback Agreements.
(a) Each seller of Registrable Securities agrees, to the extent requested in writing by a
managing underwriter, if any, of any registration effected pursuant to Section 2.1, not to sell,
transfer or otherwise dispose of, including any sale pursuant to Rule 144 under the Securities Act,
any Common Stock, or any other equity security of the Company or any security convertible into or
exchangeable or exercisable for any equity security of the Company other than as part of such
underwritten public offering during the time period reasonably requested by the managing
underwriter, not to exceed 90 days.
(b) The Company agrees that, if it shall previously have received a request for registration
pursuant to Section 2.1 or 2.2, and if such previous registration shall not have been withdrawn or
abandoned, it shall not sell, transfer or otherwise dispose of any Common Stock, or any other
equity security of the Company or any security convertible into or exchangeable or exercisable for
any equity security of the Company (other than as part of such underwritten public offering, a
registration on Form S-4 or Form S-8 or any successor or similar form which is then in effect or
upon the conversion, exchange or exercise of any then outstanding Common Stock Equivalent), until a
period of 180 days shall have elapsed from the effective date of such previous registration; and
the Company shall so provide in any registration rights agreements hereafter entered into with
respect to any of its securities.
Section 2.9 No Required Sale. Nothing in this Agreement shall be deemed to create an
independent obligation on the part of any Holder to sell any Registrable Securities pursuant to any
effective registration statement.
Section 2.10 Indemnification.
(a) In the event of any registration of any securities of the Company under the Securities Act
pursuant to this Article II, the Company will, and hereby agrees to, indemnify and hold harmless,
to the fullest extent permitted by law, each Holder of Registrable Securities, its directors,
officers, fiduciaries, employees, agents, Affiliates, consultants, representatives, general and
limited partners, stockholders, successors, assigns (and the directors, officers, employees and
stockholders thereof), and each other Person, if any, who controls such Holder within the meaning
of the Securities Act, from and against any and all losses, claims, damages or liabilities, joint
or several, actions or proceedings (whether commenced or threatened) and expenses (including
reasonable fees of counsel and any amounts paid in any settlement effected with the Company’s
consent, which consent shall not be unreasonably withheld or delayed) to which each such
indemnified party may become subject under the Securities Act or otherwise in respect thereof
(collectively, “Losses”), insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact necessary to be stated or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, in any registration statement
under which such securities were registered under the Securities Act, or amendment thereof or
supplement thereto, or in any preliminary, final or summary prospectus or any amendment or
supplement thereto, together with the documents incorporated by reference therein, or any Issuer
Free Writing Prospectus utilized in connection therewith, and the Company will reimburse any such
indemnified party for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Loss as such expenses are incurred;
provided, however, that the Company shall not be liable to any such indemnified
party in any such case to the extent such Loss arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact or omission or alleged omission of a material fact
made in such registration statement or amendment thereof or supplement thereto or in any such
prospectus or any preliminary, final or summary prospectus or Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of such indemnified party specifically for use therein. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any investigation made by or on behalf
of such indemnified party and shall survive the transfer of such securities by such Holder.
(b) Each Holder of Registrable Securities that are included in the securities as to which any
registration under Section 2.1 or 2.2 is being effected shall, severally and not jointly, indemnify
and hold harmless (in the same manner and to the same extent as set forth in paragraph (a) of this
Section 2.10), to the fullest extent permitted by law, the Company, its officers and directors,
each Person controlling the Company within the meaning of the Securities Act and all other
prospective sellers and their respective directors, officers, fiduciaries, employees, agents,
Affiliates, consultants, representatives, general and limited partners, stockholders, successors,
assigns and respective controlling Persons with respect to any untrue statement or alleged untrue
statement of any material fact in, or omission or alleged omission of any material fact from, such
registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus utilized in connection therewith, if such statement or alleged statement or omission or
alleged omission was made in reliance upon and in conformity with written information furnished to
the Company or its representatives by or on behalf of such Holder specifically for use therein and
reimburse such indemnified party for any legal or other expenses reasonably incurred in connection
with investigating or defending any such Loss as such expenses are incurred; provided,
however, that the aggregate amount that any such Holder shall be required to pay pursuant
to this Section 2.10 shall in no case be greater than the amount of the net proceeds received by
such Holder upon the sale of the Registrable Securities pursuant to the registration statement
giving rise to such claim. Such indemnity and reimbursement of expenses shall remain in full force
and effect regardless of any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such Holder.
