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REGISTRATION RIGHTS AGREEMENT
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Dated as of May 13, 1998
among
XXXXX & MINOR, INC.
XXXXX & MINOR TRUST I
and
X.X. XXXXXX SECURITIES INC.,
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION,
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of May 13, 1998, by and among XXXXX & MINOR, INC., a Virginia corporation
(the "Company"), XXXXX & MINOR TRUST I, a statutory business trust organized
under the Business Trust Act of the State of Delaware (the "Trust") and X.X.
XXXXXX SECURITIES INC., XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION, and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED (collectively, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 13, 1998, among the Company, the Trust and the
Initial Purchasers (the "Purchase Agreement") relating to the sale by the Trust
to the Initial Purchasers, severally, of up to 2,760,000 shares of its $2.6875
Term Convertible Securities, Series A ("TECONS"). The TECONS are convertible
into shares of common stock, par value $2.00 per share, of the Company (such
shares, the "Common Stock"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, each of the Company and the Trust has agreed to
provide the registration rights set forth in this Agreement for the equal
benefit of the Initial Purchasers and their direct and indirect transferees. The
execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the TECONS under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See Section 4.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Common Stock: See the introductory paragraph to this
Agreement.
Company: Xxxxx & Minor, Inc.
Declaration: The Declaration of Trust among the Trustees and
the Trust.
DTC: See Section 4(a).
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Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 2(a).
Event Date: See Section 3(b).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Issue Date.
Holder: Any record holder of Registrable Securities.
Guarantee: The Guarantee by the Company of certain payments to
be made by the Trust in accordance with the Guarantee Agreement.
Guarantee Agreement: The Guarantee Agreement, dated May 13,
1998, executed and delivered by the Company for the benefit of the Holders as
amended or supplemented from time to time in accordance with the terms thereof.
Indemnified Person: See Section 6.
Indemnifying Person: See Section 6.
Indenture: The Indenture, dated as of May 13, 1998, between
the Company and The First National Bank of Chicago, as trustee, pursuant to
which the Junior Subordinated Debentures are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: X.X. Xxxxxx Securities Inc., Xxxxxxxxx
Lufkin & Xxxxxxxx Securities Corporation, and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.
Initial Shelf Registration: See Section 2(a).
Issue Date: The original issue date of the TECONS.
Junior Subordinated Debentures: The 5.375% Junior Subordinated
Convertible Debentures due 2013 of the Company issued to the Trust pursuant to
the terms of the Indenture.
Liquidated Damages: See Section 3.
NASD: See Section 4(p).
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Participant: See Section 6.
Person: An individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Registrable Securities: The Securities upon original issuance
of the Securities and at all times subsequent thereto until (i) a Registration
Statement covering such Securities has been declared effective by the SEC and
such Securities have been disposed of in accordance with such effective
Registration Statement, (ii) such Securities are sold in compliance with Rule
144, or (iii) Securities cease to be outstanding.
Registrants: The Company and the Trust, collectively.
Registration Statement: Any registration statement of the
Registrants that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated 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.
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SEC: The Securities and Exchange Commission.
Securities: The TECONS, the Junior Subordinated Debentures,
the Guarantee and the Common Stock, until the TECONS have all been converted
into Common Stock, in which case Securities shall mean the Common Stock.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b).
Subsequent Shelf Registration: See Section 2(b).
TECONS: See the introductory paragraph to this Agreement.
TIA: The Trust Indenture Act of 1939, as amended.
Trustees: The trustees under the Declaration.
Underwritten registration or underwritten offering: A
registration in which securities of the Registrants are sold to an underwriter
for reoffering to the public.
2. Shelf Registration
(a) The Registrants shall prepare and file with the SEC a
Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the
"Initial Shelf Registration");provided, that, with respect to any
particular Registrable Security, the Holder thereof shall have provided
all information regarding such Holder and the distribution of such
Registrable Security as may be required to be in a registration
statement filed under the Securities Act. The Registrants shall use
their reasonable best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. The Initial Shelf
Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by
such holders in the manner or manners reasonably designated by them
(including, without limitation, one or more underwritten offerings).
The Registrants shall not permit any securities other than the
Registrable Securities to be included in the Initial Shelf Registration
or any Subsequent Shelf Registration (as defined below). The
Registrants shall use their reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the 150th following the Issue Date and to
keep the Initial Shelf Registration continuously effective under the
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Securities Act until the date which is 24 months from the Issue Date
(subject to extension pursuant to the last paragraph of Section 4
hereof) (the "Effectiveness Period"), or such shorter period ending
when (i) none of the Securities constitute Registrable Securities or
(ii) a Subsequent Shelf Registration covering all of the Registrable
Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period,
the Registrants shall use their reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 45 days of such cessation of
effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable
Securities covered by the Initial Shelf Registration Statement and not
theretofore sold (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Registrants shall use their reasonable
best efforts to cause the Subsequent Shelf Registration to be declared
effective as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of
days during which the Initial Shelf Registration or any Subsequent
Shelf Registration was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Registrants shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used
for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority of the shares of
Common Stock constituting, or issuable upon conversion of, the
Registrable Securities covered by such Registration Statement or by any
underwriter of such Registrable Securities.
3. Liquidated Damages
(a) The Registrants and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the
Registrants fail to fulfill their obligations under Section 2 hereof
and that it would not be feasible to ascertain the extent of such
damages with precision. Accordingly, the Registrants agree to pay, as
liquidated damages, additional cumulative cash distributions on the
Registrable Securities ("Liquidated Damages") (i) if the Initial Shelf
Registration Statement is not declared effective by the Commission on
or prior to the Effectiveness Date and (ii) if the effectiveness of the
Initial Shelf Registration Statement for resales thereunder is
suspended at any time during the Effectiveness Period in excess of 30
days in any consecutive three month period or 60 days in any
consecutive 12-month period (the "Black Out Period"), then, in each
case, Liquidated Damages shall accumulate on the Registrable Securities
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included or that should have been included in such Registration
Statement over and above the stated dividend at a rate of $0.25 per
TECON per annum, commencing on (x) the 181st day after the Issue Date
in the case of clause (i) above and (y) the day such Initial Shelf
Registration Statement ceases to be effective in excess of the Black
Out Period in the case of clause (ii) above; provided, however, that
(1) upon the effectiveness of the Shelf Registration as required
hereunder (in the case of clause (a)(i) of this Section 3) or (2) upon
the effectiveness of the Shelf Registration which had ceased to remain
effective (in the case of (a)(ii) of this Section 3), Liquidated
Damages on the Registrable Securities as a result of such clause, shall
cease to accrue.
(b) The Registrants shall notify the Trustees within five
business days after each and every date on which an event occurs in
respect of which Liquidated Damages are required to be paid (an "Event
Date"). The Registrants shall pay the Liquidated Damages due on the
Registrable Securities by paying an increased cash distribution on the
applicable quarterly distribution payment date, or, if cash
distributions are not being paid on the TECONS in accordance with the
Declaration, by accumulating distributions at the higher rate. The
Liquidated Damages due shall be payable on each distribution payment
date to the record Holder of Registrable Securities entitled to receive
the distribution payment to be made on such date as set forth in the
Declaration. The amount of Liquidated Damages will be determined by
multiplying the applicable Liquidated Damages by the number of shares
of Common Stock constituting, or issuable upon conversion of, the
affected Registrable Securities of such Holders, multiplied by a
fraction, the numerator of which is the number of days such Liquidated
Damages were applicable during such period (determined on the basis of
a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator
of which is 360. Each obligation to pay Liquidated Damages shall be
deemed to accumulate immediately following the occurrence of the
applicable Event Date. The parties hereto agree that the Liquidated
Damages provided for in this Section 3 constitutes a reasonable
estimate of the damages that may be incurred by Holders of Registrable
Securities by reason of the failure of a Shelf Registration to be
declared effective or to remain effective, as the case may be, in
accordance with this Section 3.
4. Registration Procedures
In connection with the registration of any Registrable
Securities pursuant to Section 2 hereof, the Registrants shall effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Registrants shall:
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(a) Use their reasonable best efforts to prepare and file with
the SEC prior to the Filing Date, a Registration Statement as
prescribed by Section 2, and to use their reasonable best efforts to
cause such Registration Statement to become effective and remain
effective as provided herein, provided that, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Registrants shall upon written request furnish to and
afford the Holders of the Registrable Securities (which in the case of
Registrable Securities in the form of global certificates shall be The
Depository Trust Company ("DTC")) to be covered by such Registration
Statement, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the selling Holders of Registrable Securities named
in the Shelf Registration Statement promptly (but in any event within
five business days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one conformed copy of
such Registration Statement or post-effective amendment), (ii) of the
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issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for
that purpose, (iii) of the receipt by the Registrants of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (iv) of
the happening of any event or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any 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, and (v) of the Registrants' reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use their reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, and, if any
such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) If requested by the Holders of a majority of the shares of
Common Stock constituting, or issuable upon conversion of, the
Registrable Securities being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as such Holders reasonably
request to be included therein, or (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Registrants have received notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment.
(f) Deliver to each selling Holder of Registrable Securities,
without charge, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein
as such Persons may reasonably request; and, subject to the last
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paragraph of this Section 4, the Registrants hereby consent to the use
of such Prospectus and each amendment or supplement thereto by each of
the selling holders of Registrable Securities and the underwriters or
agents, if any, and dealers (if any), in connection with the offering
and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities, to
use their reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Securities in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder reasonably
requests in writing, provided that where Registrable Securities are
offered other than through an underwritten offering, the Registrants
agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to
this Section 4(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
reasonable acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered
by the applicable Registration Statement, provided that neither the
Company nor the Trust shall be required to (A) qualify generally to do
business in any jurisdiction where it is then so qualified, (B) take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself
to taxation in excess of a nominal dollar amount in any such
jurisdiction.