(c) Any Person entitled to indemnification under this Agreement promptly shall notify the
indemnifying party in writing of the commencement of any action or proceeding with respect to which
a claim for indemnification may be made pursuant to this Section 2.10, but the failure of any such
Person to provide such notice shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 2.10, except to the extent the indemnifying party is
materially prejudiced thereby. In case any action or proceeding is brought against an indemnified
party and it shall notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense thereof jointly with any other
indemnifying party similarly notified, to the extent that it chooses, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of investigation;
provided, however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding within 20 days after receiving
notice from such indemnified party, (ii) if such indemnified party who is a defendant in any action
or proceeding that is also brought against the indemnifying party reasonably shall have concluded
that there may be one or more legal defenses available to such indemnified party that are not
available to the indemnifying party or (iii) if representation of both parties by the same counsel
is otherwise inappropriate under applicable standards of professional conduct, then, in any such
case, the indemnified party shall have the right to assume or continue its own defense as set forth
above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction,
except to the extent any indemnified party or parties reasonably shall have concluded that there
may be legal defenses available to such party or parties that are not available to the other
indemnified parties or to the extent representation of all indemnified parties by the same counsel
is otherwise inappropriate under applicable standards of professional conduct) and the indemnifying
party shall be liable for any expenses therefor. Without the written consent of the indemnified
party, which consent shall not be unreasonably withheld, no indemnifying party shall effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder, whether or not the indemnified party is an actual or potential party to such action or
claim, unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(d) If for any reason the foregoing indemnity is unavailable or is insufficient to hold
harmless an indemnified party under Section 2.10(a), (b) or (c), then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of any Loss in such
proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one
hand, and the indemnified party, on the other hand, with respect to such offering of securities.
The 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 the indemnifying party or the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. If, however, the allocation provided in the second preceding
sentence is not permitted by applicable law, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party in such proportion as is appropriate to reflect
not only such relative faults but also the relative benefits of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this Section 2.10(d) were to
be determined by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentences of this
Section 2.10(d). The amount paid or payable in respect of any Loss shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Loss. 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. Notwithstanding anything in this
Section 2.10(d) to the contrary, no indemnifying party other than the Company shall be required
pursuant to this section 2.10(d) to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of Registrable Securities in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate, less the amount of any
indemnification payment made by such indemnifying party pursuant to Sections 2.10(b).
(e) The indemnity and contribution agreements contained herein shall be in addition to any
other rights to indemnification or contribution which any indemnified party may have pursuant to
law or contract and shall remain operative and in full force and effect regardless of any
investigation made or omitted by or on behalf of any indemnified party and shall survive the
transfer of the Registrable Securities by any such party.
(f) The indemnification and contribution required by this Section 2.10 shall be made by
periodic payments of the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
ARTICLE III
GENERAL
GENERAL
Section 3.1 Rule 144. The Company covenants that (a) upon such time as it becomes,
and so long as it remains, subject to the reporting provisions of the Exchange Act, it will timely
file the reports required to be filed by it under the Securities Act or the Exchange Act or, if it
is not required to file such reports, upon the request of any Holder it shall make publicly
available other information so long as necessary to permit sales of such Registrable Securities in
compliance with Rule 144 under the Securities Act and (b) it will take such further action as any
Holder of Registrable Securities reasonably may request, all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
Section 3.2 Nominees for Beneficial Owners. If Registrable Securities are held by a
nominee for the beneficial owner thereof, the beneficial owner thereof may, at its option, be
treated as the Holder of such Registrable Securities for purposes of any request or other action by
any Holder or Holders of Registrable Securities pursuant to this Agreement or any determination of
any number or percentage of shares constituting Registrable Securities held by any Holder or
Holders of Registrable Securities contemplated by this Agreement; provided, that the
Company shall have received assurances reasonably satisfactory to it of such beneficial ownership.
Section 3.3 No Inconsistent Agreements. The rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with and are not inconsistent with any
other agreements to which the Company is a party or by which it is bound. Without the prior
written consent of Holders of a majority of the then outstanding Registrable Securities, the
Company will not enter into any agreement with respect to its securities that is inconsistent with
the rights granted in this Agreement or otherwise conflicts with the provisions hereof or provides
terms and conditions that are more favorable to, or less restrictive on, the other party thereto
than the terms and conditions contained in this Agreement are to the Holders, other than any
lock-up agreement with the underwriters in connection with any registered offering effected
hereunder, pursuant to which the Company shall agree not to register for sale, and the Company
shall agree not to sell or otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period following the registered
offering. If the Company enters into any other registration rights agreement with respect to any
of its securities that contains terms that are more favorable to, or less restrictive on, the other
party thereto than the terms and conditions contained in this Agreement are to the Holders, the
terms and conditions of this Agreement shall immediately be deemed to have been amended without
further action by the Company or any of the Holders of Registrable Securities so that the Holders
shall each be entitled to the benefit of any such more favorable or less restrictive terms or
conditions.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
Section 4.1 Amendment and Waiver.
(a) Any provision of this Agreement may be amended or waived if, and only if, such amendment
or waiver is in writing and is signed, in the case of an amendment, by the Company and a majority
in interest of the Holders or, in the case of a waiver, by the party or parties against whom the
waiver is to be effective, in an instrument specifically designated as an amendment or waiver
hereto; provided, however, that waiver by the Holders shall require the consent of
a majority in interest of the Holders.