(h) Reasonably cooperate with the selling Holders of
Registrable Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible
for deposit with DTC; and enable such Registrable Securities to be
registered in such names as the managing underwriter or underwriters,
if any, or Holders may request.
(i) Use their reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other United States governmental agencies or
authorities of the United States as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate
the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Registrants will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
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(j) Upon the occurrence of any event contemplated by paragraph
4(c)(iv) or 4(c)(v) above, as promptly as practicable prepare and
(subject to Section 4(a) above) file with the SEC, solely at the
expense of the Registrants, a supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, any such Prospectus will not contain 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.
(k) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustees with printed certificates for the Registrable Securities in a
form eligible for deposit with DTC and (ii) provide a CUSIP number for
the Registrable Securities.
(l) Provide an indenture trustee for the Junior Subordinated
Debentures and cause the Indenture and the Guarantee Agreement to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Securities; and in
connection therewith, cooperate with the trustee under the Indenture
and the holders of the Registrable Securities, to effect such changes
to the Indenture and the Guarantee Agreement as may be required for the
Indenture and the Guarantee Agreement to be so qualified in accordance
with the terms of the TIA; and execute, and use their reasonable best
efforts to cause such trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture and the
Guarantee Agreement to be so qualified in a timely manner.
(m) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 90 days after
the end of any 12-month period (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day
of the first fiscal quarter of the Company after the effective date of
a Shelf Registration Statement.
(n) Reasonably cooperate with each seller of Registrable
Securities covered by any Registration Statement participating in the
disposition of such Registrable Securities and their respective counsel
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in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(o) Use their reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
The Registrants may require each seller of Registrable
Securities to furnish to the Registrants such information regarding such seller
and the distribution of such Registrable Securities as the Registrants may, from
time to time, reasonably request. The Registrants may exclude from such
registration the Registrable Securities of any seller who fails to furnish such
information within a reasonable time after receiving such request. Each seller
as to which any Shelf Registration is being effected is deemed to agree to
furnish promptly to the Registrants all information required to be disclosed in
order to make the information previously furnished to the Registrants by such
seller not materially misleading.
Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the
Registrants of the happening of any event of the kind described in Section
4(c)(ii), 4(c)(iii), 4(c)(iv), or 4(c)(v), such Holder will forthwith
discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(k), or until
it is advised in writing (the "Advice") by the Registrants that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto. In the event the Registrants shall give any such notice,
the Effectiveness Period 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 Registrable Securities covered by such Registration
Statement shall be given (x) the copies of the supplemented or amended
Prospectus contemplated by Section 4(k) or (y) the Advice.
5. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Registrants shall be borne by the
Registrants whether or not a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of one counsel in connection with
Blue Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
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jurisdictions in the United States as provided in Section 4(g)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities, by the Holders
of a majority of shares of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Registrants, (v) fees and
disbursements of all independent certified public auditors for the Registrants,
(vi) rating agency fees, (vii) Securities Act liability insurance, if the
Registrants desire such insurance, (viii) fees and expenses of all other Persons
retained by the Registrants, (ix) internal expenses of the Registrants
(including, without limitation, all salaries and expenses of officers and
employees of the Registrants performing legal or accounting duties), (x) the
expense of any annual audit, (xi) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
if applicable, (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement and (xiii) fees and expenses of the Trustees and the
trustee under the Indenture (including reasonable fees and expenses of counsel
to such trustees).
6. Indemnification
The Registrants agree, jointly and severally, to indemnify and
hold harmless each Holder of Registrable Securities, the officers and directors
of each such person, and each person, if any, who controls any such person
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant"), from and against any and all losses,
claims, damages, liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Registrants shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Participant furnished in writing to the Registrants by or on behalf of such
Participant expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Participant (or to the benefit of any person controlling
such Participant) from whom the person asserting any such losses, claims,
damages, liabilities or judgments purchased Registrable Securities if a copy of
the Prospectus (as then amended or supplemented if the Registrants shall have
furnished any amendments or supplements thereto) was not sent or given by or on
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behalf of such Participant to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of such
Registrable Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages, liabilities or judgments.
Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless each of the Company and the Trust, its
respective directors, officers and each person, if any, who controls the Company
or the Trust within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Registrants to each Participant, but only with reference to information relating
to such Participant furnished in writing to the Registrants by or on behalf of
such Participant expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. The
liability of any Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable Securities
giving rise to such obligations.