(b) No failure or delay of any party in exercising any right or remedy hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such right or power, or any course of conduct,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or
remedies which they would otherwise have hereunder.
Section 4.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if
by facsimile, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the
first Business Day following the date of dispatch if delivered utilizing a next-day service by a
recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day
following the date of mailing if delivered by registered or certified mail, return receipt
requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth
below, or pursuant to such other instructions as may be designated in writing by the party to
receive such notice:
(i) if to any Holder other than the Original Holders, to its last known address appearing on
the books of the Company maintained for such purpose, and if to the Original Holders, to:
| Xxxxx X. Xxxxxxx Living Trust | ||||||
| Attention: | ||||||
| Facsimile: | ||||||
| with a copy (which shall not constitute notice) to: | ||||||
| Castle & Xxxxx Holdings, Inc. | ||||||
| Attention: | ||||||
| Facsimile: | ||||||
| (ii) | if to the Company, to: | ||
| Xxxx Food Company, Inc. Xxx Xxxx Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: C. Xxxxxxx Xxxxxx Facsimile: (000) 000-0000 |
|||
| with a copy (which shall not constitute notice) to: | |||
| Xxxxxx, Xxxx & Xxxxxxxx LLP 0000 Xxxxxxx Xxxx Xxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxxx X. Xxxxx Facsimile: (000) 000-0000 |
or such other address as the Company or the Original Holders shall have specified to the other
party in writing in accordance with this Section 4.2.
Section 4.3 Interpretation. When a reference is made in this Agreement to a Section
or Article, such reference shall be to a Section or Article of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for convenience of reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as the circumstances require. The
word “including” and words of similar import when used in this Agreement will mean “including,
without limitation,” unless otherwise specified. Each of the parties hereto acknowledges that it
has been represented by counsel in connection with this Agreement and the transactions contemplated
by this Agreement. Accordingly, any rule of law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the drafting party has no
application and is expressly waived.
Section 4.4 Entire Agreement. This Agreement constitutes the entire agreement, and
supersede all prior written agreements, arrangements, communications and understandings and all
prior and contemporaneous oral agreements, arrangements, communications and understandings between
the parties with respect to the subject matter hereof and thereof.
Section 4.5 No Third-Party Beneficiaries. Except as provided in Section 2.10, nothing
in this Agreement, express or implied, is intended to or shall confer upon any Person other than
the parties and their respective successors and permitted assigns any legal or equitable right,
benefit or remedy of any nature under or by reason of this Agreement.
Section 4.6 Governing Law. This Agreement and all disputes or controversies arising
out of or relating to this Agreement or the transactions contemplated hereby shall be governed by,
and construed in accordance with, the internal laws of the State of Delaware, without regard to the
laws of any other jurisdiction that might be applied because of the conflicts of laws principles of
the State of Delaware.
Section 4.7 Submission to Jurisdiction. Each of the parties irrevocably agrees that
any legal action or proceeding arising out of or relating to this Agreement brought by any other
party or its successors or assigns shall be brought and determined in any Delaware State or federal
court, and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the
aforesaid courts for itself and with respect to its property, generally and unconditionally, with
regard to any such action or proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or
proceeding relating thereto except in the courts described above in Delaware, other than actions in
any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such
court in Delaware as described herein. Each of the parties further agrees that notice as provided
herein shall constitute sufficient service of process and the parties further waive any argument
that such service is insufficient. Each of the parties hereby irrevocably and unconditionally
waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in
any action or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the
courts in Delaware as described herein for any reason, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of
judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced
in or by such courts.
Section 4.8 Assignment; Successors. This Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the parties and their respective successors and assigns. If any
Affiliate of an Original Holder shall acquire shares of Common Stock that then constitute
Registrable Securities from any Holder in any manner, whether by operation of law or otherwise,
such Person shall promptly notify the Company and such Registrable Securities acquired from such
Holder shall be held subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and provisions of this
Agreement. Any such successor or assign shall agree in writing to acquire and hold the Registrable
Securities acquired from such Holder subject to all of the terms hereof.
Section 4.9 Enforcement. The parties agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to
specific performance of the terms hereof, including an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement
in any Delaware State or federal court, this being in addition to any other remedy to which such
party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense
in any action for specific performance that a remedy at law would be adequate and (b) any
requirement under any law to post security as a prerequisite to obtaining equitable relief.
Section 4.10 Severability. Whenever possible, each provision or portion of any
provision of this Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or portion of any provision of this Agreement is held
to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
Section 4.11 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.12 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same instrument and shall become
effective when one or more counterparts have been signed by each of the parties and delivered to
the other parties.
Section 4.13 Facsimile Signature. This Agreement may be executed by facsimile
signature and a facsimile signature shall constitute an original for all purposes
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above
written.
| XXXX FOOD COMPANY, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| THE XXXXX X. XXXXXXX LIVING TRUST DATED MAY 28, 1986, AS AMENDED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CASTLE & XXXXX HOLDINGS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