In case any action shall be brought against any person in
respect of which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Person") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Person") in
writing and the Indemnifying Person shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Person and
payment of all fees and expenses. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the employment of such counsel has been
specifically authorized in writing by the Indemnifying Person, (ii) the
Indemnifying Person has failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and such Indemnified
Party shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Indemnifying Person (in which case the Indemnifying Person
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Indemnifying Person
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred). Any such separate firm for the Participants
and such control persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Securities sold by
all such Participants and any such separate firm for the Registrants, their
respective directors, officers and such control persons of the Registrants shall
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be designated in writing by the Registrants. The Indemnifying Person shall not
be liable for any settlement of any such action effected without its written
consent, but if settled with the written consent, the Indemnifying Person agrees
to indemnify and hold harmless any Indemnified Person from and against any loss
or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 10 business days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
If the Indemnification provided for in the first and second
paragraphs of this Section 6 is unavailable to an Indemnified Person in respect
of any losses, claims, damages, liabilities or judgments referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages, liabilities
or judgments in such proportion as is appropriate to reflect the relative fault
of the Registrants on the one hand and the Participants on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities, or judgments as well as any other relevant
equitable considerations. The relative fault of the Registrants on the one hand
and the Participants on the other hand 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 Registrants or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties shall agree that it would not be just and
equitable if contribution pursuant to the prior paragraph were determined by pro
rata allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
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forth above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Participant shall be
required to contribute any amount in excess of the amount by which proceeds
received by such Participant from sales of Registrable Securities exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section 6 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
7. Rule 144 and Rule 144A
The Registrants covenant that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Registrants are not required to file such
reports, they will, upon the request of any Holder of Registrable Securities,
make publicly available other information so long as necessary to permit sales
pursuant to Rule 144 and Rule 144A under the Securities Act. The Registrants
further covenant that they will take such further action as any Holder of
Registrable Securities may reasonably 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 (a) Rule 144 and Rule 144A under the Securities Act, as such rules
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC.
8. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority of the shares of such Registrable
Securities included in such offering and be reasonably acceptable to the
Registrants.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
-16-
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
9. Miscellaneous
(a) Remedies. In the event of a breach by the Registrants of
any of their respective obligations under this Agreement, each Holder
of Registrable Securities, in addition to being entitled to exercise
all rights provided herein, in the Declaration, the Indenture, the
Guarantee Agreement or, in the case of the Initial Purchasers, in the
Purchase Agreement or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this
Agreement. The Registrants agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of
such breach, the Registrants shall waive the defense that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Registrants have not, as
of the date hereof, entered and shall not, after the date of this
Agreement, enter into any agreement with respect to any of its
respective securities that restricts the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with
the provisions hereof. The Registrants have not entered and will not
enter into any agreement with respect to any of its respective
securities which will grant to any Person piggy-back rights with
respect to a Registration Statement.
(c) Adjustments Affecting Registrable Securities. The
Registrants shall not, directly or indirectly, take any action with
respect to the Registrable Securities as a class that would adversely
affect the ability of the Holders of Registrable Securities to include
such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Registrants have
obtained the written consent of Holders of at least a majority of
shares of Common Stock constituting, or issuable upon conversion of,
the Registrable Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable
-17-
Securities may be given by Holders of at least a majority of shares of
Common Stock constituting, or issuable upon conversion of, the
Registrable Securities being sold by such Holders pursuant to such
Registration Statement, provided that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustees)
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or
telecopier:
(i) if to a Holder of Registrable Securities, at the most
current address given by the Trustees to the Registrants; and
(ii) if to the Registrants, at 0000 Xxx Xxxx, Xxxx Xxxxx,
Xxxxxxxx 00000, Attention: General Counsel; with a copy to
Hunton & Xxxxxxxx, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: X. Xxxxxx Xxxxxxx, III.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the trustee
under the Indenture at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders of Registrable Securities;
provided, that, with respect to the indemnity and contribution
agreements in Section 6, each Holder of Registrable Securities
subsequent to the Initial Purchasers shall be bound by the terms
thereof if such Holder elects to include Registrable Securities in a
Shelf Registration; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign holds
Registrable Securities.
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(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be
a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein
and therein.
(l) Securities Held by the Registrants or Their Affiliates.
Whenever the consent or approval of holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Registrants or any of their affiliates (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders
of such required percentage.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXX & MINOR TRUST I,
a Delaware statutory business trust
By: XXXXX & MINOR, INC.,
as Sponsor
By: /s/ Xxx Xxxxx Xxxxxx
------------------------------------------------
Name: Xxx Xxxxx Xxxxxx
Title: Senior Vice President and Chief Financial
Officer
XXXXX & MINOR, INC.
By: /s/ Xxx Xxxxx Xxxxxx
------------------------------------------------
Name: Xxx Xxxxx Xxxxxx
Title: Senior Vice President and Chief Financial
Officer
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
